Thomas

□ Southern District of Texas

ENTERED

August 14, 2026

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

JEWELL THOMAS, §

§

Plaintiff, §

Vv. § CIVIL ACTION NO. 2:23-CV-00190

§

WARDEN ELBERT HOLMES, et al., §

§

Defendants. §

MEMORANDUM ORDER AND OPINION ON PENDING MOTIONS

Plaintiff Jewell Thomas, an inmate appearing pro se, has filed this prisoner civil rights

action pursuant to 42 U.S.C. § 1983. He has paid the $402.00 filing fee. Pending before the Court

are the following:

e a Motion for Summary Judgment filed by Adrian Amonett, Bryan Collier, Elbert

Holmes, Dr. Isaac Kwarteng, Larissa Wysocki, Bobby Lumpkin, Jerry Sanchez,

and the State of Texas, (D.E. 84);

e Plaintiff's Motion for Summary Judgment. (D.E. 93);

e Plaintiff's renewed motion for a temporary restraining order (“TRO”) or other

preliminary injunctive relief, (D.E. 106)'; and

e Plaintiffs Motion to Vacate Notice of Appeal to the Fifth Circuit, (D.E. 110).

‘On July 6, 2026, the Court denied Plaintiff's Second Motion for Emergency Injunctive Relief, construed

as seeking a TRO. (D.E. 104). One week later, the Court received Plaintiff's renewed motion seeking a

TRO or other preliminary injunctive relief. (D.E.106).

2 Plaintiff's motion to vacate concerns his July 13, 2026, filing which was originally docketed as a notice

of appeal to the Fifth Circuit, (D.E. 105), but which the Court has since recharacterized as a motion seeking

the district court’s ruling on the pending summary judgment motions. (D.E. 108).

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The referral of these motions to Magistrate Judge Julie K. Hampton is TERMINATED.

For the reasons stated herein, the Court: (1) GRANTS Defendants’ Motion for Summary

Judgment in its entirety, (D.E. 84); (2) DENIES Plaintiff's Motion for Summary Judgment in its

entirety, (D.E. 93); (3) DENIES as moot Plaintiff’s renewed motion for preliminary injunctive

relief, (D.E. 106); and DENIES as moot Plaintiff's motion to vacate notice of appeal, (D.E. 110).

I. Jurisdiction

The Court has federal question jurisdiction over this civil action pursuant to 28 U.S.C.

§ 1331.

II. Background

A. Procedural Background

Plaintiff is a prisoner in the Texas Department of Criminal Justice, Correctional Institutions

Division (TDCJ-CID) and is currently housed at the McConnell Unit in Beeville, Texas. Plaintiff's

allegations in this case arise in connection with his former housing assignment. Plaintiff claims

that the defendants violated his Eighth Amendment rights, his rights under the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12189, and his rights under the Rehabilitation Act

(RA), 29 U.S.C. §§ 701-797. (D.E. 1, p. 5); (D.E. 1-1, p. 3-19). Plaintiff broadly alleges he was

subjected to excessively hot living conditions at his former housing assignment and denied

appropriate medical care in connection with the excessive heat conditions. Id.

3 This case was initially referred to Magistrate Judge Mitchel Neurock for case management. On November

18, 2025, this case and all pending motions/case management matters were referred to Magistrate Judge

Hampton. (D.E. 96).

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On August 14, 2023, the Court received Plaintiff's Amended Complaint in which he

reasserted his claims under the Eighth Amendment, the ADA, and the RA. (D.E. 5, p. 8-20).

Plaintiff named fourteen defendants in his Amended Complaint:

e Elbert Holmes, a former McConnell Unit warden (“Warden Holmes”);

e Jerry Sanchez, another former McConnell Unit warden (“Warden Sanchez”);

e Placido Samaniego, an assistant warden at the McConnell Unit (“Assistant Warden

Samaniego”);

e James Tanner, unit major at the McConnell Unit (“Major Tanner”);

e Adan Cavazos, unit lieutenant at the McConnell Unit (“Lieutenant Cavazos”);

e Alexis Jimenez, unit sergeant at the McConnell Unit (“Sergeant Jimenez”);

° Adriana Gonzalez-Diaz, unit sergeant at the McConnell Unit (“Sergeant Gonzalez-

Diaz’);

° Jessy Perez, unit sergeant at the McConnell Unit (“Sergeant Perez”);

e Dr. Isaac Kwarteng, medical director at the McConnell Unit (“Dr. Kwarteng”);

° Bobby Lumpkin, former TDCJ-CID Director (“Director Lumpkin”);

e Bryan Collier, TDCJ Executive Director (“Executive Director Collier”);

e the State of Texas;

e John Doe, the current McConnell Unit (“Warden John Doe”); and

e Candice Flannin, a deputy warden at the McConnell Unit (“Deputy Warden

Flannin”).

Id. at 6-7.

Following the filing of his Amended Complaint, the Magistrate Judge issued an order

directing Plaintiff to respond to a questionnaire containing 22 questions. (D.E. 9). Plaintiff filed a

More Definite Statement containing his responses to the questions posed by the Court. (D.E. 10).

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The Magistrate Judge then issued an order on March 15, 2024, which granted the following

motions:

e Plaintiffs motion to amend his responses to Questions 13 and 14 (D.E. 11);

e Plaintiff's motion to amend his Amended Complaint by:

O dismissing Major Tanner from this case;

Oo adding Dr. Gary Morton, a physician employed at the McConnell Unit (“Dr.

Morton”) as a party defendant;

Oo substituting former Warden Adrian Amonett (“Warden Amonett”) in place

of the “Warden John Doe” defendant; and

Oo changing Warden Flannin’s last name to “Flannel” (hereinafter “Deputy

Warden Flannel”).

(D.E. 15). With these changes, Plaintiff sued the following 14 Defendants: Warden Holmes;

Warden Sanchez; Assistant Warden Samaniego; Lieutenant Cavazos; Sergeant Jimenez; Sergeant

Gonzalez-Diaz; Sergeant Perez; Dr. Kwarteng; Dr. Morton; Director Lumpkin; Executive Director

Collier; the State of Texas; Warden Amonett; and Deputy Warden Flannel.

Plaintiff seeks monetary relief consisting of $500,000 in compensatory damages and

unspecified punitive damages. (D.E. 6, p. 4). Implicit in his Amended Complaint and response to

the Questionnaire are requests for injunctive relief in the form of access to the full respite program,

which includes unlimited access to an air-conditioned environment upon request without being

placed in a3 x 3-foot holding cell. See (D.E. 6); (D.E. 10).

B. Screening and Dismissal of Several Defendants

The Court retained the following claims after screening this action:

e Plaintiff’s Eighth Amendment deliberate indifference claim of supervisory liability

against Warden Holmes in his individual capacity for putting into place and

enforcing policies limiting wellness checks, providing inadequate space for inmates

like Plaintiff requesting air-conditioned respite, inadequately staffing a sufficient

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number of escorts for Plaintiff to access respite upon request, and placing G5

inmates in an overly restrictive location (3 x 3-foot holding cell) for respite;

° Plaintiff's Eighth Amendment deliberate indifference claims of supervisory

liability against Warden Sanchez in his individual capacity for putting into place or

continuing policies limiting wellness checks, providing inadequate space for

inmates like Plaintiff requesting air-conditioned respite, inadequately staffing a

sufficient number of escorts for Plaintiff to access respite upon request; placing G5

inmates in a restrictive location (3 x 3-foot holding cell) for respite, and denying

respite for GS inmates like Plaintiff altogether from April 2022 through August

2022;

e Plaintiff’s Eighth Amendment deliberate indifference claim of supervisory liability

against Warden Amonett in his individual capacity for putting into place or

continuing policies limiting wellness checks, providing inadequate space for

inmates like Plaintiff requesting air-conditioned respite, inadequately staffing a

sufficient number of escorts for Plaintiff to access respite upon request, placing

inmates in a restrictive location (3 x 3-foot holding cell) for respite, and denying

G5 inmates like Plaintiff the ability to access respite;

° Plaintiffs Eighth Amendment deliberate indifference claim against Dr. Kwarteng

in his individual capacity based on his awareness of Plaintiffs heat-related medical

issues from June 2022 through August 2022 and failure to attend to Plaintiff's

medical needs; and

e Plaintiff's failure-to-accommodate ADA and RA claims (access to “full-respite”

program including unlimited access to an air-conditioned environment) against the

State of Texas and against Warden Holmes, Warden Sanchez, Warden Amonett,

Deputy Warden Flannel, Assistant Warden Samaniego, Dr. Kwarteng, Sergeant

Jimenez, Sergeant Perez, Sergeant Gonzalez-Diaz, Lieutenant Cavazos, Director

Lumpkin, and Executive Director Collier in their official capacities for injunctive

relief.

(D.E. 16, p. 71-72); (D.E. 46, p. 1-3).

As part of the screening process, the Court dismissed with prejudice many additional

Eighth Amendment claims raised against several defendants. (D.E. 16, p. 73-74); (D.E. 46, p. 3—

4). With regard to the last claim brought by Plaintiff, the Court dismissed without prejudice

Plaintiff's Eighth Amendment claims of supervisory liability against Warden Holmes, Warden

Sanchez, Warden Amonett, Deputy Warden Flannel, and Assistant Warden Samaniego in their

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individual capacities based on their alleged failure to train or supervise staff.4 (D.E. 16, p. 74);

(D.E. 46, p. 4). The Court separately dismissed without prejudice for failure to serve Plaintiffs

retained claims against Assistant Warden Samaniego, Sergeant Jimenez, Sergeant Perez, Sergeant

Gonzalez-Diaz, Lieutenant Cavazos, and Deputy Warden Flannel. (D.E. 39, p. 3); (D.E. 47).

