# Thunderhorse v. Collier

> District Court, S.D. Texas · August 28, 2025

URL: https://www.frixlaw.com/law-library/cases/11129489

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11129489

## How later opinions describe it (automated extraction)

- holding that a court may sua sponte dismiss for failure to state a claim “as long as the procedure employed is fair”
- reversing summary judgment on exhaustion grounds because the plaintiff’s declaration provided specific facts about his initial grievance and appeal

## Opinion text

IN THE UNITED STATES DISTRICT COURT August 28, 2025
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

IRON THUNDERHORSE, §
TDCJ # 00624391, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 4:22-1511
§
BRYAN COLLIER, §
§
Defendant. §

MEMORANDUM OPINION AND ORDER
Plaintiff Iron Thunderhorse, an inmate in the Texas Department of Criminal Justice–
Correctional Institutions Division (TDCJ), proceeds pro se and in forma pauperis in this
civil rights case. The defendant filed a motion for summary judgment (Dkt. 82),
Thunderhorse responded (Dkt. 91; Dkt. 92), and Collier filed a reply (Dkt. 95).
Thunderhorse then filed additional responses, appendices, and briefing (Dkt. 96-1; Dkt. 97;
Dkt. 98; Dkt. 99; Dkt. 100). The motion is ripe for decision. Having reviewed the pleadings,
the motions and briefing, the applicable authorities, and all matters of record, summary
judgment will be granted for Collier. All of Thunderhorse’s claims will be dismissed
with prejudice pursuant to Rule 56, 28 U.S.C. § 1915(e)(2)(B), and 28 U.S.C. § 1915A(b).
The Court’s reasons are explained below.
Thunderhorse’s motion to exceed the page limit (Dkt. 96), which cites his
disabilities and the length of the defendant’s briefing, among other factors, will be granted.
I. BACKGROUND
A. Procedural Background
Thunderhorse filed this case on May 11, 2022. He submitted a complaint (Dkt.1)

and an amended complaint on the Court’s form (Dkt. 7), bringing multiple, broad claims
pertaining to conditions in TDCJ, medical care, his property, and his disabilities. Because
the complaint raised numerous factual allegations and invoked multiple legal bases for his
claims, the Court entered an order for a more definite statement with detailed questions to
identify Thunderhorse’s specific claims and the supporting facts for each (Dkt. 16).

Thunderhorse filed a more definite statement and an accompanying brief (Dkt. 20; Dkt.
21). Bryan Collier, the executive director of the Texas Department of Criminal Justice, is
the sole defendant.
On November 26, 2024, on Collier’s motion, the Court dismissed multiple claims,
including all civil rights claims under 42 U.S.C. § 1983 (Dkt. 62). The only remaining

claims in this litigation are Thunderhorse’s claims under the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (ADA), and Rehabilitation Act, 29 U.S.C. § 701 et seq.
(RA) for discrimination and failure to accommodate his disabilities.1
Thunderhorse then filed a proposed amended and supplemental complaint, a motion
for leave to amend or supplement his pleadings, and a supporting brief. Relying mostly on

events after May 2022, when he filed this suit, he sought to add claims against Collier and

1 Collier’s motion to dismiss (Dkt. 46) did not seek dismissal of the plaintiff’s claims against
him in his official capacity under the ADA or RA.
six new defendants pertaining to his medical conditions, medical treatment, TDCJ’s
nutritional offerings, and conditions of his confinement. On April 25, 2025, the Court
denied leave to amend or supplement the pleadings (Dkt. 94).

Collier’s motion for summary judgment is pending. The motion is titled a motion
for partial summary judgment and seeks dismissal of all but three claims based on the
administrative exhaustion requirement or the elements of the plaintiff’s claims under the
ADA and RA (Dkt. 82, at 5). However, the motion and reply also seek dismissal of the
remaining claims because the relief sought by Thunderhorse is unavailable through this

lawsuit (id. at 26-29; see Dkt. 95 at 9-10). Therefore, the Court construes the motion as
seeking summary judgment on all claims.
Thunderhorse’s multiple filings responding to the motion, which include responses,
appendices, exhibits, and briefing, total over 1300 pages. See Dkt. 96-1; Dkt. 96-2; Dkt.
97; Dkt. 98; Dkt. 99; Dkt. 100.

B. Factual Background
As stated in the Court’s prior orders, Thunderhorse is over 80 years old, has visual
and physical disabilities, and uses a wheelchair. He was admitted to TDCJ most recently
in 2015 (Dkt. 20, at 10). In his more definite statement, he listed multiple medical
conditions relevant to his claims, including hypertension since 1985; previous concussions

in 1963, 1967, and 1991; dermatitis since 2000; degenerative lumbar spine disease since
2009; diabetes since 2008; advanced degenerative joint disease since 2009; gout since
2017; abdominal hernia since 2017; cataracts since 1992; and blindness and low vision (id.
at 18-21). He also listed multiple disabilities, including blindness; neuropathological
disorder; frozen right shoulder; degenerative lumbar spine disease; abdominal hernia;
edentulism (toothlessness); gastroesophageal reflux disease; and peripheral neuropathy of
extremities (id. at 22-25).

Collier’s motion construes Thunderhorse’s pleadings as bringing five
discrimination claims and nine accommodation claims. The relevant facts are discussed in
Sections III(B) and III(C) below, in the context of each specific claim. As relief for his
claims, Thunderhorse seeks declaratory, injunctive, and monetary relief. (Dkt. 1, at 27-28;
Dkt. 7, at 4; Dkt. 21, at 59-60).

Collier’s motion maintains that all of the plaintiff’s remaining claims in this lawsuit
pertain to conditions at the Polunsky Unit, where the plaintiff is currently assigned (Dkt.
82, at 5 (citing Dkt. 82-2 at 9 (plaintiff’s deposition testimony)). Thunderhorse’s response
does not contest this statement. The parties agree that the plaintiff was placed in restrictive
housing in July 2020 based on a disciplinary conviction, and that he was released from

restrictive housing in October 2023, while this suit was pending (see Dkt. 20, at 14-15;
Dkt. 28).
II. STANDARDS OF REVIEW

A. 28 U.S.C. § 1915A(b) and § 1915(e)
Because the plaintiff is a prisoner proceeding in forma pauperis, the Court is required
by the Prisoner Litigation Reform Act (PLRA) to dismiss the complaint at any time if it
determines that the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). A district court may dismiss a
claim as frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). A claim lacks an arguable basis in law “if it is based on an
indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.

