Gregory v. Texas Department of Criminal Justice, John Middleton Unit

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

MICHAEL DE’SEAN GREGORY, §

§

Plaintiff, §

§

v. §

§ Civil Action No. 1:22-CV-00156-BU

TEXAS DEPARTMENT OF §

CRIMINAL JUSTICE, JOHN §

MIDDLETON UNIT, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Michael De’Sean Gregory, proceeding pro se and in forma pauperis (IFP),

is suing Defendant Chimdi Akwitti and Defendant Texas Department of Criminal Justice

(TDCJ) Middleton Unit for violating his constitutional rights. See Dkt. No. 1. Now before

the Court is Defendants’ Motion to Dismiss Gregory’s claims. Dkt. No. 60. For the reasons

stated below, the undersigned RECOMMENDS the Court DENY the Motion to Dismiss.

I. JURISDICTION

The Court has subject-matter jurisdiction under 28 U.S.C. § 1331 because Gregory

brings his claims under 42 U.S.C. § 1983. Venue is proper in the Northern District of Texas,

Abilene Division, because Gregory’s claims arise from his incarceration at the Middleton

Unit in Jones County, Texas. 28 U.S.C. §1391 (b)(2). The undersigned has the authority to

enter these Findings, Conclusions, and Recommendations after United States District Court

Judge James Wesley Hendrix transferred Gregory’s case to the undersigned for pretrial

management. Dkt. No. 6; 28 U.S.C. § 636(b)(1)(B).

II. FACTUAL AND PROCEDURAL BACKGROUND

Gregory was an inmate at TDCJ Middleton Unit from September 6, 2022, until on

or about November 14, 2022. Dkt. No. 1 at 4. For a majority of these two months, Gregory

was housed in the Middleton Unit’s gym. Id. Gregory was assigned to the gym, as opposed

to a cell or a bunk, his prescription medications required he be in heat restricted housing.

Id. The gym was the only building at the Unit with air conditioning.

Gregory alleges that the gym’s conditions violated his constitutional rights in

different ways. See Dkt. Nos. 1, 25. First, Gregory claims he was not given a mattress and

was forced to sleep on the gym floor “with rats.” Dkt. No. 25 at 3. Gregory alleges that the

rodents were also present in the dining area. Id. According to his Complaint, Gregory

regularly found rats and other pests in and around his food as well as in the areas where he

ate. Id.

Gregory also alleges that his gym housing had plumbing and bathroom issues. The

gym bathrooms had two toilets and two urinals but there were times where only one or two

would be functioning for the 200 inmates assigned to the gym. Dkt. No. 1 at 4. Gregory

also claims that the gym did not have hot showers. Dkt. No. 40 at 1. As a result, he had to

be escorted from the gym to another building within the Unit. Id. at 1-2. This required him

to walk outdoors which, according to Gregory, caused him to get sick. Id. Gregory also

alleges that his gym housing prevented him from using the phone at the Unit but does not

elaborate on how this deprivation harmed him. Dkt. No. 25 at 3-4.

Gregory alleges that Warden Akwitti visited the gym, observed these issues

firsthand, but did not take any action to remedy these conditions. Id. at 1-2. Gregory states

that these conditions persisted throughout his time at the Unit. Id. at 4. The alleged

deficiencies made Gregory ill and caused him to lose weight. Id. He further complains that

the conditions caused him to suffer from “extreme PTSD,” memory loss, “difficulty coping

with stress,” and that his body is “a lot weaker and built differently.” Id. at 6.

Because Gregory is a pro se plaintiff who is proceeding IFP and suing government

officials, his claims were subject to judicial screening. See Dkt. Nos. 1, 5; 28 U.S.C. §§

1915, 1915A. Upon completion of that screening the Court determined that Gregory had

stated a plausible conditions-of-confinement claim against Akwitti. Dkt. No. 57. Further,

the Court found that Gregory stated a plausible claim against TDCJ under Title II of the

Americans with Disabilities Act (ADA). Id. The Court ordered these Defendants to file a

responsive pleading and the two complied by filing the present Motion to Dismiss.1 Id.;

Dkt. No. 60.