C. Denial of Plaintiff’s Motion for Emergency Injunctive Relief

On September 25, 2024, the Court received Plaintiff's Motion for Emergency Injunctive

Relief. (D.E. 50). Plaintiff claimed that prison staffers “continue to force the Plaintiff to sit inside

of the 3x3 [foot holding cell] or no respite at all.” (D.E. 50, p. 1). Liberally construed, Plaintiff

asked that he be permitted to have respite from the heat in a larger space than the 3 x 3- foot holding

cell—one in which he can elevate his leg and from which he can use the bathroom and return when

needed. Jd. at 2.

In a Memorandum and Recommendation (“M&R”) issued on November 22, 2024, the

Magistrate Judge recommended that Plaintiffs motion for preliminary injunctive relief be denied

as moot because he had already received the requested injunctive relief. (D.E. 66, p. 6-8). The

evidence presented demonstrated the following: (1) Plaintiff had been placed in an air-conditioned

environment, in a normal-sized cell; and (2) if Plaintiff is moved back to a cell in a building not

having air-conditioning, “he will have access to a large respite area (there is one in each building)

in which he will be able to elevate his leg and will have access to a bathroom when needed.” Jd. at

7, Plaintiff did not file any objections. On December 30, 2024, the Court adopted the November

22, 2024 M&R and denied as moot Plaintiffs Motion for Emergency Injunctive Relief. (D.E. 73).

4 The Court granted Plaintiff leave to amend the Amended Complaint only “with respect to presenting

allegations detailing the respective duties and roles of Warden Holmes, Warden Sanchez, Warden Amonett,

Warden Flannel, and Warden Samaniego in training and supervising subordinate staff during excessive heat

conetions.” (D.E. 46, p. 4). Plaintiff failed to submit amendments on this issue,

D. Substitution of Parties and Summary Judgment Motions

As noted above, the Court has retained ADA and RA claims against several Defendants in

their official capacities, including Warden Amonett, Director Lumpkin, and Executive Director

Collier. However, Warden Larissa Wysocki (“Warden Wysocki”) recently replaced Warden

Amonett as the McConnell Unit’s senior warden. (D.E. 84, p. 7 n.1). Furthermore, Eric Guerrero

(“Director Guerrero”) has replaced Director Lumpkin and is the current TDCJ Director. See

Stocker v. TDCJ Staff, No. 2:23-CV-00248, 2025 WL 2425197, at *1n.1 (S.D. Tex. Jul. 24, 2025)

(Ramos, J.). To further complicate matters, Director Lumpkin has recently replaced Executive

Director Collier as TDCJ’s current Executive Director. Pursuant to Federal Rule of Civil Procedure

25(d), the Court orders that:

e Warden Wysocky is SUBSTITUTED for Warden Amonett with respect to

Plaintiff's ADA and RA claims asserted against this defendant in her official

capacity;

° Director Guerrero is SUBSTITUTED for Director Lumpkin with respect to

PlaintifP?s ADA and RA claims asserted against this defendant in his official

capacity; and

e Executive Director Lumpkin is SUBSTITUTED for Executive Director Collier

with respect to Plaintiff's ADA and RA claims asserted against this defendant in

his official capacity.

On April 25, 2025, Warden Amonett, Warden Larissa Wysocki (“Warden Wysocki”),

Executive Director Collier, Warden Holmes, Dr. Kwarteng, Director Lumpkin, Jerry Sanchez, and

the State of Texas filed a Motion for Summary Judgment. (D.E. 84). Given the party substitutions,

the defendants properly joined in this summary judgment motion are:

e Warden Amonett in his individual capacity;

e Warden Holmes in his individual capacity;

° Jerry Sanchez, in his individual capacity;

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e Dr. Kwarteng in his individual and official capacities;

° Warden Wysocki in her official capacity;

e Executive Director Lumpkin in his official capacity;

e Director Guerrero in his official capacity; and

° the State of Texas.

(collectively “Defendants”). Plaintiff has also filed a Motion for Summary Judgment. (D.E. 93).

Defendants subsequently filed a reply in support of their summary judgment motion. (D.E. 94).

Ill. Summary Judgment Evidence

Defendants offer the following summary judgment evidence:

Ex. A: Expert Affidavit of Dr. Glenda Adams along with Plaintiffs

relevant medical records, (D.E. 86);

Ex. B: Declaration of Warden Wysocki, (D.E. 84-1);

Ex. C: Declaration of Warden Amonett, (84-2);

Ex. D: Declaration of Warden Holmes, (D.E. 84-3);

Ex. E: Declaration of Warden Sanchez, (D.E. 84-4);

Ex. F. TDCI Administrative Directive 10.64 (“AD-10.64”), (D.E. 84-5);

Ex. G. TDCI officer pocket card, (D.E. 84-6);

Ex. H: TDCJ turnout training materials, (D.E. 84-7);

Ex, I: TDCI officer pre-service training materials, (D.E. 84-8);

Ex. J: TDCI supervisor pre-service training materials, (D.E. 84-9);

Ex. K: McConnell Unit training attendance logs, (D.E. 84-10).

Plaintiffs verified Amended Complaint, (D.E. 6), serves as competent summary judgment

evidence based on his representation “under penalty of perjury” that his statements made in his

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complaint and attachments were “true and correct.” Garrett v. Davis, No. 2:14-CV-70, 2017 WL

1044969, at *3 (S.D. Tex. Mar. 20, 2017) (Ramos, J.) (collecting cases). Plaintiff's more definite

statement, (D.E. 10), given under penalty of perjury, serves as competent summary judgment

evidence too. See Garrett, 2017 WL 1044969, at *3. And, because Plaintiff further declared under

penalty of perjury that the statements made in his Motion for Summary Judgment were “true and

correct,” (D.E. 93, p. 79), this submission also constitutes competent summary judgment evidence.

Hanson v. O’Daniel, No. A-21-CV-629-RP, 2023 WL 5493607, at *2 n.5 (W.D. Tex. Aug. 23,

2023) (Pitman, J.) (collecting cases).

In addition, Plaintiff has submitted the following summary judgment evidence:

Ex, A: AD-10.64, (D.E. 93-1);

Ex. B: Plaintiff's prescribed medications and Correctional Managed Health Care

policy on heat stress, (D.E. 93-2);

Ex. C: Defendants’ Responses to Plaintiff's Discovery Requests, (D.E. 93-3);

Ex. D: McConnell Unit’s Senior Warden Employment History, (D.E. 93-4);

Ex. E: Affidavits and Declarations submitted by Senior Wardens and Dr. Adams,

(D.E. 93-5);

Ex. F: Photographs of the Administrative Building Holding Cell, (D.E. 93-6);

Ex. G: Photographs of 3 x 3-foot holding cell without special seating, (D.E. 93-7);

Ex. H: Photographs of Legal Booth without special seating, (D.E. 93-8);

Ex. I: McConnell Unit’s Heat Restriction List, (D-E. 93-9);

Ex. J: Heat and Humidity Index Chart/Graph, (D.E. 93-10);

Ex. K: Plaintiffs Medical Records — Nurses Responses to some of Plaintiff's Sick

Calls, (D.E. 93-11);

Ex. L: Plaintiffs Medical Records — MRI/X-ray Reports, (D.E. 93-12);

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Ex. M: Plaintiffs History of Restrictions, (D.E. 93-13);

Ex. N: Plaintiff's Compression Stocking and Medical Pass History, (D.E. 93-14);

Ex. O: April 17, 2023 Email to Warden Holmes and Grievance, (D.E. 93-15);

Ex. P: Plaintiffs Sick Calls, (D.E. 93-16);

Ex. Q: Pocket Card, (D.E. 93-17);

Ex. R: TDCJ Employee/Offender Training Acknowledgement Forms, (D.E. 93-

18).

IV. Summary Judgment Standard

Summary judgment is proper if there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue

exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson y, Liberty Lobby, Inc., 477 US. 242, 248 (1986). The court must examine

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

In making this determination, the court must consider the record as a whole by reviewing

all pleadings, depositions, affidavits and admissions on file, and drawing all justifiable inferences

in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451

(Sth Cir. 2002). The court may not weigh the evidence or evaluate the credibility of witnesses. Jd.

Furthermore, affidavits or declarations “must be made on personal knowledge, [shall] set out facts

that would be admissible in evidence, and [shall] show that the affiant or declarant is competent to

testify to the matters stated.” Fed. R. Civ. P. 56(c)(4); see also Cormier v. Pennzoil Expl. & Prod.

Co., 969 F.2d 1559, 1561 (Sth Cir. 1992) (per curiam) (refusing to consider affidavits that relied

on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (Sth Cir.

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1987) (per curiam) (stating that courts cannot consider hearsay evidence in affidavits and

depositions). Unauthenticated and unverified documents do not constitute proper summary

judgment evidence. King v. Dogan, 31 F.3d 344, 346 (Sth Cir. 1994) (per curiam).

The moving party bears the initial burden of showing the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S, 317, 323 (1986). Ifthe moving party demonstrates

an absence of evidence supporting the nonmoving party’s case, then the burden shifts to the

nonmoving party to come forward with specific facts showing that a genuine issue for trial does

exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To sustain this

burden, the nonmoving party cannot rest on the mere allegations of the pleadings. Fed. R. Civ. P.

56(c)(1); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise

a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment

will be granted.” Caboni, 278 F.3d at 451. “If reasonable minds could differ as to the import of the

evidence, . . . a verdict should not be directed.” Anderson, 477 USS. at 250-51.