2013) (cleaned up). It lacks an arguable basis in fact “if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are clearly
baseless.” Id. (cleaned up).
A dismissal under § 1915A(b) or § 1915(e)(2)(B) for failure to state a claim is
governed by the same standard as a motion under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002). Under this
standard, a court “construes the complaint liberally in favor of the plaintiff,” “takes all facts
pleaded in the complaint as true,” and considers whether “with every doubt resolved on
[the plaintiff’s] behalf, the complaint states any valid claim for relief.” Harrington v. State
Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009) (cleaned up). A court may

dismiss a case sua sponte and without notice to the plaintiff if the plaintiff has pleaded his
best case or if the dismissal is without prejudice. Brown v. Taylor, 829 F.3d 365, 370 (5th
Cir. 2016); see Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (holding that a court
may sua sponte dismiss for failure to state a claim “as long as the procedure employed is
fair”) (cleaned up); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (holding that

where the pleadings, viewed under the individual circumstances of the case, “demonstrate
that the plaintiff has pleaded his best case,” dismissal on the pleadings is appropriate if the
pleadings do not adequately state a cause of action).
B. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th
Cir. 2013). Once the movant presents a properly supported motion for summary judgment,
the burden shifts to the nonmovant to show with significant probative evidence the
existence of a genuine issue of material fact. Hamilton v. Segue Software Inc., 232 F.3d

473, 477 (5th Cir. 2000). “A fact is ‘material’ if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law.” Id. “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Id. The nonmoving party must present specific facts which show “the existence of a
genuine issue concerning every essential component of its case.” Firman v. Life Ins. Co.

of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (cleaned up).
In deciding a summary judgment motion, the reviewing court must “construe all
facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010) (cleaned up). A plaintiff’s statements may be sufficient
to demonstrate a genuine issue of material fact. See Bourne v. Gunnels, 921 F.3d 484, 492-

93 (5th Cir. 2019). However, the non-movant cannot avoid summary judgment simply by
presenting “conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cty., 678 F.3d
344, 348 (5th Cir. 2012) (cleaned up); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc). Rather, “[s]elf-serving affidavits and declarations, like all
summary judgment evidence, must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th
Cir. 2021) (cleaned up) (citing FED. R. CIV. P. 56(c)(4)).
Finally, Rule 56 does not impose upon a court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment. Evidence not
referred to in the response to the motion for summary judgment is not properly before the

court, even if it exists in the summary judgment record. Outley v. Luke & Assocs., Inc.,
840 F.3d 212, 217 & n.9 (5th Cir. 2016); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.
2003).
C. Pro Se Filings
In reviewing the pleadings, the Court is mindful of the fact that the plaintiff

proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal construction
and, “however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up).
Even under this lenient standard a pro se plaintiff must allege more than “‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. Regardless of how well-pleaded the factual
allegations may be, they must demonstrate that the plaintiff is entitled to relief under a valid
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
Although the plaintiff is proceeding pro se, “the notice afforded by the Rules of

Civil Procedure and the local rules” is considered “sufficient” to advise a pro se party of
his burden in opposing a summary judgment motion. Martin v. Harrison County Jail, 975
F.2d 192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence
in the summary judgment record in order to place that evidence properly before the court.
Outley, 840 F.3d at 217 & n.9; see E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir.

2014) (“Despite our general willingness to construe pro se filings liberally, we still require
pro se parties to fundamentally abide by the rules that govern the federal courts. Pro se
litigants must properly . . . present summary judgment evidence”) (cleaned up).
III. DISCUSSION
Thunderhorse claims that Collier violated the ADA and RA because he (1)

discriminated based on the plaintiff’s disabilities and (2) failed to provide reasonable
accommodations for his disabilities and limitations. Collier moves for summary judgment
and seeks dismissal of all claims based on three primary grounds: (1) for multiple claims,
the plaintiff failed to exhaust his administrative remedies; (2) for multiple claims, the
plaintiff fails to demonstrate a genuine issue of material fact on the elements of an

discrimination or accommodation claim; and (3) for all claims, the relief sought by the
plaintiff is not available.2 The Court addresses each in turn.

2 Collier also moves for summary judgment on any claims Thunderhorse brings under a state
disability statute, TEX. HUM. RES. CODE § 121.003 (Dk. 82, at 17-18). Because Thunderhorse’s
A. Exhaustion
Under the PLRA, a prisoner must exhaust available administrative remedies before
bringing under any federal law, including the ADA and RA. See 42 U.S.C. § 1997e(a);

Valentine v. Collier, 978 F.3d 154, 165 (5th Cir. 2020); Buchanan v. Harris, No. 23-20128,
2024 WL 1927651, at *3 (5th Cir. May 2, 2024). The grievance process must be completed
before a federal complaint is filed, and “[i]t is irrelevant whether exhaustion is achieved
during the federal proceeding.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
“Requiring exhaustion allows prison officials an opportunity to resolve disputes

concerning the exercise of their responsibilities before being haled into court.” Jones v.
Bock, 549 U.S. 199, 204 (2007).
The exhaustion requirement is mandatory and strictly enforced. Huskey v. Jones,
45 F.4th 827, 831 (5th Cir. 2022); Dillon, 596 F.3d at 268. The PLRA does not allow a
district court to make a “special circumstances” exception to the exhaustion provision, so

as to permit a prisoner “to pursue litigation even when they have failed to exhaust available
administrative remedies.” Ross v. Blake, 578 U.S. 632, 635 (2016); see Gonzalez, 702 F.3d
at 788 (“District courts have no discretion to excuse a prisoner’s failure to properly exhaust
the prison grievance process before filing their complaint”). Rather, the only exception is
“that statute’s built-in exception to the exhaustion requirement: A prisoner need not

exhaust remedies if they are not ‘available.’” Ross, 578 U.S. at 636; Brantner v. Freestone

response acknowledges that he did not plead this claim (Dkt. 91, at 41), it is not before the Court.
In any event, the claim would fail because prisons do not qualify as public facilities under the
statute. See Beeman v. Livingston, 468 S.W.3d 534, 543 (Tex. 2015).
Cty. Sheriff’s Office, 776 F. App’x 829, 833 (5th Cir. 2019). Although grievance
procedures are “unavailable to an inmate” when prison staff mislead the inmate regarding
the grievance process and cause the inmate to fail to exhaust the process, an inmate’s

“ignorance of the grievance procedures, without more, is no basis to deem them
unavailable.” Davis v. Fernandez, 798 F.3d 290, 295 (5th Cir. 2015) (cleaned up).
When an inmate’s grievance is against an individual prison officer, “the reviewing
officials can ordinarily expect details regarding who was involved and when the incident
occurred, or at least other available information about the incident that would permit an

investigation of the matter.” Gray v. White, 18 F.4th 463, 469 (5th Cir. 2021) (cleaned up).
A claim raised for the first time in a Step 2 appeal is not properly exhausted under the
PLRA, which requires an inmate to comply with prison procedural rules and deadlines.
See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir. 2004) (TDCJ rules require exhaustion at both stages of grievance process); Randle

v. Woods, 299 F. App’x 466, 467 (5th Cir. 2008) (because Randle did not raise the claim
at issue until Step 2 of the process, he failed to meet the exhaustion requirement).
An inmate may demonstrate a genuine issue of material fact regarding exhaustion
by providing a declaration with specific facts that are explicit and clear, such as the date of
submission and the complaint in the grievance. Favela v. Collier, 91 F.4th 1210, 1213-15

