The opinion
March 13, 2026
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JULIAN MARS MCKITHAN, § CIVIL ACTION NUMBER
(TDCJ # 01496495) § 4:22-cv-01422
Plaintiff, §
§
§
versus § JUDGE CHARLES ESKRIDGE
§
§
DR. ROBIN ROTHROCK, §
et al, §
Defendants. §
OPINION AND ORDER ON DISMISSAL
The motion to dismiss by Defendants Robin Rothrock,
Kate Christopher, and Jamie Williams is granted. Dkt 30.
The civil-rights action by Plaintiff Julian Mars
McKithan is dismissed.
1. Background
Plaintiff is an inmate of the Texas Department of
Criminal Justice–Correctional Institutions Division. He
proceeds here pro se and in forma pauperis.
In May 2022, he filed a complaint under 42 USC §1983,
alleging that Doctor Robin Rothrock, Nurse Practitioner
Kate Christopher, Practice Manager Jamie Williams, and
Medical Records Technician Gail Wilson violated his
Eighth Amendment rights by failing to provide him with
adequate medical care. Dkt 1.
In September 2023, Plaintiff filed an amended
complaint, which added claims against them for
retaliation, negligence, equal protection violations, and a
failure to investigate grievances. Dkt 20. He also added
new claims against several new defendants, but these
claims and defendants have been previously dismissed.
Dkt 25.
The amended complaint alleges that before Plaintiff
arrived at TDCJ in 2008, he suffered from seizures due to
a head injury from a 1991 car accident. Dkt 20 at 3. He also
had lingering effects from ankle reconstruction surgery due
to the same accident. Ibid. Based on these conditions,
TDCJ officials issued him medical and administrative
restrictions and passes for a bottom bunk, no climbing, no
working with machinery with moving parts, no heat, no
humidity, and a 4-hour daily work limit. Ibid.
In 2015, Plaintiff was diagnosed with arthritis in his
back and shoulders, degenerative disk disease, spondylitis,
and chronic shoulder pain. Ibid. Based on these conditions,
Plaintiff was issued medical and administrative passes for
no walking on wet or uneven surfaces, no reaching over his
shoulders, and no lifting over 30 pounds. Ibid. Plaintiff
alleges that these restrictions and passes were
“permanent.” Ibid.
In February 2018, Plaintiff was transferred to the
Estelle Unit for physical therapy. Id at 4. While he was
there, non-defendant Doctor F/N/U Hall revoked all of his
medical and administrative restrictions and passes in
retaliation for Plaintiff having filed grievances against
Hall. Ibid. Plaintiff tried to get the passes reinstated while
he was at the Estelle Unit, but he was transferred back to
the Wynne Unit before the issue was corrected. Ibid.
In March 2018, Plaintiff tried to correct the medical
restrictions and passes issue with Christopher. Ibid.
Christopher reinstated some of the medical passes, but
only on a temporary basis. Ibid. He told Plaintiff that she
would make the restrictions permanent “later.” Ibid.
Between 2018 and 2019, Plaintiff developed breathing
issues. Ibid. He contends that he saw Christopher and
another nurse practitioner multiple times but didn’t
receive adequate medical care from either of them. Ibid.
In mid-2019, Plaintiff was referred to a lung specialist
and diagnosed with asthma. Ibid. Despite this new
diagnosis, Christopher refused to issue additional medical
restrictions and passes to reflect his new limitations. Ibid.
Plaintiff filed a grievance about Christopher’s refusal to
add restrictions and passes. Ibid.
At a December 2019 clinic appointment, Christopher
asked Plaintiff about one of his administrative passes. Ibid.
When Plaintiff responded that it was because of his
aggravated sexual assault conviction, Christopher’s
demeanor changed, she deleted the pass from his record,
and she again refused to issue any medical restrictions or
passes to account for his asthma. Id at 4–5. Plaintiff filed a
grievance about this action. Ibid.
In March 2020, Plaintiff had his first visit with
Rothrock. Id at 5. Before Rothrock could review his medical
records, Christopher entered the room, sent Plaintiff
outside, and talked privately with Rothrock. Ibid. Plaintiff
alleges that he overheard Christopher tell Rothrock that
“he” refuses examinations and treatments, that he is a sex
offender, and that he has written grievances against
medical staff. Ibid. Christopher then left, and Rothrock
called Plaintiff back into the room. Ibid. Without
examining Plaintiff, Rothrock revoked his temporary
medical restrictions and passes and told him she wouldn’t
reissue them until he had new medical evaluations. Ibid.