V. Discussion

A. Injunctive Relief

A court lacks subject matter jurisdiction when a case becomes moot. See Genesis

Healthcare Corp. v. Symezyk, 569 U.S. 66, 78-79 (2013). “A case becomes moot—and therefore

no longer a ‘Case’ or ‘Controversy’ for purposes of Article I1—when the issues presented are no

longer live or the parties lack a legally cognizable interest in the outcome.” Already, L.L.C. v. Nike,

Inc., 568 U.S. 85, 91 (2013) (citation modified). “If a dispute has been resolved or if it has

evanesced because of changed circumstances, including the passage of time, it is considered

moot.” 4m. Med. Ass’n v. Bowen, 857 F.2d 267, 270 (Sth Cir. 1988) (citing Matter of S.L.E., Inc.,

674 F.2d 359, 364 (Sth Cir. 1982)). In other words, when the controversy between parties “has

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resolved to the point that they no longer qualify as ‘adverse parties with sufficient legal interests

to maintain the litigation,’ [courts] are without power to entertain the case.” Sossamon y. Lone Star

State of Tex., 560 F.3d 316, 324 (Sth Cir. 2009) (quoting United States v. Lares-Meraz, 452 F.3d

352, 354 (5th Cir. 2006)).

“A case might become moot if subsequent events made it absolutely clear that the alleged

wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw

Envy’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation modified). The party asserting

mootness generally bears the “heavy burden of persuading the court that the challenged conduct

cannot reasonably be expected to start up again.” Jd. (citation modified).

However, there is a wrinkle when the defendant is a public entity:

[G]overnment actors in their sovereign capacity and in the exercise of their official

duties are accorded a presumption of good faith because they are public servants,

not self-interested private parties. Without evidence to the contrary, [the Court]

assume|[s] that formally announced changes to official governmental policy are not

mere litigation posturing.

Sossamon, 560 F.3d at 325. Accordingly, government actors have a “lighter burden to make

absolutely clear that the [allegedly unconstitutional] condition cannot reasonably be expected to

recur.” Id. (citation modified), While the “voluntary cessation of a challenged activity does not

ordinarily deprive a federal court of its power to determine its legality, courts are justified in

treating a voluntary governmental cessation of potentially wrongful conduct with solicitude.”

Turner y. Tex. Dep’t of Crim. Just., 836 F. App’x 227, 229 (5th Cir. 2020) (per curiam) (citation

omitted). “Such self-correction provides a secure foundation for a dismissal based on mootness so

long as it appears genuine.” Jd. at 229 (citation omitted).

In this action, Plaintiff seeks injunctive relief in the form of access to the full respite

program, which includes, upon request, unlimited access to an air-conditioned environment

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without being placed in a 3 x 3-foot holding cell. See (D.E. 6); (D-E. 10). The Court retained

Plaintiff's failure-to-accommodate ADA and RA claims (access to “full-respite program including

unlimited access to an air-conditioned environment) against the State of Texas and numerous

officials in their official capacities for injunctive relief.> (D.E. 16, p. 72); (D.E. 46, p. 2-3).

Defendants contend that Plaintiff's ADA and RA claims for injunctive relief have been

rendered moot since he is currently housed in a regular-sized cell in the McConnell Unit’s 12

Building, which is fully air-conditioned. (D.E. 84, p. 19). Plaintiff did not respond directly to

Defendants’ argument on the issue of mootness. However, throughout his response, he discussed

his ADA and RA claims and advanced arguments in favor of same. See D.E. 93, pp. 18, 22-34,

42-44, 56, 74, 76.

When a plaintiff fails to respond to an argument for dismissal of a particular claim, they

have abandoned that claim. See McClelland v. Katy Independent School Dist., 63 ¥.4th 996, 1010

(Sth Cir. 2023) (collecting cases) (“This circuit’s well-settled precedent instructs that a party

abandons a claim by failing to defend it in response to motions to dismiss and other dispositive

pleadings.”). Here, Plaintiffs vigorous defense of his ADA and RA claims on the merits in his

response belies any intent by him to abandon them. The Court, therefore, cannot conclude that

Plaintiff has abandoned his ADA and RA claims seeking injunctive relief. The Court turns to

consider the substance of Defendants’ mootness argument. In support, Defendants have submitted

Warden Wysocki’s declaration in which she states:

since October 10, 2024, Plaintiff has been housed in a regular-sized cell in the

McConnell Unit’s restrictive custody (“RH”)12-Building, which is fully air-

conditioned;

5 The Court did not determine at screening that Plaintiff sought injunctive relief with respect to the Eighth

Amendment claims retained in this case. (D.E. 16, pp. 71-72; D.E. 46, pp. 1-3).

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° Plaintiff will remain in the 12-Building’s RC for at least a year until the UCC and

SCC conduct a custody review;

e depending on the UCC and SCC’s determination, Plaintiff's custody status may

remain RH or be upgraded;

e If his custody status remains RH, he will almost certainly continue to be housed in

the 12 Building which is air-conditioned and does not require respite or other heat-

mitigating measures;

e if his custody status is upgraded, he will likely move to a housing building with

others with his new status, where he will have unlimited access to the large, air-

conditioned multipurpose room within that building for respite; and

e if his custody status is upgraded and is moved to another building, he will have

access to all of the heat mitigation measures required by AD-10.64 and will not be

brought to the 3 x 3-foot holding cells in the 12 Building.

(D.E. 84-1, p. 3).

Significantly, Warden Wysocki’s declaration indicates that Plaintiff's current and

temporary housing in air-conditioned restrictive custody for at least one year did not arise from

any formal policy change. Rather, Warden Wysocki’s statements reflect that Plaintiff's continued

housing in air-conditioned restrictive custody after one year depends on future custody-status

decisions by the UCC and SCC. Because the implementation of a formal policy did not cause any

permanent change to Plaintiff’s current custody situation, the Court concludes that Defendants still

retain a heavy burden to show that Plaintiff will not be returned to a housing situation that is not

air-conditioned and where he may be again subjected to placement in a 3 x 3-foot holding cell for

respite in the future. Cf Sossamon, 560 F.3d at 325 (explaining that “formally announced changes

to official government policy” lead to a “lighter burden” in showing that certain conditions, such

as cell restrictions, ate not reasonably expected to reoccur).

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Warden Wysocki sets forth in her declaration various if-then scenarios regarding Plaintiff’ s

future housing which demonstrate that, even if he is transferred from an air-conditioned cell to

another building at some point in the future, he will: (1) have access to all of the heat mitigation

measures required by AD-10.64 including unlimited access to respite; and (2) he will not be

brought to 3 x 3-foot holding cell for respite. (D.E. 84-1, p. 3). In the Court’s view, these scenarios

are sufficiently exhaustive of all possible outcomes, such that Defendants have satisfied their

heavy burden to show it is “absolutely clear that the alleged wrongful behavior could not

reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189. .

Because there is no reasonable future scenario in which Plaintiff will be denied access to

the heat mitigation measures set forth in AD-10.64 including respite or provided respite in the

complained-of 3 x 3-foot holding cells in the 12-Building, he no longer has a stake in the

controversy surrounding his ADA and RA claims seeking injunctive relief. A rare exception to the

mootness doctrine, however, provides that a matter is not moot if it is “capable of repetition, yet

evading review.” This standard applies “in only the most exceptional circumstances.” National

Center for Pub. Policy Resch. v. Securities and Exchange Comm., No. 23-60230, 2025 WL

1392160, at *3 (5th Cir. May 14, 2025) (per curiam). For the standard to apply, the challenged

action must be so short in its duration that it cannot be fully litigated prior to its expiration or

cessation, and there must be a reasonable expectation that the same complaining party will be

subjected to the same action again. See id. (citing Yarls v. Bunton, 905 F.3d 905, 911 (5th Cir.

2018)).

The exception does not apply here because the remedies implemented by Defendants have

been demonstrated to be permanent and lasting in nature. There is no indication that Plaintiff will

again be subjected to enduring respite in the 3 x 3-foot holding cell. Plaintiff presents no arguments

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to suggest any reasonable expectation that, even if he should be removed from his air-conditioned

cell, he will be placed in a small holding cell for respite again in the future, or otherwise denied

access to TDCJ’s full-respite program.® Cf Haralson v. Campuzano, 356 F. App’x 692, 695-96

(5th Cir. 2009) (per curiam) (holding that the rare exception to mootness did not apply because the

possibility that plaintiff would be transferred back to the allegedly offending infirmary was too

speculative to warrant relief).

The Court concludes that Defendants have provided sufficient remedies regarding

Plaintiff's housing situation and ability to access respite without being placed in a 3 x 3-foot

holding cell that makes clear the alleged wrongful behavior cannot reasonably be expected to

recur. See Friends of the Earth, 528 U.S. at 189. Because Plaintiff is no longer subject to the

conditions giving rise to his ADA and RA claims, and it has been demonstrated that the remedies

are permanent in nature, his ADA and RA claims seeking injunctive relief have been rendered

moot. Accordingly, Defendants’ summary judgment on the issue of mootness is granted, and

Plaintiff's ADA and RA claims seeking injunctive relief are dismissed without prejudice for lack

of subject matter jurisdiction.’ See Mitchell y. Bailey, 982 F.3d 937, 944 (Sth Cir. 2020) (holding

that claims dismissed for lack of subject matter jurisdiction are dismissed without prejudice).

6 As Warden Wysocki states, Plaintiff was housed—starting on October 10, 2024—in a regular-sized air-

conditioned cell in the McConnell Unit’s restrictive custody (“RH”) Building. (D.E. 84-1, p. 3). In

connection with an emergency motion for a TRO recently filed by Plaintiff, (D.E. 101), Plaintiff was moved

on June 17, 2026, from his air-conditioned cell in the 12 Building to a non-air-conditioned cell in the same

building. (DE. 101, p. 1); (D.E. 103-1, p. 1), According to Warden Wysocki, however, Plaintiff was

returned to an air-conditioned cell one week later on June 24, 2026. (D.E. 103-1, p. 1). Plaintiff has come

forward with no evidence to show that, during this one-week period, he was denied access to any heat

mitigation measures provided in AD-10.64 or was otherwise placed in a 3 x 3-foot holding cell for respite.