(5th Cir. 2024) (reversing summary judgment on exhaustion grounds because the plaintiff’s
declaration provided specific facts about his initial grievance and appeal). However, when
a declaration is conclusory, vague, or not based on personal knowledge, it is “fatally self-
serving” and insufficient to defeat summary judgment. Id. at 1214 (cleaned up).
In this case, Collier’s motion argues that Thunderhorse failed to exhaust many of
his claims (Dkt. 82, at 18-26; see Dkt. 82, at 20-23 (chart with citations to record); Dkt. 82-
1 (grievance records from March 1, 2020, to June 30, 2023); Dkt. 82-1, at 2 (business

records affidavit)). Thunderhorse’s summary judgment response does not address
exhaustion, although it briefly refers to separate filings (Dkt. 91, at 119 (incorporating by
reference his “arguments, evidence, and showing . . . in a separate but inclusive
memorandum”)); see Dkt. 96-1 (appendix contains argument regarding exhaustion); Dkt.
100 (supplemental memorandum regarding exhaustion); see also Dkt. 97 (296-page

appendix with some grievance records); Dkt. 99, at 107-33 (grievance records)).
As Collier argues in his reply (Dkt. 95, at 8-9), Thunderhorse’s filings make general
arguments regarding availability or other topics relevant to the exhaustion inquiry, but do
not address specific grievances or issues identified by the defendant as dispositive of his
claims. See, e.g., Dkt. 96-1, at 15 (arguing without specific reference that the plaintiff

received “numerous” grievance responses that were “impossible to unravel” because they
were “folded over” and taped, and thus that “many” grievances listed by in the defendant’s
motion were “irreparably damaged beyond repair”); id. at 17-18 (arguing that the 15-day
period for an appeal expired on certain unspecified grievances before the plaintiff received
the response); Dkt. 100, at 11 (referring to the defendant’s chart and stating that it “utilizes

the misleading and mistaken notion that every various element of [a] claim must be
exhausted”).
The exhaustion inquiry for each of Thunderhorse’s individual claims is addressed
in Sections III(B) and III(C) below, along with other issues relevant to each claim.
B. Discrimination Claims under the ADA and RA
The ADA prevents a “public entity” from discriminating against a qualified
individual based on a disability. 42 U.S.C. §§ 12132-12133; Carter as next of friend of

Carter v. City of Shreveport, 144 F.4th 809, 813 (5th Cir. 2025).3 Section 504 of the RA,
29 U.S.C. § 794, contains a provision with similar language, and courts “equate liability
standards under § 504 of the Rehabilitation Act and the ADA.” J.W. v. Paley, 81 F.4th
440, 449 (5th Cir. 2023) (cleaned up), cert. denied, 144 S. Ct. 2658 (2024). However, the
RA has more stringent standards because, unlike the ADA, it requires that the

discrimination be solely by reason of the plaintiff’s disability. Id.; T.O. v. Fort Bend Indep.
Sch. Dist., 2 F.4th 407, 416-17 & n.38 (5th Cir. 2021).
To state a claim for discrimination under ADA, a plaintiff must allege: (1) that he
has a qualifying disability; (2) that he is being excluded from or denied the benefits of
services, programs, or activities for which the public entity is responsible, or is otherwise

discriminated against by the public entity; and (3) that such discrimination is by reason of
his disability. Paley, 81 F.4th at 449; T.O., 2 F.4th at 417. 4
Collier’s motion for summary judgment construes the plaintiff’s filings as raising
five discrimination claims: (1) denied access to religious services; (2) denied recreation;
(3) denied access to dayroom activities; (4) high cell temperatures; and (5) denied transport

3 A “public entity” includes a state government or its departments and agencies, including
prisons. 42 U.S.C. § 12131(1); United States v. Georgia, 546 U.S. 151, 154 (2006).

4 Thunderhorse argues at length that he has qualifying disabilities, as required to satisfy the
first element of an ADA claim (Dkt. 91, at 49-60, 64-70). For purposes of this opinion, the Court
will assume that Thunderhorse satisfies the first element.
by wheelchair van (Dkt. 82, at 5, 12-13, 17; see Dkt. 20, at 44 (more definite statement)).
Thunderhorse’s responses to the motion do not dispute the accuracy or completeness of
Collier’s list of claims.

All five claims are subject to dismissal under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) because, in his complaint and more definite statement, Thunderhorse
failed to plead facts that could demonstrate essential elements of a discrimination claim
under the ADA and RA. His more definite statement did not comply with the Court’s
instruction to answer separately regarding each alleged denial.5 Despite the Court’s

detailed questions, he did not provide a specific date for each alleged denial, rather stating
generally that the dates of all denials “varied” and spanned a period of two to three years
before he filed his more definite statement in May 2023 (Dkt. 20, at 44). He also did not
answer the Court’s questions about the purported reasons for each alleged denial, instead
stating that the denials of multiple requests were “boilerplate,” “perfunctory,” and “mostly

arbitrary” (id.). When asked how he knew that Collier denied each service, program, or
activity because of Thunderhorse’s disability, the plaintiff answered, “because they were
requested for/because of my disabilities” (id.). Therefore, taking all pleaded facts as true,
and resolving every doubt on the plaintiff’s behalf, Thunderhorse does not adequately state
a claim for discrimination based on disability because he does not plead facts that could

5 See Dkt. 16, at 10-11 (Questions 6(f) & 6(g) ask detailed questions relevant to
discrimination claims and instruct the plaintiff to answer separately for each claim); Dkt. 20, at
44-45 (answering Questions 6(f) and 6(g) collectively for multiple alleged denials, including
denials of recreation, religious services, day room activities, and wheelchair transport).
show that the specific denials of which he complains were based on his disabilities, among
other deficiencies. See T.O., 2 F.4th at 417 (affirming dismissal of a discrimination claim
because “none of the factual allegations contained in the complaint permit the inference

that [the plaintiff] was ever discriminated against because of his disability,” which is “an
essential element of a discrimination claim”).
Additionally, for the reasons explained below, Collier is entitled to summary
judgment on the first, third, and fourth claims based on the administrative exhaustion
requirement, and further grounds for summary judgment apply to some claims. Finally, as

discussed fully below in Section III(D) of this opinion, the injunctive, monetary, and
declarative relief Thunderhorse seeks for all discrimination claims is unavailable.
1. Access to Religious Services
Thunderhorse claims that Collier denied him access to religious services because of
his disability (Dkt. 20, at 44). Collier presents evidence that, although Thunderhorse fully

exhausted his remedies regarding his request for a communal religious meal, he did not
exhaust a claim regarding access to religious services (Dkt. 82, at 23; see Dkt. 82-1, at 290-
93).6 In response to these arguments, Thunderhorse states only that he wrote “countless”
grievances, citing without specific reference to a separate memorandum and evidence (Dkt.
91, at 30). This conclusory assertion is insufficient to defeat the summary judgment

evidence of non-exhaustion presented by Collier. See Favela, 91 F.4th at 1214 (conclusory