Shortly thereafter, Plaintiff learned that his medical
file contained two refusals of treatment, both of which he
alleges are forged. Id at 5–6. Based on his discovery of these
documents, as well as the ongoing problems with his
medical restrictions and passes, Plaintiff filed grievances
concerning the allegedly inadequate medical care he was
receiving from Rothrock and Christopher. Ibid. Williams,
in her capacity as Practice Manager, responded to these
grievances with information Plaintiff alleges was either
false or based on falsified medical records. Ibid.
In March 2020, Plaintiff filed grievances against
Rothrock and Christopher, alleging that they conspired
with each other to retaliate against him for having filed the
grievances. Id at 6.
On May 1, 2020, Wynne Unit officials ordered Plaintiff
to pack his property and move from his cell on the bottom
row to a new cell on an upper row. Ibid. As part of the move,
Plaintiff was required to carry his own property up the
stairs. Ibid. After several trips up and down the stairs, he
suffered intense back pain, passed out, and had a seizure.
Ibid. Another inmate saved him from “rolling off” the third-
level row by grabbing Plaintiff’s shirt. Ibid. Plaintiff was
transported to the medical department, where he felt a
“disk pop back in place,” but he continued to suffer back
pain for days after the event. Ibid. He doesn’t allege that
he was denied care or treatment for this injury.
In June 2020, Plaintiff told Major Boyd about the
allegedly improper revocation of his medical restrictions
and passes. Ibid. Boyd instructed Rothrock to restore
Plaintiff’s bottom bunk restriction if there was any medical
basis for it, and Rothrock did so. Ibid.
Between May 2020 and January 2021, Plaintiff was
reassigned to a new cell at least sixteen times, moving his
own property each time. Id at 6–7. Each of these moves
caused further injury to his back and shoulders. Ibid.
Between May 2020 and June 2021, he also submitted
multiple requests for clinic visits due to severe pain. Id
at 7. He doesn’t allege that he wasn’t provided with medical
care in response to these requests.
At a July 2020 appointment with Rothrock, she told
Plaintiff that she was tired of seeing and hearing his name
in meetings, discussions and reports concerning his
conspiracy claims. Ibid. Rothrock refused to reissue his
medical restrictions and passes based on radiology reports
from 2015, stating that she considered them “frivolous”
because they were prepared by technicians rather than
physicians. Ibid. Plaintiff alleges that the reports were
actually prepared by physicians but that Rothrock didn’t
see that. Ibid. Plaintiff filed a grievance after this
appointment based on Rothrock’s lack of professionalism
and unethical actions. Ibid.
In October 2020, an orthopedic spine specialist at John
Sealy Hospital in Galveston determined that Plaintiff
needed back surgery for his degenerated and herniated
disks. Id at 8. In June 2021, an orthopedic shoulder
specialist determined that Plaintiff’s arthritis had
progressed to the point that both shoulder joints needed
replacement. Ibid.
After those evaluations, prison and medical officials
reissued Plaintiff’s medical restrictions and administrative
passes. Ibid. And as of November 2022, he has had
corrective back surgery. Ibid.
Plaintiff alleges that Williams violated his civil rights
by failing to conduct an adequate investigation into his
grievances and by failing to ensure that he received
adequate medical care. Id at 9. He alleges that Rothrock
and Christopher were deliberately indifferent to his need
for medical care and his pain and suffering. Ibid. He alleges
that all three Defendants conspired to deny him medical
care and treatment in retaliation for him filing grievances.
Ibid. He contends that Rothrock’s refusal to issue medical
restrictions and passes deprived him of equal protection.
Ibid. And he alleges that Rothrock and Christopher were
negligent in providing him with medical care and
treatment. Id at 10.
As relief, Plaintiff seeks a declaratory judgment finding
that Defendants violated his rights. Id at 11–12. He seeks
an injunction requiring Defendants to ensure that future
surgeries are performed in a timely fashion, that he be seen
by a medical specialist “whenever needed,” that he be
referred to a pain management specialist, that he receive
medical supplies in a timely fashion, and that prohibits
Defendants from retaliating against him. Id at 12. He also
seeks an award of money damages. Id at 12–13.