The Court finds that this incident confirms that Plaintiff will not be subjected to the complained-of wrongful

behavior even should Plaintiff be moved from an air-conditioned cell at some point in the future.

7 Because his request for injunctive relief has been rendered moot, it is unnecessary for the Court to

consider: (1) Defendants’ alternative argument that his requested injunction is impermissible under the

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B. Summary Judgment Evidence Relevant to Plaintiff’s Claims on the Merits

i, Plaintiff's Statements in his Amended Complaint and More Definite Statement

(along with attachments thereto)

a. Plaintiff's medical conditions, disabilities, and limitations

Plaintiff states that he suffers from the following physical and mental health conditions:

hyperlipidemia; Type II diabetes; hypertension; seizures (TBI); Major Depression Disorder with

psychotic features; Post-Traumatic Stress Disorder (“PTSD”); and schizophrenia. (D.E. 10, p. 2).

Plaintiff states further that he takes the following medications: (1) Verapamil, for hypertension,

(2) Atorvastatin, for hyperlipidemia; (3) Metformin, Glipizide, and Novolin, for type II diabetes;

and (4) Haloperidol (or Haldol), for schizophrenia. /d. Plaintiff has the following work restrictions

in place for excessive heat conditions: (1) no work in direct sunlight; (2) no temperature extremes;

and (3) no humidity extremes. Jd.

Plaintiff states that in 2010 the Social Security Administration determined him to be

disabled “due to a vehicle v. pedestrian automobile accident.” (D.E. 10, p. 3). As a result of the

accident, Plaintiff suffers from what he calls a lateral pelvic tilt, or short-leg syndrome, which he

claims causes him to walk with an awkward gait. Jd. Plaintiff states that he further suffers from

chronic pain syndrome with pain reaching his feet, ankles, left leg, left knee, hip, entire back, and

lower neck. Jd. According to Plaintiff, his pain levels are exacerbated “while performing activities

of daily living.” Jd. Plaintiffs alleged physical limitations include the inability to stand, lift, bend,

stoop, squat, sit, and walk. Id. His alleged mental limitations include the inability to sleep, think,

concentrate, read, and breathe when he has panic attacks. Jd. Plaintiff states that his accident led

PLRA (D.E. 84, pp. 20-21); or (2) the parties’ respective arguments as to the merits of Plaintiff's ADA and

‘agus (D.E. 84, pp. 31-34; D.E. 93, pp. 72-74).

to him having PTSD, schizophrenia, and Major Depressive Disorder with psychotic features. Id.

Plaintiff further states that, [w]ith respect to excessive heat, [his] respiratory, circulatory, digestive,

and endocrine major bodily functions are impaired.” Id.

b. Plaintiffs requests to be placed in an air-conditioned environment

Plaintiff states that his prison cell (before he was moved to the 12 Building) often had heat

indices of over 100 degrees. (D.E. 93, p. 13). Plaintiff requested specific accommodations for his

disabilities through Step 1 and Step 2 grievances, in which he requested to be placed in an air-

conditioned environment without being placed inside a small holding cell. (D.E. 10, p. 4). Ina

Step 1 grievance dated June 10, 2022 (Grievance No. 2022109768), Plaintiff complained about

the excessive heat conditions and sought either to be placed in an air-conditioned cell or to be

transferred to another unit that could meet his heat restriction needs. (D.E. 6, p. 27).

Plaintiff states that he made a further accommodation request for an air-conditioned

environment on April 17, 2023, through an email to which a Step 1 grievance was attached. (D.E.

10, p. 4). Ina Step 1 grievance dated April 17, 2023 (Grievance No. 2023093591), Plaintiff again

sought either to be placed in an air-conditioned cell or to be transferred to a unit that could meet

his heat restrictions needs. (D.E. 6, p. 23). Plaintiff indicates he sent the email to Warden Holmes,

Warden Samaniego, and Warden Flannel. (D.E. 10, p. 4). Plaintiff made similar accommodation

requests at the Step 2 grievance level. Id. In response to his Step 2 grievance dated June 13, 2023,

Plaintiff was informed that his Heat Sensitivity Score was POO, and that Plaintiff therefore did not

meet the criteria for air-conditioned housing. (D.E. 6, p. 25).

Plaintiff indicates that he made multiple requests for the specific accommodation of an air-

conditioned environment with Sergeant Jimenez, Sergeant Gonzalez-Diaz, and Sergeant Perez.

(D.E. 10, p. 4). During “so called wellness checks” conducted on August 1, 2023, August 7, 2023,

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and August 8, 2023, Plaintiff's request for a similar accommodation was made to Lieutenant

Cavazos. Id.

c. Plaintiffs statements regarding TDCJ’s excessive heat policy

Plaintiff states that Administrative Directive 10.64 (“‘AD-10.64”) is designed to protect

inmates from suffering heat cramps, heat exhaustion, and heat stroke. (D.E. 10, p. 6). According

to Plaintiff, AD-10.64 requires the accommodation of inmates with medical conditions that are

aggravated by excessive heat and the accommodation of medical conditions that require certain

medications that are adversely affected by excessive heat. Jd. These accommodations, Plaintiff

says, consist of implementing safety measures to keep inmates hydrated and their bodies as cool

as possible, such as through cold showers. Id.

Plaintiff states that the “full respite program consist[s] of unlimited iced water, unlimited

cold showers throughout the day per AD-10.64[,] and unlimited access to air-conditioned

environments upon request(s).” Jd. at 5. According to Plaintiff, his injuries caused by the failure

of prison officials to fully implement AD-10.64 included heat cramps, palpitations, shortness of

breath, dizziness, trouble concentrating, lightheadedness, inability to stand walk, or lift without

chest pains, fatigue, insomnia, impairment of the thermoregulatory regulatory system, and

impaired respiratory, circulatory, endocrine, cardiovascular and digestive systems. (D.E. 10, p.

10).

d. Plaintiff's statements regarding the denial or delay of respite requests □

Plaintiff states that, from April 2022 through August 2022, when Warden Sanchez was the

McConnell Unit’s warden, each of his 30 to 50 requests for respite in an air-conditioned

environment was denied. (D.E. 6, p. 12). In response to the Court’s inquiry about incidents where

he was denied respite from April 2022 through August 2022, Plaintiff states there was a policy

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presumably put in place by Warden Sanchez contrary to AD-10.64, where all of the 300 inmates

with a G5 custody status like Plaintiff were automatically denied respite. (D-E. 10, p. 16). Plaintiff

believes that this policy was in place because there was not enough staff and other resources to

handcuff all 300 G5 inmates and escort them to and from an air-conditioned environment. Jd.

Plaintiff states that he suffered the following medical and mental conditions in connection with the

denial of respite during these months in 2022: heat cramps; chest pains; palpitations; inability to

stand, walk or lift without feeling chest pains; fatigue; impairment of the thermoregulatory system;

and impaired circulatory, endocrine, cardiovascular and digestive systems. (D.E. 10, p. 17).

Plaintiff acknowledges that although he had no access to air-conditioned environments

during these months, he was provided access to showers one to three times per week and was

getting cold water. Jd. Plaintiff denies that he was ever given access to “full respite” during these

months. Id. Plaintiff states that his requests for respite at all times generally were denied in 2022

by Sergeant Jimenez, Sergeant Gonzalez-Diaz, and Sergeant Perez due to the lack of availability

of staff and staff shortages to escort him to the air-conditioned areas. (D.E. 10, p. 5). Plaintiff lists

the following incidents in the summer of 2023 where he sought to be taken to respite:

e June 29, 2023 (11:40 p.m.) — Sergeant Gage Rivas denied Plaintiff's request for

respite due to understaffing. (D.E. 10-1, p. 2).

e June 30, 2023 (10:00 a.m. and 4:40 p.m.) — Officer Erritt denied Plaintiff’ s requests

for respite because no space was available. After checking for availability, Officer

Erritt escorted Plaintiff to respite at 6:20 p.m. on June 30. Id.

e July 1, 2023 (10:15 a.m.) — Officer Nathaniel Smith denied Plaintiff's requests for

respite due to staff shortages, meaning that no escort was available. Jd.

e July 2, 2023 (9:30 am.) — Plaintiff asked an officer to speak with Sergeant

Gonzalez-Diaz about his request to receive an escort to respite. Plaintiff, however,

did not receive respite due to understaffing. Id.

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e July 3, 2023 (10:00 a.m.) — Plaintiff requested respite from an officer during a

“special count.” Plaintiff was not escorted to respite until 3:41 p.m. where he stayed

until 5:47 p.m. Id.

e July 4, 2023 (9:45 a.m.) — Plaintiff requested respite from an unknown officer

during a “special count.” Due to staff shortages, Plaintiff was not taken to respite

until later in the afternoon. An unknown officer brought Plaintiff to respite in

Building 12 at 4:09 p.m. Jd. at 3.

e July 5, 2023 (9:09 a.m.) — Plaintiff requested respite from an unknown officer.

Plaintiff asked the officer to speak to Sergeant Jimenez who was the supervisor on

duty. Plaintiff was not offered respite until 4:50 p.m. when two officers approached

to take him to the diabetic clinic for his daily insulin. Around 5:00 p.m., Plaintiff

spoke to Warden Samaniego and Sergeant Jimenez, who indicated that the delay in

accessing respite was due to understaffing. Jd.

