# Hicks

> District Court, S.D. Texas · July 13, 2026

URL: https://www.frixlaw.com/law-library/cases/11406793

## Case

- **Full name:** Leroy Hicks, Jr v. Ed Gonzalez, et al
- **Court:** District Court, S.D. Texas
- **Decided:** July 13, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

July 13, 2026
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

LEROY HICKS, JR, § CIVIL ACTION NUMBER
(TDCJ # 02544416) § 4:23-cv-02034
Plaintiff, §
§
§
versus § JUDGE CHARLES ESKRIDGE
§
§
ED GONZALEZ, et al, §
Defendants. §
OPINION AND ORDER ON DISMISSAL
The motion for summary judgment by Defendant Ed
Gonzalez is granted. Dkt 27.
The motion for summary judgment by Plaintiff Leroy
Hicks, Jr, is denied. Dkt 32.
The civil rights action by Plaintiff Leroy Hicks, Jr, is
dismissed. Dkt 1.
1. Background
Plaintiff is currently detained in the Texas Department
of Criminal Justice–Correctional Institutions Division. He
proceeds here pro se and in forma pauperis.
Plaintiff filed a complaint under 42 USC §1983 in June
2023, when a pretrial detainee in the Harris County Jail.
He alleges that Harris County Sheriff Ed Gonzalez and the
unnamed “Director of the Harris Health” were violating his
constitutional rights by failing to provide him with timely
and proper medical care. Dkt 1. Specifically, he alleges that
he submitted numerous requests for medical care between
November 2020 and May 2023, complaining of back,
shoulder, and wrist pain. He alleges that jail staff failed or
refused on several occasions to escort him to the triage
unit, the medical clinic, or medical appointments, and that
medical staff on several occasions either ignored his
requests for care or refused to see him. Id at 4.
Plaintiff attaches as example a grievance report from
March 2021, in which he reported that jail staff refused to
escort him to a medical appointment for his back pain on
March 17, 2021. He alleges that this grievance was
determined to be founded. Id at 5, 9.
He also attaches a grievance report from April 2021, in
which he reported that medical staff refused to treat his
back pain on March 17, 2021. He alleges that this grievance
was determined to be unfounded, which he contends
conflicts with the earlier founded grievance about not being
escorted to medical on the same date. He relies on this
alleged conflict as evidence that medical staff were
falsifying records to cover up the lack of care. Id at 5, 11.
He also attaches a grievance report from October 2022,
when he complained that detention officers confiscated
wrist splints that had been prescribed for his carpal tunnel
syndrome. Id at 13. He alleges that the splints were taken
despite a medical pass for them issued by medical staff.
Id at 13, 15.
Plaintiff also provides a list of dates and times when he
alleges that he submitted requests for medical care
through the jail kiosk system that were acknowledged but
then ignored. Id at 17–18. He contends that these records
show that both Gonzalez and the Director were
deliberately indifferent to his need for timely and proper
medical care. Id at 3, 6.
Plaintiff provided upon request a supplemental
statement of his claims. Dkt 9. He there alleges that he
suffers from shoulder pain, back pain, leg and hip pain,
carpal tunnel syndrome, and neuropathy in his feet. Id
at 4–5. He admits that medical staff issued a medical pass
for certain shoes to help him with the neuropathy. Id at 5,
12. He admits that medical staff prescribed wrist splints
for his carpal tunnel syndrome. Id at 4. He also admits that
medical staff prescribed naproxen, ibuprofen, and
gabapentin at various times to treat his pain. Ibid. But he
asserts that he has never been formally evaluated by a
physician to determine the cause of his pain nor ever
effectively been treated for it. Id at 4–5, 9, 16.
Plaintiff describes Gonzalez as “the ultimate authority
in the jail system” and alleges that detention officers under
his supervision intentionally denied or delayed access to
medical treatment by failing to escort Plaintiff to obtain
medical care. Id at 2. He alleges that Gonzalez violated his
civil rights by failing to have enough staff on duty to escort
him to the medical clinic as needed. Id at 1. He also alleges
that the same officers, again under Gonzalez’s supervision,
interfered with treatments ordered by medical staff. Id
at 2. He further alleges that before Harris Health took over
medical services in 2022, Gonzalez oversaw the medical
staff, who regularly ignored his pleas for care and
treatment. Id at 1–2.