III. LEGAL STANDARDS

Dismissal for failure to state a claim under Rule 12(b)(6) “turns on the sufficiency

of the ‘factual allegations’ in the complaint.’” Smith v. Bank of Am., N.A., 615 F. App’x

830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12

(2014) (per curiam)). Thus, if a plaintiff “plead[s] facts sufficient to show” that the claims

asserted have “substantive plausibility” by stating “simply, concisely, and directly events”

1 The Court also ordered that the clerk stay this case until such responses were filed. See Dkt. No. 57 at 3.

Because Defendants have filed a responsive pleading, the clerk is now ordered to lift the present stay.

they contend entitle them to relief, the claims should not be dismissed merely because the

plaintiff fails to articulate the proper legal theory that otherwise makes those facts

actionable in court. Johnson, 574 U.S. at 11–12 (citing FED. R. CIV. P. 8(a)(2)–(3), (d)(1),

(e)).

Courts accept well-pleaded factual allegations as true, viewing them in the light

most favorable to the plaintiff. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th

Cir. 2016). “Well-pleaded” means the factual allegations, while not required to be detailed,

must amount to more than mere labels, conclusions, or a statement of the legal elements of

a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)); see also Chhim, 836 F.3d at 469.

Substantive plausibility does not require a plaintiff to plead enough facts to establish

the events at issue probably occurred as alleged, but the facts must allow the court “to infer

more than the mere possibility of misconduct.” Harold H. Huggins Realty, Inc. v. FNC,

Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 678–79). And

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. at 678. When plaintiffs “have not nudged their claims across

the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550

U.S. at 570.

Ultimately, “‘[d]etermining whether a complaint states a plausible claim for relief’

is ‘a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” Inclusive Communities Project, Inc. v. Lincoln Prop. Co.,

920 F.3d 890, 899 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 679).

IV. ANALYSIS

Defendants contend that Gregory’s conditions-of-confinement claim should be

dismissed because (1) he does not adequately allege the substantive elements of either his

Eighth Amendment claim or his ADA claim, (2) he seeks compensative damages despite

lacking a physical injury, and (3) Awkitti’s conduct is protected under qualified immunity.

The undersigned will assess each of these arguments below.

A. Whether Gregory has pled an Eighth Amendment claim.

Defendants first contend that Gregory’s pleadings, despite surviving judicial

screening, do not state an Eighth Amendment claim. To state an Eighth Amendment claim,

a plaintiff must show both an objective and subjective component. First, the plaintiff must

allege that a prison official deprived him of the minimal requirements for civilized measure

of life’s necessities, and that the deprivation exposed him to a substantial risk of injury.

Farmer v. Brennan, 511 U.S. 825, 834 (1994). Defendants argue that Gregory has pleaded

neither. However, their arguments ignore the procedural history of this case. As a pro se

plaintiff proceeding in forma pauperis, Gregory’s Complaint was subject to the judicial

screening procedures under 28 U.S.C. §1915(a), (e). These procedures filtered for the exact

deficiencies the Defendants allege here. Given that the Court’s review is still limited to the

well-pleaded factual allegations, as it was at judicial screening, the Defendant’s conclusory

challenges to Gregory’s pleadings are unpersuasive.2

2 Defendants first argue that the conditions alleged do not amount to a constitutional violation. In support

of this argument, they note that “the presence of pests does not amount to a constitutional violation.” Dkt.

No. 60 (citing Waller La. v. Ward, 2016 WL 7235832, at *3 (W.D. La. Oct. 19, 2016). However, this

argument ignores the other conditions Gregory alleges in his Complaint. See Gates v. Cook, 376 F.3d 323,

333 (5th Cir. 2004) (noting a plaintiff does not need to rely on a single condition to demonstrate an Eighth

For these reasons, the undersigned RECOMMENDS the Court DENY Defendants’

Motion to Dismiss Gregory’s Eighth Amendment claim.

B. Whether Gregory has stated an ADA Claim.

Defendants next argue that Gregory’s ADA claim against TDCJ should also be

dismissed because Gregory fails to both (1) allege a disability and (2) allege discrimination

based on that disability.

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. To bring a claim under Title II, a plaintiff must show “(1)

that he is a qualified individual within the meaning of the ADA; (2) that he is being

excluded from participation in, or being denied benefits of, services, programs, or activities

for which the public entity is responsible, or is otherwise being discriminated against by

the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by

Amendment violation but may show that multiple conditions in the aggregate deprived them of their basic

needs). Gregory does not just complain of rats but that, for more than a month, he was forced to sleep on

the floor, had limited access to a toilet and was made to take cold showers. Further, Gregory alleges that

the pests were more than just present but infested the Unit to the degree that he found rats and rat feces in

his food. At this stage of the litigation, the Court cannot be persuaded by the Defendants’ attempts to

downgrade the conditions Gregory alleges in his complaint.