° July 9, 2023 — Plaintiff requested respite at an unknown time from Officer Torres,

who relayed Plaintiff's request to Sergeant Gonzalez-Diaz. At 5:50 p.m., Officer

Torres escorted Plaintiff to his insulin treatment and then to respite at the 12

Building at 6:06 p.m. Plaintiff left the respite area in Building 12 at 9:15 p.m. Jd.

e July 10, 2023 (10:18 a.m.) — Plaintiff requested respite from Officer Torres, who

then checked to see whether space was available in the 12 Building. Officer Torres

received no response. At 11:25 a.m., Plaintiff requested respite from Sergeant

Garcia. Plaintiff, however, was not offered respite until 6:30 p.m. when he was

escorted for his daily insulin injection. Plaintiff declined respite because the sun

was going down. /d. at 4.

e July 11, 2023 — Plaintiff requested respite during the morning count. Plaintiff,

however, arrived at the respite location in Building 12 at 6:06 p.m., where he stayed

for three hours. Jd.

° July 12, 2023 (10:18 a.m.) — Plaintiff requested respite during the morning count.

He arrived at the respite location at 9:15 a.m. and stayed until 1:30 p.m. Jd.

° July 13, 2023 — Plaintiff requested respite during the morning count. At 3:00 p.m.,

Sergeant Jimenez approached Plaintiff’s cell and told Plaintiff he would escort

Plaintiff to respite “when he is done with some move.” Id. at 5.

° July 14, 15, and 16, 2023 (Friday through Sunday) — Sergeant Perez confirmed to

Plaintiff that no escorts were available to take him to respite each of these three

days due to understaffing. Jd.

° July 17, 2023 (10:00 a.m.) — Plaintiff requested respite from Officer Nathaniel

Smith. However, Plaintiff received no respite that day. Id.

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e July 18, 2023 (10:18 a.m.) — Plaintiff requested respite from an unknown officer

and also instructed the officer to inform the sergeant on duty of his request. Plaintiff

did not receive respite until 5:55 p.m., after his insulin injection. Plaintiff received

respite inside a medical cell for 90 minutes. Jd.

e July 19, 2023 — Plaintiff was taken to a multi-purpose room in connection with a

shakedown. Later that day, no escort was available for his insulin injection, and

Plaintiff was not taken to respite. Id.

e July 20, 2023 — Plaintiff requested respite at an unknown time from “Sgt.

Hernandez/Fernandez from D.card.” Plaintiff, however, was not offered respite

until 6:00 p.m. when he went for his daily insulin injection. Plaintiff declined

respite because it was late in the day. Jd.

° July 21, 2023 — Plaintiff requested respite at 11:15. At 11:57 a.m., he was escorted

to respite at the 12 Building where he stayed until 3:45 p.m. Jd. at 6.

e July 22, 2023 — Plaintiff's request for respite was denied due to no availability of

escorts. Id.

e July 23, 2023 — Plaintiff requested respite at noon. He arrived at the respite location

at 1:15 p.m. where he stayed until 4:30 p.m. Jd.

e July 24, 2023 — Plaintiff requested respite from Officer Arriola at 10:30 a.m. and

instructed him to pass along his request to the sergeant. Plaintiff received no

response to his request and no respite on this day. Jd.

° July 25 and 26, 2023 — Plaintiff requested respite each of these two days around the

morning count-time from 9:45 to 10:15 am. An unknown sergeant informed

Plaintiff that no escort was available. Jd.

° July 27, 2023 — At 10:15 a.m., Plaintiff was informed by an unknown official that

there was no availability in respite in Building 12 but that the official would let

Plaintiff know when there was room. The officer, however, never provided Plaintiff

with a status update. Plaintiff was later informed that no escort was available due

to understaffing. Lastly, Plaintiff writes: “no respite showers.” Jd.

° July 28, 2023 — Plaintiff did not receive respite because no escort was available due

to understaffing. Id.

e July 29, 2023 — Plaintiff requested respite from Sergeant Garcia at 11:45 a.m.

Garcia responded that no escorts were available. Id.

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° July 30, 2023 — Plaintiff requested respite from Officer Oliveres during the morning

count. Officer Oliveres responded that no escorts were available. Jd.

e. Plaintiff's lack of access to the “full respite program”

On March 7, 2022, Plaintiffs custody status was downgraded to “GS.” (D.E. 10, p. 1).

According to Plaintiff, G5 custody status means that he is confined to closed custody status 24-

hours per day and that he is required to have an escort and hand restraints when moving about the

unit. Id.

Plaintiff states that his GS custody status required him to sit on a stool in a 3 x 3-foot

holding cell when placed in respite. Jd. at 11. Plaintiff, therefore, was placed in a small holding

cell each time he was afforded respite, with one exception occurring on July 18, 2023, when he

was placed in an air-conditioned medical cell and allowed to lie down. Jd. at 11, 13. Warden

Sanchez, Warden Holmes, and Warden Amonett enforced this policy where inmates in GS status

must be placed in a 3 x 3-foot holding cell. /d. at 11.

Plaintiff states he was harmed by being placed in the cage because there is no way to elevate

or lengthen his left leg, which is swollen due to his diabetes and lymphedema. (D.E. 6, p. 10).

Plaintiff further states that his diabetic condition caused him to urinate frequently, and that no

official was available to escort Plaintiff to the restroom. (D.E. 10, p. 12). Asa result, Plaintiff says,

he was forced to empty his water bottle and urinate into the bottle. Jd.

Plaintiff explains that his diabetic condition causes excessive thirst, and that no official was

available to provide him water while he was confined in the 3 x 3-foot holding cell. Jd. According

to Plaintiff, his injuries caused by the lack of access to the “full respite program” included heat

cramps, palpitations, body pains due to not being able to lay down in the small holding cell,

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inability to stand, walk, or lift without chest pain, fatigue, impairment of the thermoregulatory

system, and impaired circulatory, endocrine, cardiovascular and digestive systems. Jd. at 12-13.

Plaintiff states that he “was afforded access to an air conditioned environment due to

litigation.” (D.E. 10, p. 13). Plaintiff acknowledges that, since June 27, 2023, he has been provided

access to four to five cold showers per week and that “[c]old water was available most of the time

in [his] housing area.” Id.

Plaintiff states that McConnell Unit officers never performed wellness checks. (D.E. 10, p.

6). Plaintiff then indicates that no offers of cold showers meant no wellness checks, indicating that

such offers constituted the definition of a wellness check. Jd. According to Plaintiff, his injuries

caused by the lack of wellness checks included chest pains, fatigue, dizziness, heat cramps, labored

breathing, inability to sweat properly, insomnia, palpitations, impairment of the thermoregulatory

system, impaired respiratory, impaired cardiovascular, and impaired digestive systems. Id.

Plaintiff next complains about McConnell Unit officials’ failure to ensure that adequate

space was available for all inmates requesting respite. (D.E. 10, p. 7). According to Plaintiff, his

injuries caused due to the lack of available space included labored breathing, palpitations,

insomnia, shortness of breath, heat cramps, chest pains, dizziness, fatigue, inability to sweat

properly, impairment of the thermoregulatory system, and impaired respiratory, circulatory,

endocrine, cardiovascular and digestive systems. Id

Plaintiff further holds McConnell Unit officials as responsible for failing to ensure that

escorts were available when Plaintiff requested respite. (D.E. 10, p. 7). According to Plaintiff, his

injuries caused due to the lack of available escorts included palpitations, chest pains, labored

breathing, heat cramps, dizziness, inability to sweat properly, insomnia, shortness of breath,

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impairment of the thermoregulatory system, and impaired respiratory, circulatory, endocrine,

cardiovascular and digestive systems. Id.

f. Plaintiff’s statements regarding inadequate medical care

Plaintiff submitted sick call requests (“SCRs”), related to his symptoms and complications

from exposure to excessive heat, to the McConnell Unit medical department on the following

dates:

In 2022: March 28; April 12; May 9; May 12; May 15; May 30; June 2; June 6; June

8; June 11; June 12; June 15; June 18; June 21; June 23; June 26; July 6;

July 13; July 14; July 18; and August 2.

In 2023: March 30.

(D.E. 10, p. 14). In these SCRs, Plaintiff reported the following symptoms: palpitations; chest

pains; lightheadedness; dizziness; shortness of breath; labored breathing; heat cramps; inability to

sweat properly; trouble concentrating; inability to stand, walk, or lift without feeling chest pains

during the excessive heat; fatigue; trouble sleeping; impairment of the thermoregulatory system;

and impaired respiratory, circulatory, endocrine, cardiovascular and digestive systems. Id. Plaintiff

never made any requests for specific medical treatments in connection with his sick call requests,

as he expected medical personnel to know what to do. Jd.

According to Plaintiff, Dr. Kwarteng reviewed multiple SCRs. (D.E. 6, p. 18). Dr.

Kwarteng, Plaintiff says, responded to five SCRs in writing. (D.E. 10, p. 15-16). Plaintiff explains

that Dr. Kwarteng never performed any examinations on Plaintiff or provided any treatments. Id.

at 16. His written responses to five SCRs are as follows:

e June 6, 2022: “You have been assigned appropriate medical restrictions[; |”

° June 6, 2022: “You have all heat restrictions, you can always ask for respite[;]”

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° June 23, 2022: “You have all the medical restrictions based on your medical and

other conditions. The medical department does not assign inmates to special

housing areas|;]|”

e July 14, 2022: “Medical Dept[.] does not control respite. Please direct your

concerns to TDCJ[;]”

° August 2, 2022: “1. You have heat restrictions[.] 2. You can also ask to be taken

out for respite[.] 3. Stay hydrated.”

ii. Heat-Mitigation measures at the McConnell Unit

a. Administrative Directive 10.64, heat score, and heat restrictions

Defendants have submitted into evidence the tenth version of AD-10.64, effective May 8,

2020,° which was adopted to address extreme temperature conditions in TDCJ. (D.E. 84-5, p. 2—

17). AD-10.64 includes specific heat mitigation measures that are intended to protect all offenders

regardless of their individual risk level. Jd. at 5—7. Section IV(E) of AD-10.64, entitled “Offenders

shall be allowed access to respite areas during periods of excessive heat[,]” provides that

“Tol|ffenders may request access to a respite area 24 hours per day, seven days per week, even if

they are not feeling ill at the time of the request or the request is made during count time.” Jd. at

7. Offenders are also permitted to stay in the respite area as long as necessary. Id. at 7. In addition,

offenders requesting such access “are not required to be seen by medical staff unless they are

exhibiting signs or symptoms of a heat-related illness.” Jd.