As relief, he seeks an award of compensatory and
punitive damages, from Gonzalez and the Director. Dkt 1
at 4.
Service of process was ordered on Gonzalez in February
2025. Dkt 14. Gonzalez answered the complaint and filed a
motion for summary judgment. Dkts 20 & 27. Gonzalez
contends that Plaintiff’s action is barred by the statute of
limitations and by his failure to exhaust his administrative
remedies. Dkt 27 at 14–16, 20–23. He also contends that
qualified immunity pertains. Id at 16–20. He filed as
evidence the Harris County Jail Inmate Handbook,
Plaintiff’s grievance records, and a portion of Plaintiff’s
medical records. Dkts 27-1 through 27-9.
Plaintiff filed a pleading that he titled a motion for
summary judgment, but which is more in the nature of a
response. Dkt 32. He contends that his action isn’t barred
by limitations because Gonzalez’s deliberate indifference
continued within two years of the filing of the complaint.
Id at 2. He also contends that he should be deemed to have
sufficiently exhausted his administrative remedies
because jail officials acted to thwart full exhaustion. Id
at 4–6. And he contends that Gonzalez isn’t entitled to
qualified immunity because jail officials under his
leadership intentionally deprived Plaintiff of his rights. Id
at 4. He also alleges for the first time that Gonzalez had a
custom or policy of tolerating the unconstitutional actions
of his subordinates. Id at 3, 7. He also alleges for the first
time, and without specific facts, that Gonzalez was
negligent in supervising his subordinates and was
deliberately indifferent by failing to act on Plaintiff’s
grievances. Id at 2, 7.
Gonzalez responded further, stating that Plaintiff’s
unsworn and conclusory allegations are legally insufficient
to entitle him to relief. Dkt 33.
Service of process wasn’t ordered on the Director of
Harris Health, and Plaintiff’s claims against the Director
have been disposed of by separate order. Dkt 35.
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).
Rule 56(a) of the Federal Rules of Civil Procedure
requires a court to enter summary judgment when the
moving party establishes that “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” A fact is material if it “might
affect the outcome of the suit under the governing law.”
Sulzer Carbomedics, Inc v Oregon Cardio-Devices Inc,
257 F3d 449, 456 (5th Cir 2001), quoting Anderson v
Liberty Lobby Inc, 477 US 242, 248 (1986). A dispute is
genuine if the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Royal v CCC &
R Tres Arboles LLC, 736 F3d 396, 400 (5th Cir 2013),
quoting Anderson, 477 US at 248.
The summary judgment stage doesn’t involve weighing
the evidence or determining the truth of the matter.
Anderson, 477 US at 249. Disputed factual issues must be
construed in favor of the nonmoving party. Little v Liquid
Air Corporation, 37 F3d 1069, 1075 (5th Cir 1994, en banc).
All reasonable inferences must also be drawn in the light
most favorable to the nonmoving party. Carter v Dupuy,
173 F4th 561, 565 (5th Cir 2026), citing Griggs v Brewer,
841 F3d 308, 312 (5th Cir 2016). But conclusory and
unsupported statements aren’t evidence, and in the
absence of any evidence, it won’t be assumed “that the
nonmoving party could or would prove the necessary facts.”
Little, 37 F3d at 1075, citing Lujan v National Wildlife
Federation, 497 US 871, 888 (1990).
The moving party typically bears the entire burden to
demonstrate the absence of a genuine issue of material
fact. Nola Spice Designs LLC v Haydel Enterprises Inc,
783 F3d 527, 536 (5th Cir 2015); see also Celotex Corp v
Catrett, 477 US 317, 322–23 (1986). But when a motion for
summary judgment by a defendant presents a question on
which the plaintiff bears the burden of proof at trial, the
burden shifts to the plaintiff to proffer summary judgment
evidence establishing an issue of material fact warranting
trial. Nola Spice, 783 F3d at 536. To meet this burden, the
evidence must be both “competent and admissible at trial.”
Bellard v Gautreaux, 675 F3d 454, 460 (5th Cir 2012).
3. Discussion
Gonzalez raises three bases for entry of summary
judgment in his favor, which are considered in turn.
a. Statute of limitations
Gonzalez first contends that he’s entitled to entry of
summary judgment in his favor because Plaintiff filed his
action too late. The evidence shows this argument is only
partially correct.