6 Additionally, because Thunderhorse submitted the cited grievance regarding a religious
meal on July 30, 2022, after he filed this lawsuit, the grievance could not properly exhaust his
claim. See Gonzalez, 702 F.3d at 788.
and vague statements are insufficient to demonstrate a genuine issue of material fact
regarding exhaustion); Gray, 18 F.4th at 469 (a grievance must provide details of a
particular incident sufficient to permit investigation); Outley, 840 F.3d at 217 & n.9 (even

if evidence exists in the summary judgment record, it is not properly before the court if the
plaintiff does not specifically refer to it). Because Thunderhorse does not demonstrate a
genuine issue of material fact as to whether this claim was properly exhausted, Collier is
entitled to summary judgment on this basis.
Collier also argues that Thunderhorse has not demonstrated a genuine issue of

material fact as to whether the alleged denial of access to religious services was based on
his disability. He cites to Thunderhorse’s acknowledgement at deposition that, at the
relevant time, his movement around the unit was limited because he was assigned to
restrictive housing (Dkt. 82, at 12-13 (citing Dkt. 82-2, at 13-15)). Collier also presents
TDCJ’s restrictive housing plan, which permits certain religious meals or personal items

in restrictive housing but does not explicitly permit attendance at religious services. See
Dkt. 82-3, at 10, 17 (plan allows for alternate meal service to comply with approved
religious diet); id. at 29 (plan allows possession of approved religious books or articles that
are necessary for the practice of religion and do not violate prison security). Finally, Collier
cites to Thunderhorse’s admission at deposition that he was not prevented from practicing

his religion in his cell while in restrictive housing (Dkt. 82-2, at 15-16).
Thunderhorse’s responsive briefing does not cite to competent summary judgment
evidence that could show demonstrate a genuine issue of material fact as to whether the
alleged exclusion from religious services was based on his disability (see Dkt. 91, at 28-
30). Because this showing is a required element of his claim, summary judgment will be
granted for Collier.
2. Recreation

Thunderhorse claims that Collier denied him access to recreational programs or
activities because of his disability (Dkt. 20, at 44; see Dkt. 91 at 28-30). Collier did not
move for summary judgment based on exhaustion or the elements of Thunderhorse’s
recreation claim, although he seeks dismissal of all claims based on available relief, as
discussed fully in Section III(D) of this opinion.

As explained above, Thunderhorse’s pleadings do not allege facts that could show
that Collier denied him access to recreation programs based on his disability. His more
definite statement failed to comply with the Court’s instructions and did not provide a
specific date for the denial, the purported reason for the denial, or facts that could
demonstrate that the denial was based on a particular disability (Dkt. 20, at 44). Based on

his multiple pleadings (Dkt. 1; Dkt. 7; Dkt. 20) and voluminous briefing in this case, the
Court is satisfied that Thunderhorse has pleaded his best case. See Brown, 829 F.3d at
370; Bazrowx, 136 F.3d at 1054. The Court therefore will dismiss his claim for failure to
state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C.
§ 1915A(b); see T.O., 2 F.4th at 417 (required elements of disability claim). The analysis

of available relief, below, provides an additional basis for dismissal.
3. Access to Dayroom Activities
Thunderhorse claims that Collier has denied him access to dayroom activities
because of his disability (Dkt. 20, at 44). Collier presents evidence that Thunderhorse
failed to exhaust his administrative remedies for this claim because he filed two Step 1
grievances on the issue but did not appeal to Step 2. See Dkt. 82, at 23 (listing two Step 1
grievances regarding “solitary conditions” for which Step 2 appeals were not filed); Dkt.

82-1, at 68-75, 177-78). An inmate must to pursue a grievance through both stages of
TDCJ’s grievance process in order for the claim to be properly exhausted. Johnson, 385
F.3d at 515. As stated above in the discussion of Thunderhorse’s claim regarding religious
services, his conclusory assertion that he filed countless grievances is insufficient to defeat
summary judgment on this issue. Therefore, Collier is entitled to judgment.

Collier also argues that Thunderhorse has not demonstrated a genuine issue of
material fact as to whether he was denied access to the dayroom based on his disability.
As with Thunderhorse’s claim regarding religious services, Collier maintains that the
denial was caused by the plaintiff’s assignment to restrictive housing at the time, citing to
the restrictive housing plan. See Dkt. 82, at 12-13; Dkt. 82-2, at 13-15 (plaintiff’s

deposition testimony); Dkt. 82-3 (restrictive housing plan)). Thunderhorse’s responsive
briefing does not direct the Court’s attention to evidence that could show a genuine issue
of material fact as to whether the restrictions on his dayroom access were based on his
disability (Dkt. 91, at 28-30). Summary judgment will be granted for Collier on this
additional basis.

4. High Cell Temperatures
Collier moves for summary judgment on the plaintiff’s claim that high temperatures
in his housing amounted to discrimination based on his disability. It appears that
Thunderhorse raised this issue only in his deposition testimony, and not in his complaint
(Dkt. 82, at 12 (citing Dkt. 82-2, at 5-6); Dkt. 95, at 3-4). The more definite statement also
did not list cell temperatures as an incident of alleged discrimination (Dkt. 20, at 44).
To the extent the claim is before the Court, it will be dismissed. Although

Thunderhorse asserts in his briefing that he needs air conditioning due to his medical
condition and medications, and that the air conditioner at the Polunsky Unit does not
adequately cool the portion of the building where he is housed (Dkt. 91, at 31-33), his
briefing does not clearly allege that a specific temperature was required, an actual
temperature in his cell, or dates of the allegedly high temperatures. Moreover, he does not

allege that he was denied the benefit of lower temperatures because of his disability. See
Paley, 81 F.4th at 449. Therefore, because the plaintiff does not identify specific facts that
could satisfy required elements of a claim for discrimination, the claim will be dismissed
on summary judgment and for failure to state a claim upon which relief can be granted.
See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

Additionally, Collier presents evidence that Thunderhorse did not exhaust his
remedies for this claim because, although he completed both stages of the administrative
process for Grievance 2021140257, he complained about heat only in the Step 2 appeal
and not at Step 1 (Dkt. 82, at 20; Dkt. 82-1, at 236-39 (Grievance 2021140257)). A claim
raised for the first time in a Step 2 appeal is not properly exhausted under the PLRA.

Woodford, 548 U.S. at 92-93; Randle, 299 F. App’x at 467. Collier also presents records
reflecting that Thunderhorse filed Grievance 2020129646 regarding heat but that the Step
1 grievance was not processed (Dkt. 82, at 20; Dkt. 82-1, at 76-77 (Grievance
2020129646)). Because he did not pursue both stages of the grievance process, this claim
also is unexhausted. See Johnson, 385 F.3d at 515. Thunderhorse’s conclusory statements
that he grieved his complaints are insufficient to demonstrate a genuine issue of material
fact regarding exhaustion, and summary judgment will be granted for Collier on this

additional basis.
5. Transport by Wheelchair Van
Thunderhorse claims that officials denied him transport by a wheelchair van (Dkt.
20, at 44). As with the other claims above, Thunderhorse’s more definite statement did not
answer the Court’s specific questions about this claim. He thus does not identify facts that

could satisfy the required elements of discrimination and fails to state a claim on which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Additionally, Collier argues that Thunderhorse does not demonstrate a genuine issue
of material fact as to whether TDCJ’s failure to use a wheelchair van was discriminatory.
Collier cites to an administrative grievance indicating that, because a wheelchair van was

not available at the Polunksy Unit, the plaintiff instead was transported by ambulance (Dkt.
82, at 17; see Dkt. 82-1, at 282-83). In response, Thunderhorse argues that his medical
restrictions “indicate” routine transportation in a wheelchair van, citing a medical
authorization on January 28, 2022, and UTMB policy (Dkt. 91, at 27-28). This response
does not demonstrate a genuine issue of material fact as to whether TDCJ’s alleged failure

to provide transport in a wheelchair van was caused by discrimination based on his
disability. See Paley, 81 F.4th at 449; Young v. TDCJ, No. H-18-4050, 2020 WL 7865709,
at *13 (S.D. Tex. Dec. 30, 2020) (dismissing discrimination claim under the ADA and RA
because the plaintiff “does not allege facts showing that the defendants violated his rights
by offering transportation in a multi-person vehicle when a wheelchair van was not
available or that he was denied transportation to medical appointments because of his
disability”). Summary judgment will be granted for Collier.