Defendants Rothrock, Christopher, and Williams
responded to the amended complaint with a lengthy motion
to dismiss under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Dkt 30. In their motion, Defendants contend
that the amended complaint doesn’t allege facts showing
that Plaintiff’s constitutional rights were violated. Id at
27–39. They contend that they are protected from liability
by qualified immunity. Id at 26–41. They also contend that
Plaintiff’s negligence claims are barred by the Texas Tort
Claims Act. Id at 24–26.
TDCJ has been unable to identify a medical records
technician named Gail Wilson who worked at the Wynne
Unit when Plaintiff was there, so she hasn’t been served.
Dkt 29.
2. Legal standard
Plaintiff’s complaint is construed liberally because he
proceeds pro se. Coleman v United States, 912 F3d 824, 828
(5th Cir 2019), citing Erickson v Pardus, 551 US 89, 94
(2007, per curiam).
To state a valid claim under § 1983, a plaintiff must
(i) allege a violation of rights secured by the Constitution
or laws of the United States, and (ii) demonstrate that the
alleged violation was committed by a person acting under
color of state law. West v Atkins, 487 US 42, 48 (1988);
Gomez v Galman, 18 F4th 769, 775 (5th Cir 2021,
per curiam). The first element recognizes that “state tort
claims are not actionable under federal law; a plaintiff
under [§]1983 must show deprivation of a federal right.”
Nesmith v Taylor, 715 F2d 194, 195 (5th Cir 1983,
per curiam). The second element means that generally only
state actors—not private parties—can be liable for
violations of civil rights. Frazier v Board of Trustees of
Northwest Mississippi Regional Medical Center, 765 F2d
1278, 1283 (5th Cir 1985).
Dismissal is appropriate “‘when the court lacks the
statutory or constitutional power to adjudicate’ the claim.”
In re Federal Emergency Management Agency Trailer
Formaldehyde Products Liability Litigation, 668 F3d 281,
286 (5th Cir 2012), quoting Home Builders Ass’n, Inc v City
of Madison, 143 F3d 1006, 1010 (5th Cir 1998). Rule
12(b)(1) permits a defendant to seek such dismissal. Once
put at issue, the party asserting jurisdiction has the
burden to establish by a preponderance of the evidence that
it exists. New Orleans & Gulf Coast Railway Co v Barrois,
533 F3d 321, 327 (5th Cir 2008). Indeed, a presumption
against subject-matter jurisdiction “must be rebutted by
the party bringing an action to federal court.” Coury v Prot,
85 F3d 244, 248 (5th Cir 1996).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires a plaintiff’s complaint to provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Rule 12(b)(6) allows the defendant to
seek dismissal if the plaintiff fails “to state a claim upon
which relief can be granted.”
Reading these Rules together, the Supreme Court has
held that Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v
Iqbal, 556 US 662, 678 (2009), quoting Bell Atlantic Corp v
Twombly, 550 US 544, 555 (2007). To survive a Rule
12(b)(6) motion to dismiss, the complaint “must provide the
plaintiff’s grounds for entitlement to relief—including
factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” Cuvillier v
Taylor, 503 F3d 397, 401 (5th Cir 2007), quoting Twombly,
550 US at 544.
A complaint must therefore contain “enough facts to
state a claim to relief that is plausible on its face.”
Twombly, 550 US at 570. A claim has facial plausibility
“when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 US at 678,
citing Twombly, 550 US at 556. This standard on
plausibility is “not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 US at 678, quoting
Twombly, 550 US at 556.
Review on a motion to dismiss under Rule 12(b)(6) is
constrained, being generally limited to the contents of the
complaint and its attachments. Brand Coupon Network
LLC v Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir
2014). The reviewing court “must accept all well-pleaded
facts as true and view them in the light most favorable to
the plaintiff.” Walker v Beaumont Independent School
District, 938 F3d 724, 735 (5th Cir 2019) (cleaned up). But
courts “do not accept as true ‘conclusory allegations,
unwarranted factual inferences, or legal conclusions.’”