Second, Defendants argue that Gregory has not pleaded that Akwitti acted with deliberate indifference. In

support of this contention, Defendants note that Gregory does not allege that Akwitti was aware of each

condition specifically. However, Defendants do not address Gregory’s statement that “Warden Akwitti is at

the unit quite often and he always says that he knows about the violations and that it is against the law.”

Dkt. No. 25 at 2. Gregory’s reference to “violations” is sufficient to incorporate the ones alleged,

particularly given his pro se status. See Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006) (“[Courts]

must construe the pleading of pro se litigants liberally[.]”). Further, Gregory’s allegations that Akwitti knew

of the alleged illegality of the conditions and his failure to remedy them, taken as true, satisfies deliberate

indifference at this stage of litigation.

reason of his disability.” Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671—72 (5th

Cir. 2004).3

In its judicial screening order, the Court addressed both of the issues the Defendants

raise here. It first found that Gregory’s depression and schizoaffective disorder qualified as

a disability under the ADA. Dkt. No. 55 at 14-15. Though recognizing that Gregory’s

pleadings did not detail these conditions, the undersigned concluded that the applicable

regulations supported a disability finding. See Dkt. No. 55 at 15 (citing 28 C.F.R. §

35.108(d)(2)(k)). The regulations advise courts that “it should easily be concluded that”

impairments such as major depressive disorder and schizophrenia “at a minimum,

substantially limit the major activities indicated.” 28 C.F.R. § 35.108(d)(2)(k). Defendants

do not address these regulations in their Motion, nor do they dispute the undersigned’s

application. Defendants’ second argument is also uncompelling. As noted in its screening

order, the Court found that Gregory alleged he was placed in the gym because of his

disability. See Dkt. No. 55 at 15 (“Gregory has alleged that he was placed inside the gym,

and thus exposed to the squalid conditions alleged, due to the fact that he had a heat

restriction in place because of medications he takes for his mental health conditions.”).

Again, Defendants do not mention, let alone challenge, this finding in their Motion to

Dismiss.

For these reasons, the undersigned RECOMMENDS the Court DENY Defendants’

3 Further, if a plaintiff is seeking compensatory damages, they must also show that the defendant’s

discrimination was intentional. Cadena v. El Paso Cnty., 946 F.3d 717, 724 (5th Cir. 2020) (citation

omitted). As the undersigned noted, Gregory did not plead any allegations to indicate that this

discrimination was intentional and thus, his ADA claim is for nominal damages only. See Dkt. No. 55 at

15-16.

Motion to Dismiss Gregory’s ADA claim.

C. Whether Gregory’s alleged injuries entitle him to compensatory relief.

Defendants also argue that Gregory’s claim for compensatory relief should be

dismissed because he fails to state a physical injury. Under the Prison Litigation Reform

Act (PRLA), “[n]o Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility without a prior showing of physical injury.” 43 U.S.C.

§ 1997e.

In their Motion, Defendants argue that Gregory “fails to assert any physical injury

beyond generally getting sick and weight loss.” Dkt. No. 60 at 7. However, the Court found

Gregory’s allegations of substantial weight loss was sufficient to satisfy the PLRA physical

injury component at this stage of the litigation. Dkt. No. 55 at 11 (citing Dillard v. Davis,

No. 7:19-CV-00081-M-BP, 2022 WL 3045747, at *28 (N.D. Tex. June 17, 2022), R&R

adopted, 2022 WL 3042901). Defendants do not provide any legal support to challenge

this finding, but rather ignore it all together. Thus, the undersigned RECOMMENDS the

Court DENY the Defendants’ Motion to Dismiss Gregory’s compensatory claims.

D. Whether Akwitti’s conduct is protected under qualified immunity.

Akwitti also argues this Court should dismiss Gregory’s claims against him on the

grounds of qualified immunity.

i. Legal Standards

A governmental employee who is sued under § 1983 may assert qualified immunity

as an affirmative defense to liability. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).

Qualified immunity protects government officials performing discretionary functions from

suit and liability for civil damages to the extent their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects “all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986).