C. Accommodation Claims under the ADA and RA
As stated above, a plaintiff bringing a discrimination claim under ADA must show
that he has a qualifying disability; that he is being excluded from or denied the benefits of
services, programs, or activities for which the public entity is responsible, or is otherwise
discriminated against by the public entity; and that such discrimination is by reason of his

disability. Paley, 81 F.4th at 449. The third prong may be satisfied by a plaintiff’s showing
that the public entity failed to make a “reasonable accommodation.” Carter, 144 F.4th at
814; Valentine v. Collier, 993 F.3d 270, 290 (5th Cir. 2021). To succeed on a failure-to-
accommodate claim, a plaintiff must prove: “(1) he is a qualified individual with a
disability; (2) the disability and its consequential limitations were known by the covered

entity; and (3) the entity failed to make reasonable accommodations.” Smith v. Harris Cty.,
Tex., 956 F.3d 311, 317 (5th Cir. 2020). The knowledge requirement in the second element
is satisfied when “either (1) the plaintiff specifically identifies the disability and resulting
limitations and requests an accommodation in direct and specific terms or (2) the disability,
resulting limitations, and necessary reasonable accommodation were open, obvious, and

apparent to the entity’s relevant agents.” Carter, 144 F.4th at 814 (cleaned up).
“An accommodation is reasonable if it does not impose undue financial or
administrative burdens or fundamentally alter the nature of the service, program or
activity.” Smith, 956 F.3d at 317 (cleaned up). In making this determination for
incarcerated plaintiffs, the court’s inquiry “is informed by the context of this suit—a
correctional facility—and . . . [accords] deference” to correctional officials. Wells v.
Thaler, 460 F. App’x 303, 313 (5th Cir. 2012).

Collier’s motion for summary judgment construes Thunderhorse’s filings as
alleging that TDCJ officials denied him nine accommodations: (1) dental prostheses; (2) a
four-point cane; (3) a wheelchair-accessible shower and tub; (4) a handicap sink and toilet
with railings; (5) a television low enough for the plaintiff to reach; (6) a storage locker
bolted to the wall; (7) ice water; (8) specialty handcuffs; and (9) various medical procedures

and appointments (Dkt. 82, at 4-5; see Dkt. 20, at 41-43 (more definite statement)). As
with the discrimination claims, Thunderhorse’s responses to the motion do not argue that
Collier’s list of accommodation claims is inaccurate or incomplete.
All nine claims are subject to dismissal because Thunderhorse has failed to plead
facts that could demonstrate essential elements of an accommodation claim under the ADA

and RA. Although Thunderhorse lists seven of the nine claims as allegedly denied
accommodations in his more definite statement,7 he did not comply with the Court’s
instruction to answer separately regarding each alleged denial.8 Despite the Court’s
detailed questions, he did not provide a specific date for each requested accommodation or

7 The more definite statement does not identify ice water or specialty handcuffs as denied
accommodations (Dkt. 20, at 41-42).

8 See Dkt. 16, at 9-10 (Questions 6(d) and 6(e) require the plaintiff to identify all requested
accommodations and instruct him to answer separately for each denied accommodation); Dkt. 20,
at 38-43 (answering Questions 6(d) and 6(e) collectively for multiple allegedly denied
accommodations).
the denial; did not explain specifically why each requested accommodation was necessary;
did not provide officials’ reasons for each denial; and did not state how he was harmed by
each denial. Instead, he asserted that multiple requested accommodations, collectively,

were “denied or refused” between 2019 and 2023 for “boilerplate” reasons and that they
would have “enable[d] [him] to better perform tasks of daily living” (Dkt. 20, at 42-43).
Thunderhorse does not plead facts that could show that the relevant disability and limitation
was known to TDCJ, that the specific accommodation at issue was directly requested or
was “open, obvious, and apparent” to TDCJ, or that TDCJ failed to provide an

accommodation that was reasonable, among other elements. See Smith, 956 F.3d at 317-
18. Thus, taking all pleaded fast as true, he fails to state an accommodation claim upon
which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Furthermore, Collier is entitled to summary judgment on some accommodation
claims on exhaustion grounds, and additional grounds for summary judgment apply to

some claims, as set out below. Finally, the relief Thunderhorse seeks for all
accommodation claims is unavailable, as discussed in Section III(D) of this opinion.
1. Dental Prostheses
In his more definite statement, Thunderhorse alleges that he was denied dental
prostheses as an accommodation (Dkt. 20, at 41). For the reasons stated above, the more

definite statement does not adequately allege facts that could demonstrate essential
elements of an accommodation claim and the claim will be dismissed under 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
Additionally, Collier seeks dismissal of the claim based on failure to exhaust
administrative remedies. He presents evidence that Thunderhorse submitted his Step 1
grievance in February 2023, approximately nine months after his complaint in May 2022
(Dkt. 82, at 23, 24-25 (citing Dkt. 82-1, at 298-301 (Grievance 2023065888)); see

Gonzalez, 702 F.3d at 788 (grievance process must be completed before complaint is
filed)). Moreover, the grievance requested a mechanical diet and not a dental prosthesis,
and thus would not have fulfilled the exhaustion requirement even if completed before this
suit. See Gray, 18 F. 4th at 469. The plaintiff’s responsive briefing does not demonstrate
a genuine issue of material fact regarding exhaustion of this claim. Thus, Collier is entitled

to summary judgment on exhaustion grounds.
2. Four-Point Cane
Thunderhorse alleges that officials denied him a reasonable accommodation when
they did not provide him with a four-point cane. The plaintiff did not raise this issue in his
complaint, but only in his more definite statement (Dkt. 20, at 41). As stated above, his

more definite statement fails to provide all required information and is inadequate to plead
required elements of this claim.
The defendant’s motion argues that Thunderhorse fails to show a genuine issue of
material fact because he does not identify facts that could show that officials denied him a
reasonable accommodation. He presents records indicating that medical personnel denied

the plaintiff a cane due to concerns for his safety (Dkt. 80-7, at 4-5 (physical therapy for
dated Sept. 27, 2022, states that Thunderhorse was not “appropriate for a quad cane at this
time . . . as [his] visual deficits create a high fall risk since [he] has to use [a] blind stick
also”); Dkt. 82-1, at 261 (grievance response dated Nov. 16, 2021 states, “When the
provider determined you were not steady enough to be assigned a cane you were issued a
wheelchair”)). Thunderhorse’s response does not address this point.
Although Thunderhorse apparently preferred and requested a cane, his preference

is insufficient to show a genuine issue of material fact as to whether the cane was a
reasonable accommodation. See Smith, 956 F.3d at 317-18; Nottingham v. Richardson, 499
F. App’x 368, 377 (5th Cir. 2012). To the contrary, the uncontroverted summary judgment
evidence shows that officials denied the cane based on medical personnel’s assessment of
his medical need. Therefore, summary judgment will be granted for Collier.