Section 1983 doesn’t contain an explicit limitations
period, so federal courts borrow the forum state’s general
personal injury limitations period. See Bargher v White,
928 F3d 439, 444 (5th Cir 2019), citing Wallace v Kato,
549 US 384, 387 (2007). “Texas has a two-year statute of
limitations for personal injury claims[,]” so a civil rights
plaintiff in Texas has two years from the date his claims
arose to file suit. Balle v Nueces County, Texas, 952 F3d
552, 556 (5th Cir 2017), citing Piotrowski v City of Houston,
237 F3d 567, 576 (5th Cir 2001) (Piotrowski II); see also
Texas Civil Practice & Remedies Code §16.003(a).
While “state law supplies the applicable limitations
period and tolling provisions,” federal law governs when
the cause of action arises. Harris v Hegmann, 198 F3d 153,
156–57 (5th Cir 1999, per curiam). Generally, a claim
arises when “the plaintiff becomes aware that he has
suffered an injury or has sufficient information to know
that he has been injured.” Matter of Hoffman, 955 F3d 440,
444 (5th Cir 2020, per curiam), quoting Piotrowski v City of
Houston, 51 F3d 512, 516 (5th Cir 1995) (Piotrowski I). The
plaintiff only needs to know the facts that would ultimately
support a claim—not that he has a legal cause of action.
See Piotrowski II, 237 F3d at 576.
As a result, a civil rights action brought by an injured
Texas plaintiff more than two years after he knew or had
reason to know of his injury is barred by limitations and
subject to dismissal unless he can show grounds for
equitable tolling of the limitations period. See Gonzales v
Wyatt, 157 F3d 1016, 1019–20 (5th Cir 1998); Rotella v
Pederson, 144 F3d 892, 897 (5th Cir 1998) (noting that
Texas equitable-tolling principles apply to §1983 cases filed
by plaintiffs injured in Texas).
Gonzalez contends that Plaintiff’s injury arose in
January 2021, when he filed his first grievance about an
alleged denial of medical care. Because this action wasn’t
filed until June 2023—more than two years after Plaintiff
filed his first grievance—Gonzalez contends that the entire
action is barred by limitations. Dkt 27 at 14–16. Plaintiff
responds that while he was first aware of the injury at that
time, the violations and his ensuing injuries continued
with no relief until he filed this complaint. Dkt 32 at 2.
Plaintiff’s response raises the question of whether the
limitations period was tolled under the continuing-tort
doctrine. A continuing tort under Texas law is one that
“involves wrongful conduct inflicted over a period of time
that is repeated until desisted.” Exxon Mobil Corporation v
Rincones, 520 SW3d 572, 592 (Tex 2017), quoting First
General Realty Corp v Maryland Casualty Company,
981 SW2d 495, 501 (Tex App—Austin 1998, pet denied). It
generally arises when the plaintiff alleges facts
demonstrating “continuous wrongful conduct on an almost
daily basis.” Brown v Cain, 546 F Appx 471, 474 (5th Cir
2013, per curiam). When the facts show a continuing tort,
the cause of action doesn’t arise for limitations purposes
until the defendant’s wrongful conduct ends. Rincones,
520 SW3d at 592; see also Lavellee v Listi, 611 F2d 1129,
1132 (5th Cir 1980).
Plaintiff’s allegations don’t support his claim for
equitable tolling. He admittedly received medical attention
on various dates between January 2021 and May 2023, so
he doesn’t show the continuous denial of medical care
necessary to support tolling under the continuing-tort
doctrine. The continuing-tort doctrine thus doesn’t save his
claims that arose before June 2, 2021. See Nottingham v
Richardson, 499 F Appx 368, 375 (5th Cir 2012).
But without the continuing-tort doctrine, “each
instance of potentially deliberate indifference” arising from
allegedly inadequate medical care starts with the request
for medical care and ends when the inmate receives
medical attention. Ibid. Each instance of deliberate
indifference thus constitutes a discrete act for limitations
purposes. Plaintiff’s action is timely as to any alleged acts
of deliberate indifference that arose after June 2, 2021.