In deciding whether a government employee is entitled to qualified immunity, courts

conduct a two-pronged inquiry. First, courts consider whether the facts alleged, taken in

the light most favorable to the plaintiff, show a violation of a constitutional right. Saucier

v. Katz, 533 U.S. 194, 200 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223

(2009). Second, courts determine whether the violated constitutional right was clearly

established within the specific context of the case. Id. at 201. “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at

202.

Akwitti’s entire argument for qualified immunity falls under prong one: he is

entitled to qualified immunity because Gregory fails to state an Eighth Amendment claim.

But the Fifth Circuit Court of Appeals recently reminded courts that the standards for

stating a claim at the preliminary screening stage is the same standard for stating a claim

at the motion to dismiss stage, even if the motion to dismiss asserts qualified immunity.

Santander v. Salazar, 133 F.4th 471, 478 (5th Cir. 2025) (the “assertion of qualified

immunity . . . does not subject the complaint to a heightened pleading standard.”) (citing

Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020) (internal quotation marks omitted).

In other words, when a defendant asserts qualified immunity at the motion to dismiss stage,

“the district court must ‘do not more than determine whether the plaintiff has filed[d] a

short and plain statement of his complaint, a statement that rests on more than conclusions

alone.’” Santander, 133 F.4th at 478 (quoting Anderson v. Valdez, 845 F.3d 580, 590 (5th

Cir. 2016) (internal quotation marks omitted) (quoting in turn Schultea v. Wood, 47 F.3d

1427, 1433 (5th Cir. 1995) (en banc).

As discussed above, the undersigned finds—now for the second time—that Gregory

has alleged sufficient facts which, if true, state a constitutional violation, both for screening

and motion to dismiss purposes. Thus, Gregory’s claim satisfies the first prong.

ii. Legal Standards Governing the Second Prong of Qualified Immunity

The Defendants do not brief the second issue. Despite the absence of argument, the

Court will address this prong to resolve the issue of qualified immunity “at the earliest

possible stage of [the] litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

Under the second prong, the Court must determine whether Gregory’s right was so clearly

established that a reasonable officer would have clearly known Akwitti’s conduct was

unlawful. A constitutional right is clearly established “only if ‘the contours of the right

were sufficiently clear that a reasonable official would understand that what he was doing

violated that right.’” Perniciaro v. Lea, 901 F.3d 241, 255 (5th Cir. 2018) (brackets omitted)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Ordinarily, a right becomes clearly established when existing precedent has “placed

the statutory or constitutional question beyond debate.” Hanks v. Rogers, 853 F.3d 738,

746–47 (5th Cir. 2017). A court must ensure that it does not “define clearly established law

at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). So, although

the law does not require a case similar in every respect, clearly established law “must be

particularized to the facts of the case.” Arzabala v. Weems, No. 5:21-CV-00268-H,

2024 WL 1018530, at *5 (N.D. Tex. Mar. 8, 2024) (Hendrix, J.) (citing White v. Pauly,

580 U.S. 73, 79–80 (2017)). There are, though, rare instances where “the unlawfulness of

the officer’s conduct is sufficiently clear even though existing precedent does not address

similar circumstances.” Dist. of Columbia v. Wesby, 583 U.S. 48, 64 (2018); see also

Darden, 880 F.3d at 727.

But even if an official’s conduct violated a clearly established constitutional right,

the official is nonetheless entitled to qualified immunity if his conduct was objectively

reasonable under the circumstances. See Jones v. Collins, 132 F.3d 1048, 1052 (5th Cir.

1998).

iii. Application

Qualified immunity was aimed to protect the decisions of officers who act in fast-

moving, high-pressured, life-or-death situations. Villarreal v. City of Laredo, Texas, 134

F.4th 273, 282 (5th Cir. 2025) (Oldham, J., concurring). The “archetypal qualified

immunity case” is one of excessive force, where the alleged violation is a product of an

officer’s split-second decision making. Id. (quoting Andrew S. Oldham, Official Immunity

at the Founding, 46 HARV. J.L. & PUB. POL’Y 105, 107 (2023)) (internal quotations

omitted).

That is not the case here. Gregory has plausibly alleged that he was forced to sleep

on the floor with rats, share two toilets with approximately 200 other inmates, and required

to walk outside to another building for showers, which were cold. Gregory alleges he

endured these conditions not for days or even weeks, but for several months. Dkt. No. 25

at 4. This time plausibly afforded Akwitti what a typical qualified immunity defendant does

not have: the opportunity to investigate the violations, consult with legal counsel, and make

a calculated decision as to how to proceed. See Villareal, 134 F.4th at 283. In fact, Gregory

alleges Akwitti did just this. Dkt. No. 25 at 4. According to Gregory, Akwitti visited the

gym and acknowledged that he knew the conditions were unlawful. Id. Yet Akwitti allowed

them to persist unabated for months.4 Id.