Rx Solutions, Incorporated v Caremark, LLC, 164 F4th
436, 441 (5th Cir 2026), quoting Hodge v Engleman,
90 F4th 840, 843 (5th Cir 2024) (cleaned up). And while
pro se litigants are held to less stringent pleading
standards than attorneys, they aren’t excused from the
requirement to allege sufficient facts to state a plausible
claim. See Taylor v Books A Million Inc, 296 F3d 376, 378
(5th Cir 2002); Toole v Peak, 361 F Appx 621, 621 (5th Cir
2010, per curiam) (self-represented litigant “still must
actually argue something that is susceptible of liberal
construction”).
3. Discussion
a. Injunctive relief
Plaintiff seeks injunctive relief in the form of an order
dictating how his future medical care will be handled and
prohibiting Defendants from retaliating against him.
Article III of the Constitution limits federal courts to
considering “Cases” and “Controversies.” Summers v Earth
Island Institute, 555 US 488, 492 (2009). This limitation is
reflected in the doctrine of standing. Id at 493. This
“requires federal courts to satisfy themselves that ‘the
plaintiff has alleged such a personal stake in the outcome
of the controversy as to warrant his invocation of federal-
court jurisdiction.’” Ibid, quoting Warth v Seldin, 422 US
490, 498 (1975). A federal plaintiff must demonstrate
standing for each type of relief sought. Ibid.
To have standing to seek injunctive relief, the plaintiff
must show (i) an injury in fact (ii) that is fairly traceable to
the defendants’ actions and (iii) that will likely be
redressed by the requested relief. Stringer v Whitley,
942 F3d 715, 720 (5th Cir 2019), citing Lujan v Defenders
of Wildlife, 504 US 555, 560–61 (1992). The party seeking
to invoke federal jurisdiction must establish all three
elements. Ibid.
At issue here are the redressability and injury-in-fact
elements. “The redressability requirement limits the relief
that a plaintiff may seek to that which is likely to remedy
the plaintiff’s alleged injuries.” Stringer, 943 F3d at 720,
citing Steel Company v Citizens for a Better Environment,
523 US 83, 103 (1998). A plaintiff seeking injunctive relief
can show redressability by alleging facts showing a
continuing or threatened future injury. Ibid. Past injuries
aren’t enough. Book People, Incorporated v Wong, 91 F4th
318, 328 (5th Cir 2024). Further, the “continuing or
threatened future injury, like all injuries supporting
Article III standing, must be an injury in fact.” Stringer,
942 F3d at 720. An injury-in-fact must be “(1) potentially
suffered by the plaintiff, not someone else; (2) ‘concrete and
particularized,’ not abstract; and (3) ‘actual or imminent,’
not ‘conjectural’ or ‘hypothetical.’” Id at 720–21 (citations
omitted).
Plaintiff’s amended complaint doesn’t satisfy these
requirements. He doesn’t allege facts establishing
redressability because he seeks relief based solely on past
injuries rather than a threat of continuing or future
injuries. And he doesn’t allege facts establishing an injury-
in-fact because any future injury is hypothetical.
Indeed, Plaintiff alleges that as of November 2022, he
has undergone the necessary back surgery and his medical
restrictions and passes have been fully restored. In
addition, since filing his complaint, Plaintiff has been
transferred to a different TDCJ unit where he is no longer
in contact with or being treated by Defendants.
Under these circumstances, the possibility of any
future injury caused by Defendants can only be
characterized as conjectural. Plaintiff thus lacks Article III
standing to seek injunctive relief against Defendants.
The motion by Defendants to dismiss the claims for
injunctive relief will be granted. Dkt 30. The claims for
injunctive relief by Plaintiff will be dismissed without
prejudice.
b. Failure to investigate grievances
Plaintiff contends that Williams is liable to him for
damages because she failed to adequately investigate the
grievances he filed against Rothrock and Christopher.
Inmates don’t have a constitutional right to have their
prison grievances resolved to their satisfaction. See Geiger
v Jowers, 404 F3d 371, 374 (5th Cir 2005, per curiam).
Absent such a right, a prison official’s failure to investigate
a grievance doesn’t violate a prisoner’s constitutional
rights, making a §1983 due process claim based on the
alleged failure to investigate grievances “indisputably
meritless.” Hill v Walker, 718 F Appx 243, 250 (5th Cir
2018, per curiam).