Pursuant to AD-10.64, drinking water and cups are required to be available to every

offender during periods of excessive heat, and hydration is encouraged. Jd. at 5. This directive also

requires prison units to take extra precautions where the heat index is above 90 degrees, including,

but not limited to:

8 The eleventh, and presumably, latest version of AD-10.64 became effective on May 1, 2024, after the

incidents described in this lawsuit. (D.E. 84-5, p. 18-35).

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° Providing additional water and cups in offender dorms, housing areas,

recreational areas, and during mealtimes, along with ice;

° Transporting offenders during the coolest hours of the day when possible;

° Allowing offenders to utilize and carry cooling towels;

° Allowing offenders to wear shorts and t-shirts in the dayrooms and

recreational areas;

e Ensuring maintenance of fans, blowers, and showers in offender housing

areas;

e Allowing additional showers for offenders when possible;

° Lowering the water temperature for single temperature showers in offender

housing areas; and

e Allowing fans for offenders in all custody levels, to include restrictive

housing and disciplinary status, and ensuring the fan program is in place

allowing the permanent issuance of fans to indigent offenders.

Id. at 8-9.

Pursuant to AD-10.64, the wardens at TDCI units are instructed to implement additional

precautions when excessive heat or heat-wave conditions last more than three consecutive days by

initiating the Incident Command System (ICS). Jd. at 9. Under these conditions, wardens may

restrict and potentially cancel outside work and recreation as well as reduce kitchen and dish room

operations as needed. Jd. Offenders are also permitted to purchase “electrolyte sports drinks from

the unit commissary without affecting their spending limit.” Jd.

Under the AD-10.64, TDCJ recognizes that “some offenders are potentially at a heightened

tisk of heat-related illnesses because of their age, health conditions, or medications.” Id.

Accordingly, AD-10.64 explains that inmates are assessed an automated heat sensitivity score

using information from the inmate’s medical records and that “[o]ffenders who have a heat

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sensitivity score receive priority placement in a housing area that is air-conditioned.” Jd. at 10-11.

Dr. Glenda M. Adams explains in her expert affidavit:

[IIn 2017, TDCJ sought to automate identification of inmates at

increased risk for a heat-related illness due to age, medical

condition(s) and prescribed medication(s). TDCJ requested that

information about potential heat injury risk factors recorded in an

inmate’s CMHC electronic health record (EHR) be automatically

transmitted to TDCJ’s computer system. This health information is

now utilized by TDCJ to generate a ‘heat sensitivity score.” TDCJ

utilizes its proprietary ‘heat sensitivity score’ to identify inmates

considered most susceptible to heat injury. Inmates with higher ‘heat

sensitivity scores’ are given priority for assignment to air-

conditioned housing or cool beds.

(D.E. 86, p. 33).

AD-10.64 specifically references the “Heat Restriction List” as a “list of offenders with

restrictions related to physical activities, transportation, and work that have been entered in the

restrictions Module of the electronic health record (“EHR”) and transmitted to the TDCJ

mainframe HSIN screen.” (D.E. 84-5, p. 3). The policy further provides that:

During each security round, staff shall use the Heat Restriction List

to conduct wellness checks for offenders on that list. Staff shall

immediately seek care for any and all offenders requesting medical

assistance or exhibiting signs of illness, even if they are not listed

on the Heat Restriction List.

Id. at 7. Plaintiff was one of the inmates on the Heat Restriction List, dated June 16 through June

26, 2023. (D.E. 93-9, p. 2-7).

In addition, medical providers with the University of Texas Medical Branch (“UTMB”)

may assign inmates heat-related medical restrictions on their housing, transportation, and/or prison

jobs. See (D.E. 86, p. 33). Heat-related work restrictions may include: (1) no work in direct

sunlight; (2) no temperature extremes; and (3) no humidity extremes. Jd. at 32. These restrictions

are communicated by UTMB officials to TDCJ via HSM-18 forms and aid TDCJ classification

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committees in making inmate housing and work assignments. Id. at 32-33. While UTMB medical

officials assign various medical restrictions, TDCJ officials are responsible for determining respite

areas as well as an inmate’s security status, housing assignment, and work assignment. Jd. at 33.

Dr. Adams explains:

UTMB/CMC periodically reviews the medical literature for new information on

factors which can predispose a patient to an elevated heat-injury risk and updates

the electronic forms transmitted to TDCI as indicated. At inmate intake into TDCI,

at subsequent unit transfers and/or patient encounters, and whenever a patient’s

clinical status changes, UTMB updates information in the electronic health record

and that information automatically interfaces with TDCJ’s computerized

Classification System.

Id. at 33.

AD-10.64 contains additional provisions for first-aid measures in the event ofa heat-related.

illness or injury and features a standardized annual training program that is required at each unit

to ensure prevention of injuries due to excessive or extreme temperatures. (D.E. 84-5, p. 10-15).

Training is required for both officers and offenders. Id. at 11-15. TDCI staff is required to

complete hot weather training annually, no later than April 15 of each year. Id. at 12. Offenders,

in connection with their training, are provided with an information flyer for heat, cold, and suicide

prevention as well as with “unit-specific heat mitigation measures upon arrival at a new unit.” Id.

at 14.

iii, Statements from current and past McConnell Unit Wardens

Current McConnell Unit Warden Wysocki and former Wardens Amonett, Holmes, and

Sanchez uniformly state that the following heat-mitigation measures were provided to inmates in

concert with AD-10.64:

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e Inmates may request access to respite areas at any time, including during lockdowns

and countdowns, and are allowed to stay in respite as long as necessary, all the

while being provided cups, cold hydrating drinks, and electrolyte packets.

e Inmates are permitted to use the restroom and return to respite if necessary.

e While respite areas do not serve as a substitute for housing assignments and are

meant only as cool-down areas, there is no maximum time set for inmates to stay

in respite areas.

e Typically, inmates spend no more than 30-60 minutes in a respite area to cool down.

e All inmates, regardless of their custody level, are permitted to bring items with

them to respite which have been ordered by medical providers.

° For example, if an inmate is provided compression stockings as part of his medical

treatment, the inmate may wear those stockings in the respite area.

e At all relevant times during the tenure of each warden, the only McConnell Unit

building fully air-conditioned is the 12 Building, which houses inmates in

restrictive housing (“RH”), TDCI’s highest custody statuses.

° A kestrel device installed in the 12-Building monitors and tracks temperature,

humidity, heat index, and dew point to ensure that the air-conditioning is

functioning correctly at all times.

(D.E. 84-1, p. 1-2); (D-E. 84-2, p. 1-2); (DE. 84-3, p. 1-2); (D.E. 84-4, p. 1-2).

Warden Wysocki states that the remaining housing buildings currently are not air-

conditioned, but each has at least one large air-conditioned multipurpose room which is used as a

respite area. (D.E. 84-1, p. 2). Warden Amonett indicates that, due to a budget increase, TDCJ was

able to install air-conditioners in these large, multipurpose rooms. (D.E. 84-2, p. 2). According to

Warden Wysocki, these multipurpose rooms measute approximately 33 x 49-feet, can

accommodate up to 57 inmates at one time, and contain benches and tables. Jd. She explains that

inmates typically use the multipurpose rooms in their housing buildings for respite, but respite is

also available in the infirmary, library, education building, and lower administration building, and

various areas within 12-Building. Jd.

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Warden Amonett, who was the Senior McConnell Unit warden from July 15, 2023, until

February 28, 2025, states that:

Before installation of air-conditioning in the multipurpose rooms, inmates (other

than those housed in 12-Building) left their housing buildings for respite, and the

location of that respite depended on their custody status. TDCI’s custody levels

ranged from G1-G5, with G1 being the least restrictive and G5 being the most

restrictive (other than RH). Because inmates with G1-G3 custody levels were

considered lower risk and could move throughout the unit without escorts, they

were free to use communal respite areas such as the library, chapel, education

building, or lower administrative building. By contrast, because inmates with G4

and G5 statuses must be escorted everywhere and cannot mix with other inmates,

they were typically brought to 12-Building for respite.

(D.E. 84-2, p. 1-2). Warden Holmes and Warden Sanchez, both serving as McConnell Unit senior

wardens before Warden Amonett, provide similar statements with regard to inmates access to

respite. (D.E. 84-3, p. 1-2); (D.E. 84-4, p. 1-2). With respect to the availability of respite in the

12 Building for high security inmates, Wardens Amonett, Holmes, and Sanchez each explain:

There were two types of respite areas in 12-Building. First, 3° x 3’x holding cells.

Second, legal booths which measure either 3’ x 3’ or 6’ x 5°. Both the holding cells

and legal booths contained a stool, and inmates using those areas for respite had

access to cold water and bathroom facilities upon request. The use of these small

respite areas for G4 and G5 inmates was not punitive, and I never believed that

placing inmates in those areas for respite posed a risk of harm, especially since

inmates only remained in respite areas for short periods of time. The reason we

used the 12-Building holding cells and legal booths for G4/G5 respite was because

there were no other air-conditioned areas available which we could use without

posing serious security concerns. The remaining respite areas in the unit were

already occupied by G1-G3 inmates, and it was against both TDCJ policy and my

own good judgment to mix more dangerous G4/G5 inmates with these lower

custody inmates. Nor could we use regularly-sized cells or other larger areas within

12-Building for respite, since those cells and areas were being used by other

inmates assigned to that building. Even if there were regularly-sized empty cell in

12-Building (which was very rare), we could not use those cells for respite because

a chain bus could arrive at any time with inmates who, per their custody statues,

must be housed there. I recognize that using small holding cells and legal booths

for respite was less than ideal, but it was the only option (before air-conditioning

was installed in the multipurpose rooms) to ensure G4/GS5 inmates received respite

while maintaining unit-wide security.