Any argument that Akwitti was forced to act in the heat of the moment when

deciding where to house Gregory is unpersuasive. As discussed above, Gregory’s

medications required he be placed in heat restricted housing. But neither this medical

limitation nor the high temperatures of a Texas summer could have been a surprise to

Akwitti. Rather, based on Gregory’s allegations, it plausibly appears that Akwitti had ample

time to anticipate and plan for proper housing, or, at minimum, evaluate the legal

consequences of housing 200 inmates on the floor of a single gym with limited toilet

facilities.

This distinction is not insignificant, and courts have questioned as to how, if at all,

qualified immunity applies in these situations. See generally Villareal, 134 F.4th at 282-84.

In the context of conditions of confinement claims, courts particularly emphasize the

4 At the motion to dismiss stage, the Court must accept all well-pleaded allegations as true. Thus, the Court

must accept Gregory’s claim that Akwitti took no action to address the conditions. Of course, the Court

may consider evidence to the contrary later in the litigation.

duration of the conditions. In part, this is to determine whether the inmate endured the

condition for such a period that it amounted to a deprivation of a basic human need. The

United States Supreme Court acknowledged this principle, noting that “[a] filthy

overcrowded cell...might be tolerable for a few days and intolerably cruel for weeks or

months.” Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522

(1978). Courts have found that a longer amount of time also provides defendants with the

opportunity to realize the constitutional implications of their actions, particularly in the

context of qualified immunity. See generally Villareal, 134 F.4th at 283 (citing Taylor v.

Riojas, 592 U.S. 7, 141 S.Ct. 52, 208 L.Ed. 164 (2020) (per curiam).

With this background, the undersigned will analyze whether Gregory has plausibly

alleged a clear constitutional right. Gregory alleges that his Eighth Amendment right

clearly shielded him from months of sleeping on a gym floor among rats, sharing two toilets

with approximately 200 other inmates, and having access to only cold showers. Courts

have found conditions similar in type rise to a constitutional violation.

For example, in Taylor the United States Supreme Court the United States Supreme

Court denied qualified immunity to state actors who allowed unconstitutional conditions

of confinement to persist. 592 U.S. at 7. The inmate in Taylor was placed in a cell for nearly

a week that was “covered, nearly floor to ceiling in massive amounts of feces” then moved

to a cell which “was equipped only with a clogged drain in the floor to dispose of bodily

waste.” Taylor, 592 U.S. at 7. Due to the lack of a toilet, the inmate was forced to hold his

bladder for over twenty-four hours. Id. He eventually involuntarily relieved himself,

“causing the drain to overflow and raw sewage to spill across the floor.” Id. Further, the

inmate then was forced to sleep on the floor, naked in the sewage because he was not

provided a bunk or clothing. Id. Due to the egregiousness of these conditions, the Court

found that the officers did not need prior legal precedent to give them fair warning that

such acts were unconstitutional. Id. The Court highlighted there was no evidence that the

conditions were created by necessity or exigency. Id. at 9.

In Palmer v. Johnson, the Fifth Circuit similarly denied defendants qualified

immunity regarding allegations of unconstitutional conditions. 193 F.3d 346, 354 (5th Cir.

1999). In Palmer, the court found that no reasonable prison official would find it

objectively reasonable to contain forty-nine inmates in an outdoor area approximately

twenty by thirty feet, overnight without any protection from the wind and cold nor without

any “sanitary means of disposing of their bodily waste[.]” Id.; see also Bienvenu v.

Beauregard Parish Police Jury, 705 F.2d 1457 (5th Cir. 1983) (finding an inmate’s

allegations that he was intentionally subjected to “a cold, rainy, roach-infested facility and

[provided] inoperative, scum-encrusted washings and toilet facilities” stated a claim under

the Eighth Amendment).