Plaintiff’s allegations against Williams based on a
failure to investigate his grievances don’t state a claim for
a constitutional violation and so can’t support liability
under §1983.
The motion to dismiss by Williams will be granted. The
claims against her will be dismissed with prejudice.
c. Deliberate indifference
Plaintiff claims that Defendants are liable for damages
because they were deliberately indifferent to his need for
medical care and treatment and his alleged need for
medical restrictions and passes.
The Eighth Amendment’s prohibition against cruel and
unusual punishment guarantees prisoners the right to
have their serious medical needs addressed. See Gobert v
Caldwell, 463 F3d 339, 345 (5th Cir 2006). Prison officials
violate that right when they evince deliberate indifference
to a prisoner’s serious medical needs, resulting in the
unnecessary and wanton infliction of pain. Wilson v Seiter,
501 US 294, 297 (1991).
But the standard for deliberate indifference is an
“extremely high” one to meet. Domino v Texas Department
of Criminal Justice, 239 F3d 752, 756 (5th Cir 2001). “For
an official to act with deliberate indifference, ‘the official
must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.’” Smith v Brenoettsy,
158 F3d 908, 912 (5th Cir 1998), quoting Farmer v
Brennan, 511 US 825, 837 (1994). The plaintiff must also
allege facts showing that the defendant, despite knowing
of the risk, “refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Domino, 239 F3d
at 756, quoting Johnson v Treen, 759 F2d 1236, 1238 (5th
Cir 1985).
Actions and decisions by officials that are “merely
inept, erroneous, ineffective or negligent” don’t amount to
deliberate indifference. Doe v Dallas Independent School
District, 153 F3d 211, 219 (5th Cir 1998); see also Farmer,
511 US at 835. This means that neither medical
malpractice nor negligent treatment present an issue of
federal constitutional dimension. Mendoza v Lynaugh,
989 F2d 191, 195 (5th Cir 1993). Further, any decision on
whether to provide more or different treatment “is a classic
example of a matter for medical judgment.” Estelle v
Gamble, 429 US 97, 107 (1976).
Plaintiff hasn’t alleged facts satisfying this extremely
high standard. He acknowledges that he had multiple
appointments with Christopher during 2019 at which he
received medical care, although he characterizes the care
as “inadequate.” He admits that he was referred to a “lung
specialist” in 2019, an orthopedic specialist for his back in
2020, and an orthopedic specialist for his shoulders in
2021. He alleges that shortly after Rothrock arrived at the
Wynne Unit in 2020, unit-wide restrictions were put in
place limiting clinic visits to emergencies and COVID-19
patients. Despite these limitations, he doesn’t allege that
he was denied medical treatment during that time.
Plaintiff’s dissatisfaction with the medical care he
received doesn’t amount to evidence of deliberate
indifference. And his conclusory allegations that
Defendants acted with deliberate indifference aren’t
sufficient to maintain this claim. See Fernandez-Montes v
Allied Pilots Association, 987 F2d 278, 284 (5th Cir 1993):
“Conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion
to dismiss.”
It’s also apparent from the amended complaint that
Plaintiff’s claims don’t arise from an alleged lack of medical
care but instead from the revocation of his medical
restrictions and passes. But a prisoner’s disagreement with
his medical classification doesn’t state a constitutional
claim. Winston v Stacks, 243 F Appx 805, 807 (5th Cir 2007,
per curiam), citing Wilson v Budney, 976 F2d 957, 958 (5th
Cir 1992, per curiam). Plaintiff’s complaints concerning
Defendants’ actions relating to his medical restrictions and
passes don’t establish the deliberate indifference necessary
to support an Eighth Amendment claim. He isn’t entitled
to relief from Defendants on this basis.
The motion by Defendants to dismiss the claims
against them based on deliberate indifference will be
granted. The claims by Plaintiff based on deliberate
indifference will be dismissed with prejudice.
d. Retaliation
Plaintiff alleges that Defendants retaliated against
him for exercising his First Amendment right to file
grievances about the medical care he received.
The Fifth Circuit teaches that prison officials “may not
retaliate against or harass an inmate for complaining
through proper channels about a guard’s misconduct.”