The motion for summary judgment by Gonzalez on the
defense of limitations will thus be granted to the extent
that it seeks dismissal of Plaintiff’s claims arising from
alleged incidents that occurred before June 2, 2021. But it
will be denied to the extent that it seeks dismissal of the
entire action as barred by limitations.
b. Exhaustion
Gonzalez next contends that Plaintiff’s action is barred
by his failure to exhaust administrative remedies.
The Prison Litigation Reform Act bars an inmate’s
§1983 action concerning prison conditions until “such
administrative remedies as are available are exhausted.”
42 USC §1997e(a). The phrase prison conditions has been
interpreted to include all types of constitutional claims. See
Porter v Nussle, 534 US 516, 532 (2002): “[W]e hold that
the PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” See also
Valentine v Collier, 956 F3d 797, 804 (5th Cir 2020,
per curiam) (exhaustion requirement applied in deliberate
indifference case). Exhaustion is mandatory, regardless of
the forms of relief sought or available through
administrative avenues. See Porter, 534 US at 524.
Courts also require “proper exhaustion of
administrative remedies.” Woodford v Ngo, 548 US 81, 84
(2006). An inmate doesn’t properly exhaust the grievance
process “by filing an untimely or otherwise procedurally
defective administrative grievance or appeal.” Id at 83–84.
Nor does he do so unless administrative remedies are
pursued to their conclusion. Wright v Hollingsworth,
260 F3d 357, 358 (5th Cir 2001).
Unlike some circuits, the Fifth Circuit takes “a strict
approach” to the exhaustion requirement. Johnson v Ford,
261 F Appx 752, 755 (5th Cir 2008, per curiam). If an
inmate doesn’t properly exhaust the available
administrative remedies, “a court may not excuse a failure
to exhaust” regardless of the circumstances. Ross v Blake,
578 US 632, 639 (2016). Instead, claims filed before an
inmate has properly exhausted his administrative
remedies must be dismissed. See Gonzalez v Seal, 702 F3d
785, 788 (5th Cir 2012, per curiam): “District courts have
no discretion to excuse a prisoner’s failure to properly
exhaust the prison grievance process before filing their
complaint.”
The Harris County Jail has a three-step administrative
remedies procedure outlined in its Inmate Handbook.
Dkt 27-1 at 6–7. Inmates must first try to resolve the issue
informally with “the Detention Officer, Deputy, or Staff
Member on duty.” If that doesn’t resolve the issue, the
inmate should ask to speak with the Floor Supervisor. If
the issue still isn’t resolved, the inmate may file a formal
grievance. Id at 7. A formal grievance may be submitted on
either a grievance form or any piece of paper. Inmates will
receive an interim response within fifteen days of receipt.
After the investigation is complete, the inmate will be
provided with a copy of the final decision. If a grievance is
determined to be either unfounded or founded/resolved,
the inmate may appeal to the Grievance Board within five
working days of the investigator’s decision. All
founded/unresolved grievances will be automatically
appealed to the Grievance Board. Ibid.
Gonzalez provided a copy of Plaintiff’s grievance
history, which shows that Plaintiff didn’t pursue the
grievance process to conclusion for any of the grievances he
filed between June 2, 2021, and the filing of this complaint.
Dkt 27-7. Plaintiff thus didn’t exhaust his administrative
remedies as to any of his live claims before filing this
action. This requires dismissal of the action, for the Fifth
Circuit clearly holds, “Pre-filing exhaustion is mandatory,
and the case must be dismissed if available administrative
remedies were not exhausted.” Gonzalez, 702 F3d at 788.
Plaintiff admits that he didn’t exhaust his available
grievance remedies as to all of his claims. Dkt 9 at 23–24.
But he responds that exhaustion should be excused
because jail officials sometimes failed to timely notify him
of decisions. He also contends that he didn’t need to file an
appeal when he obtained relief by filing the initial
grievance. Dkt 32 at 4–6.
Exhaustion isn’t required when “prison administrators
thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or
intimidation.” Ross, 578 US at 644. Courts take the
position that those circumstances render the
administrative process unavailable. Ibid.
But exhaustion will be excused only upon evidence that
prison officials actually thwarted the process. Plaintiff
offers no such evidence. He doesn’t allege that jail officials
dismissed his appeals as untimely after he was belatedly
notified of an adverse decision. He instead admits that he
simply never filed an appeal. Exhaustion was thus
thwarted by his own failure to act rather than by the
actions of jail officials. See Washington v Texas Department
of Criminal Justice, 2006 WL 3245741, *5 (SD Tex)
(rejecting argument that, because grievance appeal would
have been untimely had it been made, failure to file it
should be excused).