Though similar in nature, Gregory’s alleged conditions differ from these cases in

degree. Nowhere in Gregory’s pleadings does he allege overcrowding on a level with

Palmer, or that he was forced to resort to unsanitary means as in Taylor. Palmer, 193 F.3d

at 354 (noting a complete deprivation of toilets, as opposed to restricted access, amounted

to a constitutional violation). Nor can the undersigned find any other legal precedent which

specifically states that providing only two toilets for two hundred inmates would create an

unconstitutional condition. Gregory also claims he was subjected to rats, both on the gym

floor and in the chow halls. But as Defendants note, “the mere presence of pests does not

amount to a constitutional violation.” Waller La. v. Ward, 2016 WL 7235832, at *3 (W.D.

La. Oct. 19, 2016).

However, courts may consider otherwise constitutional conditions of confinement

in combination when together they “have a mutually enforcing effect that produces the

deprivation of a single, identifiable human need . . . for example, a low cell temperature at

night combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304, 111

S. Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991). Thus, the undersigned will consider Gregory’s

lack of bedding in combination with the rodent infestation as together they deprived him

of his ability to sleep. However, again, the undersigned cannot find case law which

establishes a clear constitutional right to be free from such conditions.

Divorcing the two conditions also does not reveal case law indicating a clear

constitutional right. The Fifth Circuit has not firmly stated that an inmate has a

constitutional right to a mattress.5 See Davis v. Gusman, No. CIVA 09-7195, 2010 WL

1727825, at *22-23 (E.D. La. Apr. 13, 2010), report and recommendation adopted, No.

CIVA 09-7195, 2010 WL 1727821 (E.D. La. Apr. 28, 2010) (finding no constitutional

violation where the plaintiff slept on the floor without a mattress for five days). Thus,

temporary bedding deprivations, without more, do not constitute a constitutional violation.

Phillips v. East, 81 Fed. Appx. 483, 2003 WL 22770162, at * 2 (5th Cir. 2003) (finding that

5 Some legal precedent suggests that proper bedding does constitute a basic human need. See Oladipupo v.

Austin, 104 F. Supp. 2d 626, 639 (W.D. La. 2000). However, courts have noted that those cases do not apply

the current deliberate indifference standard and, on this basis, refused to extend the holding to claims

brought by convicted inmates. See Davis, 2010 WL 1727825, at *22-23; Magee v. Crowe, No. CIV.A 09-

3142, 2010 WL 630011, at *10 (E.D. La. Feb. 19, 2010).

denial of a mattress for two and half days did not amount to an Eighth Amendment

violation); Magee v. Crowe, No. CIV.A 09-3142, 2010 WL 630011, at *10 (E.D. La. Feb.

19, 2010) (ten days); McClay v. Gusman, Civ. Action No. 11-2863, 2012 WL 3438367, at

*8 (E.D. La. July 13, 2012)(seventeen days); Allen v. St. Tammany Par., No. CV 17-4091,

2018 WL 558503 (E.D. La. Jan. 2, 2018), report and recommendation adopted, No. CV

17-4091, 2018 WL 537495 (E.D. La. Jan. 24, 2018) (fifteen days).

Though there appears to be no case involving identical facts, courts dealing with

similar conditions have highlighted certain factors relevant to the constitutional

determination. For example, in Alexander v. Tippah County, Mississippi, the Fifth Circuit

noted that the presence of an injury and the length of confinement are crucial factors when

determining whether the confinement meets constitutional standards. 351 F.3d 626, 631

(5th Cir. 2003). The court in Desroche v. Strain applied those factors to conditions like

those here. Desroche spent 10 days in a cell with twenty to forty other inmates who were

forced to share one toilet and sleep on the concrete floor. 507 F.Supp.2d 571, 575 (E.D. La.

2007). This was found to not be a constitutional violation because the conditions were

temporary in nature and did not cause substantial harm.

Alexander v. S. Health Partners, Inc., a case from this district, similarly held that

the pre-trial detainee was not deprived of life’s necessities when he was housed without

bedding or a toilet for five days. No. 3:22-CV-0395-X, 2024 WL 3240652, at *4 (N.D. Tex.

June 28, 2024), aff'd sub nom. Alexander v. Philip R. Taft Psy D & Assocs., P.L.L.C., No.