Morris v Powell, 449 F3d 682, 684 (5th Cir 2006), citing
Woods v Smith, 60 F3d 1161, 1164 (5th Cir 1995). A prima
facie case of retaliation in the prison context requires the
plaintiff to show that (i) he exercised a specific
constitutional right, (ii) the defendant intended to retaliate
against him for the exercise of that right, (iii) the defendant
took a retaliatory adverse action, and (iv) the plaintiff’s
exercise of the constitutional right caused the retaliatory
adverse action. Johnson v Rodriguez, 110 F3d 299, 310
(5th Cir 1997). The adverse acts must be sufficiently
serious to rise to the level of a constitutional violation.
Morris, 449 F3d at 684–85. That standard requires acts
that “would chill or silence a person of ordinary firmness
from future First Amendment activities.” Id at 685–86,
quoting Crawford-El v Britton, 93 F3d 813, 826 (DC Cir
1996).
Defendants contend that Plaintiff fails to establish the
fourth element. To allege the causation element in a
retaliation claim, the plaintiff must either “produce direct
evidence of retaliation or, the more probable scenario, a
chronology of events from which retaliation may plausibly
be inferred. Woods, 60 F3d at 1166. The plaintiff’s personal
belief that he’s the victim of retaliation isn’t sufficient.
Johnson, 110 F3d at 310.
Plaintiff’s allegations don’t meet this standard. He
alleges that a person named Hall at the Estelle Unit
canceled all of his medical restrictions and passes in
retaliation for Plaintiff filing grievances against him.
But Hall isn’t a defendant in this action.
As to Christopher, Plaintiff alleges that she reinstated
some, but not all, of his medical restrictions and passes
when he got to the Wynne Unit in 2018. But he alleges no
facts showing that Christopher knew that he had filed
grievances against Hall or any other TDCJ employee at
that time. Nor does he allege facts showing that
Christopher had any other motive to retaliate against him
at that time. Absent evidence that she knew of his exercise
of his constitutional rights, he doesn’t allege a viable
retaliation claim against her based on the grievances he
filed against Hall.
Plaintiff also alleges that Christopher retaliated
against him by telling Rothrock that he had refused
treatment and exams, was a sex offender, and had filed
grievances against medical staff. But to prove a claim of
retaliation, a prisoner must show that he “suffered a
concrete, tangible harm” as a result of the action. Hudson
v University of Texas Medical Branch, 441 F Appx 291, 293
(5th Cir 2011, per curiam). Christopher’s decision to share
her views about Plaintiff with Rothrock may have altered
Rothrock’s opinion of him, but he doesn’t allege facts
showing that Christopher’s act of expressing her opinions
to Rothrock directly resulted in any concrete or tangible
harm. His personal belief that these statements were made
in retaliation for his prior filing of grievances isn’t
sufficient to sustain this claim against Christopher.
As to Rothrock, Plaintiff alleges that she revoked his
medical restrictions and passes after learning from
Christopher that he had refused medical exams and
treatment, that he is a sex offender, and that he “wrote
some grievances on medical staff.” Dkt 20 at 5. At a later
appointment, Rothrock also allegedly told Plaintiff that she
was tired of hearing his name at meetings, in discussions,
and in reports. Id at 7. After saying that, she refused to
reinstate his medical restrictions and passes based on the
five-year-old medical assessments in Plaintiff’s file because
they were prepared by technicians rather than physicians.
Ibid.
Even liberally construed, these allegations don’t show
that Rothrock retaliated against Plaintiff for his exercise of
a constitutional right. For example, to the extent that
Plaintiff contends that Rothrock retaliated against him
because he’s a sex offender, generalized bias against sex
offenders doesn’t implicate Plaintiff’s exercise of a
constitutional right. See Sorrow v Executive Director
TDCJ, 2017 WL 5068155, *7 (SD Tex). The same is true for
a contention that Rothrock retaliated against him for
refusing medical exams and treatments. Any decision by
Rothrock to rely only on physicians’ records rather than
five-year-old reports from radiation technicians is an
exercise of her medical judgment that won’t support a
retaliation claim.
Plaintiff doesn’t allege facts demonstrating that
Defendants intended to retaliate against him, and the
chronology of events he presents doesn’t support an
inference of such an intent. His conclusory allegations of
retaliation based on his personal beliefs are legally
insufficient to state a claim for retaliation against
Defendants.