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(D.E. 84-2, p. 2); (D.E. 84-3, p. 2); (D.E. 84-4, p. 2).

Wardens Wysocki, Amonett, Holmes, and Sanchez each state that “inmates’ access to

respite was sometimes delayed or limited due to understaffing, which was a persistent problem

across TDCJ” while each warden served as the McConnell Unit’s warden. (D.E. 84-1, p. 2); (D.E.

84-2, p. 2); (D.E. 84-3, p. 2); (D.E. 84-4, p. 2). Each warden attests:

e The McConnell Unit operated at below 50% staffing at all relevant times.

e All decisions regarding hiring and allocation of staff across units are made by

TDCI’s Security Operations and Assessments Department.

° Each senior warden has or had no power to hire staff to fill shortages.

e The most each warden could do was impose mandatory overtime and request

temporary assistance from officers at other units—which was frequently done—but

these efforts were often limited by employment policies and understaffing at other

units.

° Notwithstanding, one of the top priorities for each senior warden was to ensure that

the respite requirements of AD-10.64 were met, and each warden made every effort

to utilize staff efficiently to do so.

e For example, if there was a limited number of escorting officers available on a hot

day, the senior warden instructed the officers to prioritize escorting G4/G5 inmates

to and from respite areas, even if doing so means that fewer officers were available

to perform less-important (though technically mandatory) duties such as escorting

inmates to the library or education building. .

e Each warden also instructed officers to prioritize escorting inmates to respite areas

who showed signs of heat-related symptoms such as sweating, heavy breathing, or

lethargy.

e Based on these and other efforts, none of the senior wardens believed that any

inmate was ever denied respite entirely on high-temperature days during his or her

time as senior warden.

e Rather, at most, inmates’ access to respite may have been slightly delayed, or the

duration of their respite may be shortened.

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(D.E. 84-1, p. 2); (D.E. 84-2, p. 2-3); (D.E. 84-3, p. 2-3); (DE. 84-4, p. 2-3). Wardens Wysocki

and Sanchez further explain that “respite—like food, showers, and medical care—is considered a

basic need, and [each] ensure[d] that inmates were never deprived of that need on [his or her]

watch.” (D.E. 84-1, p. 2); (D.E. 84-4, p. 3).

Wardens Wysocki, Amonett, Holmes, and Sanchez uniformly state the following:

While waiting for respite, inmates always have access to cold water and other heat-

mitigation measures outlined in AD-10.64. Moreover, regardless of staffing, |

instruct officers to ensure that every single inmate on the daily heat restriction list

provided by UTMB receives wellness during their security rounds as required by

the policy, and I am not aware of any instance when this did not occur. I and other

McConnell Unit officials take prevention of heat-related illnesses very seriously,

and all unit staff are consistently trained in and reminded of the necessary efforts

they must take to avoid such illnesses from developing. Trainings on heat policy

{take or took] place during onboarding, yearly refreshers, and periodic on-the-job

trainings. Officers [are or were] reminded of the requirements of AD-10.64 during

turn-out on hot days.

(D.E. 84-1, p. 3); (DE. 84-2, p. 3); (D.E. 84-3, p. 3); (D.E. 84-4, p. 4), Wardens Amonett, Holmes,

and Sanchez each indicate that “a seasonal preparedness checklist was frequently distributed.”

(D.E. 84-2, p. 3); (D.E. 84-3, p. 3); (D.E. 84-4, p. 4). Warden Wysocki states that officers “carry a

pocket card which includes information on recognizing and responding to heat-related illnesses.”

(D.E. 84-1, p. 3).

Lastly, Wardens Amonett, Holmes, and Sanchez each attested as follows:

While I cannot say with certainty that every portion of AD-10.64 was followed at

all times, and there were instances where understaffing may have delayed or limited

respite access, I can attest with certainty that I did everything in my power as Senior

Warden to ensure compliance with the AD-10.64 and protect inmates from heat-

related illness. At no point did I institute a policy or practice of limiting or

prohibiting certain inmates from receiving respite or wellness checks.

Other than through this lawsuit, I am not personally aware of Plaintiff Jewell

Thomas and have no recollection of communicating with him directly. Nor do I

have any recollection of [Plaintiff] submitting grievances about heat-related issues

while I was the McConnell Unit Senior Warden. However, I am confident that any

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grievances he may have submitted were thoroughly investigated by unit- and state-

level grievance staff and responded to appropriately in a timely fashion

(D.E. 84-2, p. 3); (DE. 84-3, p. 3); (D.E. 84-4, p. 3).

iv. Plaintiffs custody status, housing, and access to heat-mitigation measures

In her expert affidavit, Dr. Adams states that Plaintiff arrived at the McConnell Unit on

October 1, 2021, after entering into TDCJ custody on June 22, 2021. (DE. 86, p. 2). Warden

Wysocki states that Plaintiff “has a long history of violent staff assaults beginning in early 2022.”

(D.E. 84-1, p. 3). She explains:

Based on this behavior and other factors, [Plaintiff] was assigned G5 custody status

from March 9, 2022 through May 9, 2024 and housed in 8-Building along with

other G5 inmates. Other than RH, GS is the highest custody status. Because of the

danger they pose to staff and other inmates, G5 inmates are restricted to their cells

for most of the day, cannot mix with inmates with lower custody level, and cannot

move anywhere in the unit without an escorting officer.

On May 29, 2024 [Plaintiffs] custody level was upgraded to G4. However, on

October 10, 2024, following a series of staff assaults, [Plaintiffs] status was

downgraded to RH by the Unit Classification Committee (“UCC”) and State

Classification Committee (“SCC”) .... [Plaintiff] has been housed in 12-Building

(in a regular-sized cell) since then, and he will remain in 12-Building (in a regular-

sized cell) for at least a year until the UCC and SCC review his custody status.

Depending on the UCC and SCC’s determination, his custody status may remain

RH or be upgraded. If his custody remains RH, he will almost certainly continue to

be housed in 12-Building. If his custody status is upgraded, he will likely move to

a housing building with others with his new status. For example, if his custody

status is upgraded to G5, he will likely move back to 8-Building, where he was

housed from 2022-2024.

Because 12-Building is fully air-conditioned and RH inmates do not leave their

housing areas except for brief periods of recreation, [Plaintiff] does not currently

require respite or any other heat-mitigation measures. If his custody status is

upgraded and he is moved to another housing building, he will have access to all of

the heat-mitigation measures required by AD-10.64. For respite, he will have

unlimited access to the air-conditioned multipurpose room within his new housing

building, and will not be brought to the 3’x 3’ 12-Building holding cells about

which he complains in this lawsuit. It is my understanding that [Plaintiff] has been

assigned compression stockings by his medical providers, and he will be permitted

to wear those stockings while in respite in the future, as he has been permitted in

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the past. [Plaintiff] does not currently have a heat score or any other medical

indication of susceptibility to heat-related illness, but if that changes he will also

receive wellness checks as described in AD-10.64. And to the extent Thomas has

heat-related work restrictions assigned by medical in the future, he will only be

assigned to a prison job which comports with those restrictions.

Id.

y. Plaintiff's medical history

a. General medical history

In her expert affidavit, Dr. Adams notes that, upon Plaintiffs arrival into TDCJ custody on

or about June 22, 2021:

Plaintiff had a medical history of 1) hypertension (HTN) diagnosed in 2002, 2) type

2 diabetes mellitus (DM II) diagnosed in 2015, 3) hyperlipidemia (HLD), i.e.

elevated cholesterol, triglycerides, and other blood lipids, 4) gastroesophageal

reflux disease (GERD), 5) decreased visual acuity requiring reading glasses, 6)

alcohol abuse, and 7) mental illness with past diagnoses of major depression, PTSD

(post-traumatic stress disorder), and schizophrenia with auditory and visual

hallucinations.

(D.E. 86, p. 2-3). After arriving in TDCJ custody, however, Plaintiffhas only been diagnosed with

PTSD. Jd.

Dr. Adams’s affidavit further reflects that, upon his arrival into TDCJ custody, “[Plaintiff]

reported injuries from a motor vehicle accident in 1996 that resulted in a traumatic brain injury

and subsequent seizure disorder, chronic low back pain, and multiple surgeries on his lower left

leg with residual deformity and recurrent edema (swelling).” Id. The objective medical evidence

further shows that:

° Plaintiff has complained “of limb shortening, pelvic tilt, and generalized chronic

pain as sequelae of his left lower leg injuries.” Id.

e Radiographs confirm chronic deformities of the left tibia and fibula along with

“secondary left tibial talar and talonavicular joints osteoarthrosis’ (ie. ankle

arthritis).” Id. at 5, 52.

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e A CT scan of Plaintiff's “left lower extremity further confirms ‘chronic healed

fracture deformities involving the left tibia and fibula’ and ‘soft tissue swelling and

edema in the left calf and left foot.’” Jd. at 5, 55.