24-10663, 2025 WL 1904112 (5th Cir. July 10, 2025). In support of its holding, the court

cited to out-of-circuit cases involving conditions of temporary duration.6

As discussed above, the length of duration is often critical in assessing qualified

immunity in conditions of confinement cases for two reasons: (1) it increases the likelihood

that the inmate was deprived of a necessity and (2) it provides the officer the opportunity

to appreciate and respond to the legal implications of their actions. In other words, the

unlawfulness of the conditions should have become increasingly obvious to the officer as

time passed. Still, there is no case law affirmatively establishing a length-of-duration litmus

test for questionable conditions of confinement. But caselaw is clear that there comes a

point when a combination of unpleasant conditions, when further combined with their

duration, give rise to a situation so intolerable that, even in the absence of case law, any

reasonable warden would have known the conditions were unlawful. Hence, it would have

been objectively unreasonable for the warden to fail to remedy them.

Ultimately, courts determine whether a constitutional right was clearly established

within the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled

in part by Pearson v. Callahan, 555 U.S. 223 (2009). “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

6 Alexander cited to Chapman v. Proctor, where the plaintiff claimed he endured allegedly unconstitutional

conditions for sixteen days. No. 2:20-CV-0091, 2022 WL 822466, at *1 (S.D. Ga. Jan. 10, 2022), report

and recommendation adopted, 2022 WL 501390 (S.D. Ga. Feb. 18, 2022); see also Alfred v. Bryant, 378 F.

App’x 977, 980 (11th Cir. 2010) (finding no constitutional violation where plaintiff went eighteen days

without a functioning toilet); Anderson v. Chapman, No. 3:12-CV-0088, 2013 WL 4495827 (M.D. Ga.

2013) (granting summary judgment where inmate spent five days sleeping on the floor alongside dried

urine, feces, and blood because there was no evidence it posed a substantial risk to inmate’s health) aff’d,

604 F.App’x 810, 814 (11th Cir. 2015).

reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

Gregory alleges that he was forced to sleep on the gym floor without a mattress, where rats

were common, and forced to share a one or two toilets with 200 other inmates for months

without knowing when or if the conditions would cease.7

Accepting Gregory’s allegations as true at this juncture, the undersigned finds it

plausible that these conditions, lasting for almost two months, plausibly combined to have

the “mutually enforcing effect” of violating Gregory’s Eighth Amendment rights. Wilson,

501 U.S. at 304. Further, the undersigned finds it plausible that any reasonable officer in

Akwitti’s position would have clearly known these conditions, permitted over this duration,

were unlawful. At the time Gregory’s claims arose, it may have been unclear that Gregory

had a constitutional right to not be subjected to the alleged conditions, singularly or in

combination. The duration at which such conditions trip the constitutional wire may have

also been unknown. But the undersigned finds it plausible that the line for Akwitti to be

compelled to act at the risk of violating Greogory’s rights was well short of two months.

V. CONCLUSION

For the reasons above, the undersigned RECOMMENDS that Gregory’s claims

7 The undersigned recognizes that these conditions do not rise to the level of deplorability in previous cases

where the court denied qualified immunity. Though the conditions here may not have been as egregious as

those in Taylor, Gregory was forced to endure them for a significantly longer period of time. As discussed

above, it has been suggested that the need for granularity in connection with the “clearly established” prong

of qualified immunity may be more leniently applied in cases where “the correctional officers had plenty

of time to assess their horrific conduct and recognize that it obviously violated the law.” Villarreal, 134

F.4th at 282 (Oldham, J., concurring). Thus, “it [is] of no moment that precedent had only clearly established

a general prohibition on ‘inhumane’ conditions of confinement.” Id. (citing Farmer, 511 U.S. 832).

survive the assertion of qualified immunity, at least at the pleading stage, and that the Court

DENY Defendant’s Motion to Dismiss.

VI. RIGHT TO OBJECT

A copy of these Findings, Conclusions, and Recommendations shall be served on

all parties in the manner provided by law. Any party who objects to any part of these Find-

ings, Conclusions, and Recommendations must file specific written objections within four-

teen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

To be specific, an objection must identify the specific finding or recommendation to which

the objection is made, state the basis for the objection, and specify the place in the

magistrate judge’s Findings, Conclusions, and Recommendations where the disputed de-

termination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objec-

tions will bar the aggrieved party from appealing the factual findings and legal conclusions

of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417

(Sth Cir. 1996).

IX. TRANSFER OF CASE

The undersigned ORDERS that this case be TRANSFERRED back to the docket of

the United States District Judge and designated as Civil Action No. 1:22-CV-00156-H.

ORDERED this 12th day of August 2025.

SRI

JOHN R. PARKER

UNITED STATES MAGISTRATE JUDGE

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