The motion by Defendants to dismiss the retaliation
claims against them will be granted. The claims by
Plaintiff for retaliation will be dismissed with prejudice.
e. Equal protection
Plaintiff alleges that Rothrock denied him equal
protection by refusing to reissue his medical restrictions
and passes.
To establish an equal protection claim, the plaintiff
must show that two or more classifications of similarly
situated persons were treated differently. Gallegos-
Hernandez v. United States, 688 F3d 190, 195 (5th Cir
2012, per curiam). Once that element is established, courts
consider the level of scrutiny to apply. Ibid. “[S]trict
scrutiny is appropriate only where a government
classification implicates a suspect class or a fundamental
right. . . . Otherwise, rational-basis review applies and this
court need only determine whether the classification is
rationally related to a legitimate government interest.”
Ibid, quoting Rublee v Fleming, 160 F3d 213, 217 (5th Cir
1998, per curiam).
Plaintiff’s claim fails for two reasons. First, he doesn’t
identify a class of prisoners who are similarly situated to
him but who are being treated differently from him.
Second, even assuming he’s claiming he’s being treated
differently from other inmates with similar physical
disabilities, “disability is not a suspect classification like
race, alienage, or national origin, or a quasi-suspect
classification like gender.” D.C. v Klein Independent School
District, 711 F Supp 2d 739, 748 (SD Tex 2010), citing City
of Cleburne, Texas v Cleburne Living Center, 473 US 432,
442 (1985). Rational basis review would therefore apply.
And Rothrock’s decision to require new medical
evaluations before issuing medical restrictions and passes
rather than relying on five-year-old reports provides at
least a rational basis.
The motion by Defendants to dismiss the equal
protection claim against them is granted. The equal
protection claim by Plaintiff is dismissed with prejudice.
f. Negligence
Plaintiff alleges that Defendants were negligent in
providing him with medical care and treatment.
To the extent that he brings this claim under §1983, he
fails to state a claim because, as explained above, neither
medical malpractice nor negligent treatment presents an
issue of federal constitutional dimension. Mendoza,
989 F2d at 195. To the extent that he brings this claim
under state law, it’s barred for two reasons.
First, Defendants have statutory immunity under the
Texas Tort Claims Act, which governs tort claims against
the state and its employees. Relevant here, the TTCA
provides:
If a suit is filed against an employee of a
governmental unit based on conduct within
the general scope of that employee’s
employment and if it could have been
brought under this chapter against the
governmental unit, the suit is considered to
be against the employee in the employee’s
official capacity only.
Texas Civ Prac & Rem Code §101.106(f). This provision
“foreclose[s] suit against a government employee in his
individual capacity if he was acting within the scope of
employment.” Franka v Velasquez, 332 SW3d 367, 381 (Tex
2011). It applies even if sovereign immunity bars the claim
against the government unit. Texas Department of Aging &
Disability Services v. Cannon, 453 SW3d 411, 415
(Tex 2015). If an employee moves for dismissal on this
basis, the action must be dismissed. Tex Civ Prac & Rem
Code §101.106(f).
Under the TCCA, scope of employment means “the
performance for a governmental unit of the duties of an
employee’s office or employment and includes being in or
about the performance of a task lawfully assigned to an
employee by competent authority.” Tex Civ Prac & Rem
Code §101.001(5). “An official acts within the scope of her
authority if she is discharging the duties generally
assigned to her.” City of Lancaster v Chambers, 883 SW2d
650, 658 (Tex 1994). When it’s undisputed that the
government employee was acting in the course and scope
of her employment, a claim against that employee must be
dismissed under §101.106(f). See Carr v City of Spring
Valley Village, 2019 WL 1276100, *13 (SD Tex).
It’s undisputed here that Defendants were acting
within the scope of their employment when addressing
Plaintiff’s requests for medical care and treatment. Any
actions they took with respect to Plaintiff occurred while
they were engaged in that employment. Plaintiff’s claims
against Defendants for medical negligence are therefore
barred by the TTCA.