3. Wheelchair-Accessible Shower and Tub
Thunderhorse claims that, after he was placed in restrictive housing due to a
disciplinary case, officials no longer permitted him to leave his cell to use the wheelchair-
accessible shower or tub, instead requiring him to use a caged shower with a steel door and
a nine-inch curb (Dkt. 1, at 12-13; Dkt. 20, at 38-39, 41). At deposition, he testified that

he refused to use the caged shower because he was at risk of injuring himself, and instead
sponge-bathed in his cell (Dkt. 82-2, at 12-13). Because the plaintiff did not respond to
the Court’s questions and fails to allege facts that could prove an accommodation claim
(Dkt. 20, at 41), the claim will be dismissed for failure to state a claim upon which relief
can be granted.

Additionally, Collier argues that this claim must fail because Thunderhorse admitted
at deposition that officials accommodated his disability while in restrictive housing by
providing a foot bath for sponge-bathing (Dkt. 82, at 14-15 (citing Dkt. 82-2, at 13)).
Collier presents evidence that restrictive housing is a maximum-custody status that
“separate[s] an offender from general population” in order to “maintain[] safety, security,
and order among offenders, staff, and the public” (Dkt. 82-3, at 12), and argues that the
shower restriction was reasonable based on the plaintiff’s assignment to restrictive housing

at the time. He further argues that providing a foot bath for sponge-bathing was a
reasonable accommodation (Dkt. 82, at 14-15; Dkt. 95, at 5-6).
In his opposition to summary judgment, Thunderhorse argues that the caged shower,
which had a nine-inch curb, was not compliant with standards under the ADA and RA. He
also disputes Collier’s statement that he refused to use the caged shower, instead stating

that he could not use the shower without hurting himself (Dkt. 91, at 22-24). Whether or
not the caged shower was compliant with the ADA, Collier has presented evidence that
Thunderhorse received equipment for sponge-bathing as a reasonable accommodation.
Thunderhorse does not dispute this evidence or argue that the accommodation was
unreasonable under the ADA or RA. Because Thunderhorse has not demonstrated a

genuine issue of material fact on this issue, summary judgment will be granted for Collier.
4. Handicap Sink and Toilet with Railings
Thunderhorse claims in his more definite statement that officials denied him a
reasonable accommodation when they denied his request for a handicap sink and toilet,
with railings, in his cell (Dkt. 20, at 40-41; see id. at 38 (alleging that his cell at the

Polunsky Unit lacked a handicap sink and toilet)). Collier did not move for summary
judgment based on exhaustion or the elements of this claim, although he seeks dismissal
of all claims based on available relief, as discussed fully in Section III(D) of this opinion.
Thunderhorse alleges that, without a handicap sink and toilet, he loses his balance,
has bruises, and has trouble flushing the toilet and using the faucet (Dkt. 20, at 40, 43; see
Dkt. 91, at 17-18). He also states without elaboration that he was harmed because he was
not “able to . . . toilet” (Dkt. 20, at 43). However, he did not comply with the Court’s

instructions to identify the specific accommodation he requested, the date of his request,
the response he received from officials, or the purported reasons for the denial, but only
asserted that multiple requested accommodations, collectively, were “denied or refused”
between 2019 and 2023 (id. at 42-43). Therefore, even taking all allegations as true, the
plaintiff has not pleaded facts that could demonstrate that TDCJ officials knew about his

disability and consequential limitations relevant to a sink and toilet with railings, nor that
a necessary, reasonable accommodation was requested or obvious. See Carter, 144 F.4th
at 814; Smith, 956 F.3d at 317. Given his complaint, amended complaint, more definite
statement, and voluminous briefing on summary judgment, the Court is satisfied that
Thunderhorse has pleaded his best case on this claim. See Brown, 829 F.3d at

370; Bazrowx, 136 F.3d at 1054. Therefore, the Court will dismiss his claim for failure to
state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C.
§ 1915A(b).
Additionally, to the extent the claim is properly pleaded and the plaintiff states a
claim upon which relief can be granted, summary judgment will be granted for Collier

because none of the relief Thunderhorse seeks for this claim is available, as discussed
below in Section III(D).
5. Lowered Television
Thunderhorse argues that officials denied him a reasonable accommodation for the
television in his cell because the television was too high for him to reach. Although this
claim was not in his initial complaint, he raised it in his more definite statement (Dkt. 20,
at 39, 41-43). As with the claims above, his more definite statement does not adequately

plead the elements of an accommodation claim. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C.
§ 1915A(b).
Additionally, Collier moves for summary judgment on this claim. He explains that,
when Thunderhorse was first arrived at the Polunsky Unit in May 2020, he was assigned
to Cell 9 in the infirmary, or “10 building,” and that he later was transferred to Cell 10 in

the same building (Dkt. 82, at 6-7 (citing Dkt. 1, at 7; Dkt. 20, at 39)).
Regarding the television in Cell 9 of the infirmary, Collier presents evidence that
Thunderhorse’s requested accommodation was granted. Thunderhorse’s more definite
statement acknowledges that, when he lived in Cell 9, “maintenance lowered [his] TV so
[he] could reach the controls” (Dkt. 20, at 39). His summary judgment response asserts

that the television in Cell 9 was “merely lowered four inches” (Dkt. 91, at 13). However,
to the extent Thunderhorse argues that the granted accommodation was not reasonable,
Collier presents evidence that he failed to exhaust any claim regarding an inadequate
accommodation (Dkt. 82, at 22 (citing grievance records); see Dkt. 82-1, at 98-99 (Step 1
grievance regarding television in Cell 9 was unprocessed); Dkt. 82-1, at 100-01 (same);

Dkt. 82-1, at 22-23 (no appeal filed from Step 1 grievance regarding television in Cell 9)).
Thunderhorse’s responsive filings fail to demonstrate a genuine issue of material fact on
the exhaustion issue.
Regarding the television in Cell 10, the plaintiff alleges that the television also was
too high and that his grievances were not answered (Dkt. 20, at 39). Collier presents
evidence that Thunderhorse did not complete the grievance process before filing suit in
May 2022 (Dkt. 82, at 22, 24 (citing grievance records); see Dkt. 82-1, at 194-95 (Step 1

grievance regarding television in Cell 10 filed on June 12, 2023)). Thunderhorse does not
directly respond to this argument (Dkt. 91, at 13-16). Therefore, summary judgment will
be granted for Collier on exhaustion grounds regarding the television in Cell 10. See
Gonzalez, 702 F.3d at 788.
6. Bolted Storage Locker

Thunderhorse alleges in his more definite statement that officials denied him a
reasonable accommodation for his disabilities when they did not bolt his storage locker to
the wall (Dkt. 20, at 41). Collier did not move for summary judgment based on exhaustion
or the elements of this claim, but he seeks dismissal of all claims based on available relief,
as discussed fully below.