Plaintiff points to no evidence sufficient to raise a
genuine dispute of material fact as to his lack of
exhaustion. The motion for summary judgment by
Gonzalez on the basis of a failure to exhaust administrative
remedies is granted.
c. Qualified immunity
Dismissal for lack of exhaustion alone would dispose of
Plaintiff’s action only without prejudice. Consideration of
qualified immunity is thus necessary to determine whether
dismissal with prejudice is instead appropriate.
Qualified immunity protects government officials
“from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional 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).
Analysis of the defense involves two inquiries. See Aguirre
v City of San Antonio, 995 F3d 395, 406 (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.” Ibid, quoting
Tolan v Cotton, 572 US 650, 655–56 (2014, per curiam).
Second, it “asks whether the right in question was ‘clearly
established’ at the time of the violation.” Tolan, 572 US
at 656, citing Hope v Pelzer, 536 US 730, 739 (2002). “‘The
salient question is whether the state of the law’ at the time
of an incident provided ‘fair warning’ to the defendants
‘that their alleged conduct was unconstitutional.’” Ibid,
quoting Hope, 536 US at 741 (cleaned up). Immunity bars
the claim if the plaintiff fails to satisfy either step. See
Spikes v Wheat, 141 F4th 662, 668 (5th Cir 2025,
per curiam).
Plaintiff alleges that Gonzalez is liable for the acts of
his subordinates because he “is the ultimate authority to
the jail system.” Dkt 9 at 2. He also alleges that Gonzalez
failed to ensure that there were enough staff to escort him
to medical appointments as needed, failed to ensure that
medical staff responded to his requests for care, and failed
to prevent his officers from interfering with medical
treatment that was ordered. Id at 1–2.
Under §1983, supervisory officials aren’t responsible
for the actions of their subordinates on a theory of either
vicarious liability or respondeat superior. Hicks v LeBlanc,
81 F4th 497, 504 (5th Cir 2023), quoting Thompkins v Belt,
828 F2d 298, 303 (5th Cir 1987). Plaintiff thus can’t hold
Gonzalez liable based solely on actions taken or not taken
by his subordinates.
But supervisors can be held liable under §1983 for their
own actions. See Alton v Texas A&M University, 168 F3d
196, 200 (5th Cir 1999). To state a claim against a
supervisory official under §1983, a plaintiff must allege
facts showing either (i) the supervisor’s personal
involvement in a constitutional deprivation and a causal
connection between the supervisor’s wrongful conduct and
the deprivation, or (ii) the supervisor’s decision to
implement an unconstitutional official policy that resulted
in a constitutional injury. See Thompkins, 828 F2d at 304;
see also Gates v. Texas Department of Protective and
Regulatory Services, 537 F3d 404, 435 (5th Cir 2008).
An official policy includes “the decisions of a
government’s lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v Thompson,
563 US 51, 61 (2011). Liability attaches when “supervisory
officials implement a policy so deficient that the policy
itself is a repudiation of constitutional rights and is the
moving force of the constitutional violation.” Thompkins,
828 F2d at 304, quoting Grandstaff v City of Borger,
767 F2d 161, 169, 170 (5th Cir 1985) (cleaned up).
This standard requires more than conclusory
assertions. As framed by the Fifth Circuit, “a complaint’s
description of a policy or custom and its relationship to the
underlying constitutional violation . . . cannot be con-
clusory; it must contain specific facts.” Peña v City of Rio
Grande City, 879 F3d 613, 622 (5th Cir 2018), quoting
Spiller v City of Texas City, Police Department, 130 F3d
162, 167 (5th Cir 1997).
In addition, the plaintiff must allege facts showing that
the supervisory official implemented the official policy with
deliberate indifference to the likelihood of constitutional
violations by subordinates complying with the policy. See
Porter v Epps, 659 F3d 440, 446 (5th Cir 2011). Deliberate
indifference is “a stringent standard of fault,” one
“requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Id at 446–47,
quoting Connick, 563 US at 61. The allegations necessary
to show a supervisor’s deliberate indifference to a
likelihood of further constitutional violations generally
must include at least a pattern of similar violations. Rios v
City of Del Rio, Texas, 444 F3d 417, 427 (5th Cir 2006),
quoting Johnson v Deep East Texas Regional Narcotics
Trafficking Task Force, 379 F3d 293, 309 (5th Cir 2004).