Second, Plaintiff’s medical negligence claims don’t fall
within the waiver of immunity set out in the TTCA. The
TTCA waives governmental immunity for only three types
of claims, being “(1) injury caused by an employee’s use of
a motor-driven vehicle within the scope of his employment;
(2) injury caused by a condition or use of tangible personal
or real property; and (3) premises defects.” Morgan v City
of Alvin, 175 SW3d 408, 418 (Tex App–Houston [1st Dist]
2004, no pet), citing Tex Civ Prac & Rem Code §101.021–
.022. Plaintiff’s medical negligence claims don’t fall within
any of these exceptions.
The motion by Defendants to dismiss the negligence
claims against them will be granted. The negligence claims
by Plaintiff will be dismissed with prejudice.
g. Falsifying medical records
Plaintiff alleges that Wilson falsified his medical
records to cover up the alleged denials of medical care.
While jurisdiction over Wilson is lacking due to the lack of
service of process, the claims against her are also subject
to dismissal.
Falsifying prison records, standing alone, doesn’t
violate the Constitution. For example, see Henderson v
Buttross, 2017 WL 2391806, *3 (WD Tex); Fountain v
Thaler, 2015 WL 5168775, *11 (ED Tex), citing Hernandez
v Estelle, 788 F2d 1154, 1158 (5th Cir 1986). Conclusory
allegations that classification or medical records have been
“falsified” are thus insufficient to state a claim upon which
relief can be granted. See Knighten v Ott, 2003 WL
21355964, *1 (5th Cir, per curiam). Instead, a prisoner
must allege how the falsified records themselves violated
his constitutional rights. See Gravely v Speranza,
219 F Appx 213, 215 (3d Cir 2007, per curiam) (affirming
dismissal of claims based on falsified documents when
prisoner “did not give any indication as to what documents
he believed were falsified or how their alleged falsification
violated his constitutional rights”); Fountain, 2015 WL
5168775 at * 11 (dismissing claim based on falsification of
grievance records when prisoner failed to show that
falsification “violated any right protected by the
Constitution”).
Plaintiff doesn’t allege facts showing that he was
denied medical care because of the alleged falsifications of
his medical records. Instead, he affirmatively alleges that
his medical records were falsified after the fact to cover up
prior violations of his right to proper medical care. Any
constitutional violations therefore predated the change in
the records and did not, in and of themselves, violate his
constitutional rights.
The claims by Plaintiff based on falsification of records
are dismissed with prejudice for failing to state a claim
upon which relief can be granted.
h. Qualified immunity
Finally, Defendants raise the affirmative defense of
qualified immunity. This protects government officials
“from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Pearson v Callahan, 555 US 223, 231 (2009),
quoting Harlow v Fitzgerald, 457 US 800, 818 (1982). Its
availability as a defense ultimately “turns only upon the
objective reasonableness of the defendant’s acts.”
Thompson v Upshur County, 245 F3d 447, 457 (5th Cir
2001).
Analysis of qualified immunity involves two inquiries.
See Aguirre v City of San Antonio, 995 F3d 395, 406
(5th Cir 2021); see also Batyukova v Doege, 994 F3d 717,
724-25 (5th Cir 2021). A court first asks “whether the facts,
taken in the light most favorable to the party asserting the
injury, show the officer’s conduct violated a federal right.”
Aguirre, 995 F3d at 406, quoting Tolan v Cotton, 572 US
650, 655-56 (2014, per curiam). Second, it determines
whether the allegedly wrongful conduct violated clearly
established law. Tolan, 572 US at 656, citing Hope v Pelzer,
536 US 730, 739 (2002).
As explained above, Plaintiff doesn’t sufficiently allege
facts showing that any Defendant violated his constitu-
tional rights. Consideration of the second question is thus
unnecessary.
The motion by Defendants to dismiss the claims
against them based on qualified immunity will be granted.
Dkt 30. The claims by Plaintiff against Defendants are
dismissed with prejudice as barred by qualified immunity.
4. Conclusion
The motion to dismiss by Defendants is GRANTED.
Dkt 30.
The civil-rights action by Plaintiff Julian Mars
McKithan is DISMISSED WITH PREJUDICE. Dkt 1.
Any pending motions are DENIED AS MOOT.
Final judgment will be separately entered.
SO ORDERED.
Signed on _ March 13, 2026 _, at Houston, Texas.
Honorable Charles Eskridge
United States District Judge
19