As with other claims, Thunderhorse did not answer the Court’s detailed questions
regarding the locker and thus did not provide basic facts about his claim, including the date
of his request for a bolted locker, the date of the alleged denial, the purported reason for
the denial, or why this accommodation was necessary. His summary judgment briefing
also does not identify specific facts supporting these elements of the claim (Dkt. 91, at 19-

22). Among other deficiencies, he has not pleaded facts that could demonstrate that TDCJ
officials knew about his disability and consequential limitations, nor that they denied him
a necessary, reasonable accommodation that was requested or obvious. See Carter, 144
F.4th at 814; Smith, 956 F.3d at 317.
The Court is satisfied that, given Thunderhorse’s multiple pleadings and responses,
he has pleaded his best case on this claim. See Brown, 829 F.3d at 370; Bazrowx, 136 F.3d
at 1054. His claim will be dismissed for failure to state a claim on which relief can be

granted. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Additionally, to the extent the claim is properly pleaded and the plaintiff states a
claim upon which relief can be granted, the relief he seeks is not available, as discussed
below.
7. Ice Water

Collier’s motion seeks summary judgment regarding Thunderhorse’s claim that he
was denied ice water as an accommodation for a qualifying disability. Thunderhorse
alleges in a brief, but not a pleading, that he was denied ice water in the infirmary on
unspecified dates (Dkt. 21, at 42-43). As stated above, his more definite statement did not
answer the Court’s questions regarding an accommodation claim on this basis and is

inadequate to plead the required elements of a claim. Moreover, the plaintiff acknowledges
in his summary judgment response that officials at the Polunksy unit provided inmates in
the infirmary with ice water “upon request” until 2023 (Dkt. 91, at 32), which is after this
lawsuit was filed, and the Court has not granted him leave to supplement his pleadings.
Therefore, he fails to plead a viable claim for accommodation and his claim will be

dismissed. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Additionally, Collier presents evidence that Thunderhorse did not fully exhaust a
claim regarding the provision of ice water (Dkt. 82, at 23 (listing one unprocessed
grievance and one unappealed grievance); see Dkt. 82-1, at 36-37 (unappealed grievance);
Dkt. 82-1, at 83-84 (unprocessed grievance)). The plaintiff’s responsive briefing does not
demonstrate a genuine issue of material fact regarding exhaustion of this claim (Dkt. 91, at
31-33). Summary judgment therefore will be granted for Collier on this basis.

8. Specialty Handcuffs
Thunderhorse alleges that, after he arrived at the Polunsky Unit, Dr. Ernestine Julye
changed his special-needs handcuff pass to “conform[] to security’s wishes,” causing him
“extreme pain and suffering” due to his “frozen shoulder” (Dkt. 1, at 15; see Dkt. 20, at 23
(stating he is limited by a frozen shoulder)). Thunderhorse’s more definite statement did

not list specialty handcuffs as a denied accommodation (id. at 41). Because his complaint
does not identify facts that could satisfy the elements of an accommodation claim, and
because his more definite statement does not answer the Court’s specific questions
regarding such a claim, his claim will be dismissed for failure to state a claim upon which
relief can be granted. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

Additionally, Collier seeks summary judgment on the claim, arguing that Dr. Julye’s
decision rested on her medical judgment and not on security concerns (Dkt. 82, at 16
(citing Nottingham, 499 F. App’x at 377)). Thunderhorse does not directly respond to the
argument and does not demonstrate a genuine issue of material fact as to whether officials
denied him a reasonable accommodation. See Smith, 956 F.3d at 317-18.

9. Medical Procedures and Appointments
Thunderhorse’s more definite statement lists various medical issues as denied
accommodations, including a fourth eye surgery (corneal transplant), eyelid follow-up
surgery, access to a neurology clinic, and follow-up appointments with allergy and
dermatology clinics (Dkt. 20, at 41-42).9 He concedes in his summary judgment response
that he received four eye operations and three corneal transplants during his incarceration
and, subsequently, “deci[ded] not to have any additional transplants” (Dkt. 91, at 25).

To the extent Thunderhorse brings an accommodation claim regarding medical
issues, the claim will be dismissed for failure to state a claim upon which relief can be
granted. As with other accommodations claims above, the plaintiff did not follow the
Court’s instructions to provide the date of his request or the alleged denial, why each
requested accommodation was necessary, the reasons for the denial, or how he was harmed

by the denial (Dkt. 20, at 42-43). He thus fails to plead facts that could show that he
requested and was denied a specific accommodation or that a necessary and reasonable
accommodation was requested from officials or obvious to them. See Smith, 956 F.3d at
317-18.10
Collier moves for summary judgment on these claims, arguing that the plaintiff

merely challenges decisions by medical providers and thus fails to state a valid claim under
the ADA or RA for a denied accommodation (Dkt. 82, at 8, 15-17) (citing, inter alia,
Nottingham, 499 F. App’x at 377 (even in cases in which medical care is denied, “[t]he

9 His claims regarding denied requests for dentures, a four-point cane, specialty handcuffs,
and transport by wheelchair van are discussed above and need not be further addressed here.

10 Additionally, to the extent Thunderhorse’s pleadings could be construed as alleged
disability discrimination in medical decisions, his more definite statement did not answer the
Court’s questions about when he was denied a specific benefit, who denied him the benefit, or the
purported reason for the denial (Dkt. 20, at 44). He thus does not plead facts that could show
discrimination under the ADA or RA. See Paley, 81 F.4th at 449.
ADA is not violated by “a prison’s simply failing to attend to the medical needs of its
disabled prisoners”). Thunderhorse’s briefing fails to demonstrate a genuine issue of
material fact on the claim (Dkt. 91, at 25-28). Therefore, summary judgment will be

granted for Collier.
D. Relief
The defendant seeks summary judgment and dismissal of all of Thunderhorse’s
claims because the relief he seeks is unavailable (Dkt. 82, at 26-29; Dkt. 95, at 9-10).
Thunderhorse’s original complaint sought (1) a declaratory judgment in his favor

under the Constitution, federal law, state law, and international law, (2) an injunction
ordering the defendant to transfer him to the Connecticut Department of Corrections and
to submit a “comprehensive plan” to release other similarly situated inmates or place them
in nursing facilities, and (3) compensatory damages in the amount of $15,000 for
unspecified claims, among other relief (Dkt. 1, at 27-28). His amended complaint

incorporated by reference the relief sought in his original complaint.11 Although the Court
later instructed Thunderhorse to state specifically the relief he sought, his more definite
statement did not answer the Court’s questions.12 However, in a brief submitted with his

11 The amended complaint was filed on the Court’s form, which instructs the plaintiff to
“[s]tate briefly exactly what you want the court to do for you” (Dkt. 7, at 4).