Plaintiff doesn’t allege facts showing that Gonzalez had
any personal involvement with any of the events described
in his complaint. Indeed, he doesn’t allege facts showing
that Gonzalez was even aware of the alleged problems with
his treatment or medications. Plaintiff points to the
grievances he filed, but those grievances don’t show that
Gonzalez personally knew of the alleged violations of
Plaintiff’s rights. See Blackmon v Kukua, 758 F Supp 2d
398, 411 (SD Tex 2010), citing Kidd v Livingston, 2010 WL
2208247, *3 (ED Tex) (filing grievances with prison unit
wasn’t sufficient to put executive director on notice of
alleged violations); see also Reagan v Burns, 2019 WL
6733023, *8 (ND Tex): “A failure to respond to a letter or
grievance does not rise to the required level of personal
involvement for liability.”
Plaintiff also doesn’t allege facts showing that
Gonzalez implemented an unconstitutional policy that was
the moving force behind the alleged violations of Plaintiff’s
rights. He identifies no specific policy that caused the
alleged violations. He includes no allegations of prior
similar incidents that might show a custom or practice
adopted or endorsed by Gonzalez. And he alleges no facts
showing that Gonzalez knew of any similar violations and
responded to them with deliberate indifference to the
likelihood of further violations. Reagan, 2019 WL 6733023
at *8 (courts will impute to supervisory officials the
knowledge necessary to find deliberate indifference only
when “there is evidence of a history of widespread abuse”).
He thus fails to state a claim of supervisory liability upon
which relief can be granted.
Gonzalez admittedly relies on facts different from those
discussed above to support his claim of qualified immunity,
taking issue with the accuracy of Plaintiff’s allegations
rather than their adequacy. But a district court may “grant
summary judgment on the basis of facts shown by
competent evidence in the record, even if those facts are not
highlighted in the motion for summary judgment.” United
States v Houston Pipeline Co, 37 F3d 224, 227 (5th Cir
1994). Summary judgment may thus be granted on any
ground supported by the record, even if that ground isn’t
specifically raised by the movant. Ibid.
Plaintiff’s response alleges for the first time that
Gonzalez had a custom or policy of tolerating the
unconstitutional actions of his subordinates, that he was
negligent in supervising his subordinates, and that he was
deliberately indifferent by failing to act on Plaintiff’s
grievances. Dkt 32 at 2–3, 7. This is properly rejected, if
only because the Fifth Circuit holds, “A claim which is not
raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly
before the court.” Bye v MGM Resorts International Inc,
49 F4th 918, 925 (5th Cir 2022), quoting Jackson v
Gautreaux, 3 F4th 182, 188 (5th Cir 2021). But even if
these new allegations could be considered, Plaintiff offers
no evidence to support them. His unsupported and
conclusory allegations of wrongdoing are insufficient to
raise the genuine issues of material fact necessary to avoid
entry of summary judgment in favor of Gonzalez.
The record doesn’t establish a basis for a claim of
supervisory liability against Gonzalez. Absent such a basis,
Plaintiff fails to overcome the first element of the qualified
immunity defense. Analysis of the second element is thus
unnecessary.
Gonzalez is entitled to summary judgment on the
defense of qualified immunity. His motion for summary
judgment on that basis will be granted, and the claims
asserted by Plaintiff against him will be dismissed with
prejudice.
4. Conclusion
The motion for summary judgment by Defendant Ed
Gonzalez is GRANTED. Dkt 27.
The putative motion for summary judgment by
Plaintiff Leroy Hicks, Jr, is DENIED. Dkt 32.
The claims by Plaintiff Leroy Hicks, Jr, against
Defendant Ed Gonzalez are DISMISSED WITH PREJUDICE.
Dkt 1.
Any other pending motions are DENIED AS MOOT.
Final judgment will enter separately.
SO ORDERED.
Signed on July 13, 2026 , at Houston, Texas.
Alida
Honorable Charles Egkridge
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11406793. Public record. Not legal advice.