12 See Dkt. 16, at 13 (order for more definite statement instructed Thunderhorse to “[s]tate
specifically the declarations that you seek” from the Court (Question 10); to “[s]tate what you want
the Court to order Collier to do or stop doing” (Question 11); and to “[e]xplain why you believe
that Collier should be liable for [monetary] damages” (Question 12)). Thunderhorse’s more
definite statement skipped from Question 9 to Question 13 (Dkt. 20, at 48).
more definite statement, Thunderhorse requested injunctive relief in the form of “transfer
to my domicile/place of birth Connecticut to live out my term under constitutionally
adequate conditions until [his] death or release” and “receivership” for others “similarly

situated”; compensatory damages of $500 for “destroyed property”; punitive damages of
$1,000 to “redress ongoing violations” of law and “prior agreements”; and a declaration
regarding “violations proven at trial” and Collier’s duty to correct the violations (Dkt. 21,
at 59-60).
The Court is satisfied that the plaintiff has had ample opportunity to specifically

plead his requests for relief and has pleaded his best case. See Brown, 829 F.3d at
370; Bazrowx, 136 F.3d at 1054.
1. Injunctive Relief
Collier argues that Thunderhorse’s request for injunctive relief is overbroad, citing
18 U.S.C. § 3626 (Dkt. 82, at 28-29). Thunderhorse seeks a transfer to Connecticut to

finish his sentence “under constitutionally adequate conditions” (Dkt. 21, at 60; see Dkt.
91, at 123 (requesting “all injunctive relief necessary to protect him from intentional
discrimination as well as his right to equal protection of all constitutional rights”); Dkt. 96-
1, at 23-25 (citing TDCJ policy and caselaw)).
A prisoner may not obtain a prospective relief under the PLRA unless the court first

finds that such relief is narrowly drawn, extends no further than necessary to correct the
harm the court finds requires preliminary relief, and is the least intrusive means necessary
to correct the harm. See 18 U.S.C. § 3626(a)(2). In considering a prisoner’s request for
prospective relief, the reviewing court “shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system” caused by the relief and shall
respect the certain principles of comity where state or local law is concerned. 18 U.S.C.
§ 3626(a)(1); see Bell v. Wolfish, 441 U.S. 520, 547 (1979) (prison administrators are

accorded wide-ranging deference in the adoption and execution of policies that, in their
judgment, are needed to preserve internal order and discipline in the daily operations of the
prison system).
Here, Thunderhorse does not demonstrate that his request for a transfer to
Connecticut or a receivership for other inmates is narrowly drawn or the least intrusive

means necessary to correct any alleged violation of the ADA or RA.13 Therefore, summary
judgment will be granted for Collier on this issue and his request for injunctive relief will
be denied.
2. Damages
Collier argues that the relevant sections of the ADA and RA do not permit

compensatory damages unless the plaintiff shows intentional discrimination and,
additionally, do not permit damages for pain and suffering or emotional distress (Dkt. 82,
at 26-27; Dkt. 95, at 9-10). To successfully bring a claim for monetary damages under the
ADA, a plaintiff must show intentional discrimination. Paley, 81 F.4th at 449-50; T.O., 2

13 Thunderhorse’s briefing argues that prison transfers can be appropriate injunctive relief,
citing multiple cases decided before the PLRA was enacted (Dkt. 96-1, at 23-25). He also cites to
Brown v. Plata, 563 U.S. 493 (2011), a case in which the Supreme Court affirmed a three-judge
panel’s holding that, based on proven violations of the Eighth Amendment in California prisons
and other factors, the injunctive relief ordered by the panel was authorized by the PLRA and
permissible under § 3626. These authorities do not support a claim that a transfer to Connecticut
is appropriate injunctive relief in this case.
F.4th at 417 (discrimination claim); Smith, 956 F.3d at 317-18 (accommodation claim).
Thunderhorse’s summary judgment response does not engage Collier’s arguments
and does not demonstrate a genuine issue of material fact as to whether he is entitled to

monetary damages. See Dkt. 91, at 122-23; Dkt. 96-1, at 22-23. Therefore, summary
judgment will be granted on this basis. See Outley, 840 F.3d at 217 & n.9 (even if evidence
exists in the summary judgment record, it is not properly before the court if the plaintiff
does not specifically refer to it).14
Collier also seeks dismissal of Thunderhorse’s demand for punitive damages.

Because punitive damages are not available under provisions regarding the ADA or RA
provisions regarding public entities such as prisons, see Barnes v. Gorman, 536 U.S. 181,
189 (2002), summary judgment will be granted on this issue and all claims for punitive
damages will be dismissed.
3. Declaratory Relief

The Declaratory Judgment Act states that a federal court, upon the filing of an
appropriate pleading, may declare the rights of an interested party. 28 U.S.C. § 2201. The
act “confers a discretion on the courts rather than an absolute right upon the litigant.”
Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (cleaned up); see Orix Credit Alliance,
Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000) (a court has “broad discretion to decide or

14 Additionally, Thunderhorse’s more definite statement seeks compensatory damages only
for his property claims (Dkt. 21, at 60). Since the time he filed the statement, the Court has
dismissed these claims (Dkt. 62). Therefore, all requests for compensatory damages have been
dismissed.
dismiss a declaratory judgment action”). A request for declaratory judgment is subject to
dismissal if the plaintiff does not plead a substantive claim or pleads insufficient facts.
Warren v. Bank of Am., N.A., No. 3:11-CV-3603-M, 2012 WL 3020075, at *7 (N.D. Tex.

June 19, 2012), report and recommendation adopted, 2013 WL 1131252 (N.D. Tex. Mar.
19, 2013), aff’d, 566 F. App’x 379 (5th Cir. 2014).
In this case, Thunderhorse’s original complaint and amended complaint requested
no specific declarations, other than a declaration that unidentified “acts” of the defendant
violate the consent decree in Ruiz v. Estelle, Civil Action No. 4:78-0987 (S.D. Tex.). See

Dkt. 1, at 28; Dkt. 7, at 4. Although the Court’s order for a more definite statement
instructed Thunderhorse to “[s]tate specifically the declarations that you seek,” (Dkt. 16 at
13 (Question 10)), his brief accompanying his more definite statement requests only a
declaration of “violations proven at trial” and Collier’s duty to redress the violations (Dkt.
21, at 59; see Dkt. 91, at 123 (the plaintiff’s summary judgment response states without

elaboration that he “is entitled to declaratory relief”)).
The Court is satisfied that Thunderhorse has pleaded his best case for declaratory
judgment. See Brown, 829 F.3d at 370. Because he has not identified specific declarations
he seeks for alleged violations of the ADA and RA, the Court in its discretion will dismiss
his request for declaratory judgment. See Warren, 2012 WL 3020075, at *7. The

substantive rulings throughout this opinion further support dismissal of his request. See
Yager v. Stroman, No. 1-17-CV-00217-ADA, 2020 WL 2615759, at *11 (W.D. Tex. May
22, 2020) (“if a request for a declaratory judgment adds nothing to an existing lawsuit, it
need not be permitted,” citing Pan-Islamic Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th
Cir. 1980)).
IV. CONCLUSION
For the reasons stated above the Court now ORDERS as follows:
1. The plaintiff's motion to exceed the page limit (Dkt. 96) is GRANTED.
2. The defendant’s motion for summary judgment (Dkt. 82) is GRANTED.
3. All of the plaintiff's claims are DISMISSED with prejudice under Rule 56,
28 U.S.C. § 1915(e)(2)(B), and 28 U.S.C. § 1915A(b).
The Clerk will provide a copy of this order to the parties.
SIGNED at Houston, Texas, on August 28 , 2025.
— rewrae 0 HonQQr
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

37/37

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11129489. Public record. Not legal advice.