During his TDCJ incarceration, medical staff provided Plaintiff with multiple

accommodations to meet his medical needs, including the issuance of certain medical passes. Id.

at 4. Dr. Adams states that:

At various times, [Plaintiff] has been provided HSMI1B8 restrictions of 1) lower

bunk, ground floor housing, 2) limited standing, 3) no lifting greater than 10

pounds, 4) no repetitive squatting, 5) no climbing, 6) no walking on wet uneven

surfaces, 7) no work around machines with moving parts, 8) no work in direct

sunlight, 9) no temperature extremes, 10) no humidity extremes, 11) no food service

work, 12) sedentary work only, 13) consult a representative of the medical

department prior to disciplinary action, and 14) special transportation (.e.

transportation other than ‘chain’ bus). At times, he has been issued special medical

passes for 1) slow eating (extra time for meal consumption), 2) slow walking, 3)

compression stockings, 4) miscellaneous in-cell medical supplies (e.g. bandages,

urinary catheters), 5) assistive mobility devices (e.g. cane, walker/rollator), and 6)

security restraint limitations (e.g. no short cuff behind the back, no left leg cuff or

restraint, no leg irons).

Id. at 4—5 (citation modified).

On the issues of compression stockings, Plaintiff states: (1) he first received them sometime

in late 2020, but they were too tight on his leg and caused extra pain; (2) on or about June 24,

2021, during the TDCJ’s intake process, a nurse practitioner reordered compression stockings for

Plaintiff; (3) Plaintiff never received the reordered stockings and arrived without them at the

McConnell Unit on October 1, 2021; and (4) Plaintiff did not receive his second compression

stockings until December 13, 2023. (D.E. 93, p. 26-28). Plaintiff’ s medical records show that: (1)

Plaintiff was issued a medical pass for compression stockings on November 17, 2020, for 365

days; (2) Plaintiff's compression stockings were reordered on May 24, 2021; (3) Plaintiff's

medical pass for compression stockings was discontinued on April 7, 2022, for 365 days; and (4)

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Plaintiff was issued a medical pass for compression stockings on December 13, 2023, for 365 days.

(D.E. 86, p. 242-43).

b. Heat -related medical history

During Plaintiff's intake screening on June 22, 2021, and physical examination two days

later, Plaintiff's potential heat stress factors were identified as: (1) cardiovascular hypertension;

(2) diabetes; and (2) the antihypertensive drug amlodipine/Norvasc. (D.E. 86, p. 33, 60). Dr.

Adams states that Plaintiff's mental health status was not considered a risk factor for heat illness

because he was not taking any mental health medications linked to heat stress, he was not

exhibiting psychomotor agitation, and he was fully aware of the symptoms and risks of heat stress.

Id. at 34, Likewise, according to Dr. Adams, Plaintiff's history of seizures did not place him at an

increased risk of heat sensitivity because he had not had a seizure in at least three years and was

not on any antiseizure medication. Id.

During the summer of 2022, Plaintiff submitted multiple SCRs complaining that he was

not receiving appropriate accommodations (e.g., air-conditioned housing, respite, ice water,

frequent showers) and medical treatment to properly address increased heat stress caused by his

diabetes, hypertension, and mental illness, (D.E. 86, p. 34). Dr. Adams states that Plaintiff

repeatedly claimed: “(1) he had to constantly fight to stay hydrated; (2) was unable to sweat or

sweat ‘properly’; (3) was unable to stand, walk, or lift without feeling chest pain; (4) was fatigued; .

(5) felt like he would lose coordination and fall over; (6) felt dizzy; (7) was unable to concentrate,

think, or read; (8) was having heat cramps; (9) was having difficulty breathing and could not catch

his breath; (10) was suffering lightheadedness and heart palpitations; and (11) was unable to

thermoregulate.” Id. Specifically, during this time period, Plaintiff submitted the following SCRs

and received the following medical attention for heat-related complaints:

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e May 9, 2022 — Plaintiff submitted several SCRs in which he asked, in part, that

security staff be informed he required respite from heat and that security be notified

to change his housing assignment due to his medical “excessive heat” restrictions.

(D.E. 86, p. 14, 534, 536). Clinical notes reflect that when he was offered an EKG

and blood work to address his complaints of chest pains made worse by the heat,

Plaintiff refused and wanted to see the doctor and not the nurse. Id. at 539, Clinical

notes further show that Plaintiff was not in acute distress and that his vital signs

were normal. Jd.

e May 12, 2022 — Plaintiff submitted two SCRs in which he requested respite and for

security to change his housing assignment due to his medical heat restrictions. Jd.

at 15, 564-65. Plaintiff was seen that day by a nurse practitioner. Id. at 15, 573.

Clinical notes reflect that Plaintiff complained of chest pain and shortness of breath

due to the heat, Id. at 569. After noting that Plaintiff's vital signs were normal, the

nurse practitioner ordered blood work for Plaintiff as well as a diabetic diet. Jd. at

15, 571.

e = May 15, 2022 — Plaintiff is seen cell-side by a nurse due to his various complaints

of heat intolerance. Id. at 15, 575. Plaintiff, however, reported no current

complaints of chest pain. Jd. at 575. Clinical notes reflect that Plaintiff was not in

active or acute distress, that his vital signs were within normal limits, and that his

respirations were equal and unlabored. Id.

© = May 16, 2022 — Plaintiff submitted a SCR reporting that he has complications from

excessive heat including shortness of breath, tight chest, dizziness, unable to sweat,

palpitations, and heat cramps. Id. at 16, 585. The nurse screening Plaintiff's SCR

notes that Plaintiff had been seen for an evaluation the previous day. Id.

© = May 30, 2022 — Plaintiff submitted a SCR complaining that he was unable to sweat

properly due to the excessive heat conditions couple with his diabetes, that he was

unable to stand walk, or lift without feeling chest pain, that he was having trouble

sleeping in the heat, that the heat is aggravating his hypertension, and that he is

experiencing palpitations and lightheadedness. Id. at 17. Clinical notes reflect that

Plaintiff's vital signs were within normal limits, that Plaintiff denied any current

chest pain with the examining nurse, that he asked to see a doctor and not the nurse,

and that he refused to cooperate with the nurse by refusing to answer questions. Id.

at 612.

° June 2, 2022 — Plaintiff submitted a SCR in the morning in which he complained

that the excessive heat was aggravating his pre-existing medical conditions. Jd. at

17, 622. Plaintiff further complained that he could not hydrate, that his vision was

blurry, that he was unable to sweat properly due to his diabetes, that he was unable

to stand without feeling chest pain and fatigue, and that he was dizzy and having

trouble concentrating, thinking, or reading. Jd. Clinical notes reflect that Plaintiff's

vital signs were within normal limits, that he was not suffering from any of the

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symptoms stated in his SCR, that he was denied respite by security, and that he

wanted to see the medical provider for his symptoms. Id. at 624.

° June 5, 2022 — Plaintiff is seen by a nurse for prior complaints in a SCR related to

excessive heat conditions and diabetes. Jd. at 18, 630. Plaintiff further states that

“he is supposed to be heat restricted and not on the building that he is on.” Id. at

630. He asks to be moved to a cooler environment. Jd. Clinical notes reflect that

Plaintiff walked into medical with a strong and steady gait and that he was not

currently suffering from the symptoms mentioned in his SCR. Id.

° June 6, 2022 — Plaintiff submitted two SCRs, in which he: (1) reiterated his prior

heat-related concerns and symptoms; and (2) states he is unable to take advantage

of respite available to him due to his disabilities. Jd. at 18, 634-35. Plaintiff stated

in one of the SCRs that the respite area is a small holding cell and that he is unable

to sit, stand, bend, and stoop without pain for even a short amount of time due to

his lateral pelvic tilt. Jd. at 634. Dr. Kwarteng answered Plaintiff's SCRs in writing

that Plaintiff has been assigned the appropriate medical restrictions which consist

of: (1) lower bunk, ground floor housing; (2) sedentary work only; (3) no climbing;

(4) no work in direct sunlight; (5) no temperature extremes, (6) no humidity

extremes; and (7) no work around machines with moving parts. Id. at 18, 42-43,

231-33, 634-35.

° June 11, 2022 — Plaintiff submitted three SRCs in which Plaintiff complained that

he was experiencing extreme heat-related symptoms such as chest pains, shortness

of breath, and heat cramps and that security was not addressing his concerns by

providing multiple daily cold showers and sufficient cold drinking water. Jd. at 19,

640-42. Clinical notes that day reflect that Plaintiff's vital signs were within normal

limits, that he had no symptoms during his examination, that he was in no acute

distress, and that his respirations were equal and unlabored. Jd. at 644. The

examining nurse instructed Plaintiff “to consult with security regarding respite due

to current restrictions in place for heat related complaint and medical has no

designation for location of respite.” Jd.

° June 12, 2022 — Plaintiff is examined in the medical department by two nurses

where he is not found to be in acute distress and that his vital signs were within

normal limits. Jd. at 19, 647. Clinical notes reflect that Plaintiff denied any chest

pain, any shortness of breath. Jd. Plaintiff at first agreed to wanting respite but then

indicates he wanted to return to his cell. Jd.

e June 13, 2022 — Plaintiff submits a SCR on June 13, 2022, complaining in part of

heat-related complications and mandating he be seen by a medical provider. Id. at

20, 656.

e June 16, 2022 — Plaintiff is seen in medical on June 16, 2022 regarding his heat-

related complaints. (D.E. 86, p. 20); (D.E. 86-1, p. 3). Clinical notes reflect that: (1)

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Plaintiff's vital signs were within normal limits; (2) his respirations were equal and

unlabored; (3) Plaintiff voiced no current complaint, distress, or shortness of breath;

and (4) he did not seek respite at that moment but wanted respite the next morning.

Id.

e June 18, 2022 — Following the submission of several SCRs, Plaintiff is seen by a

nurse in medical regarding multiple issue including heat-related complaints for

shortness of breath, chest pain, and palpitations. (D.E. 86, p. 20); (D.E. 86-1, p.

15). Clinical notes reflect Plaintiffs verbal reply that he did not want to see the

nurse. (D.E. 86-1, p. 15). Clinical notes further reflect that Plaintiff refused having

his vital signs taken, that he was in no acute distress, that his respirations were equal

and unlabored, and that he refused to answer questions about respite. Id.

e June 21, 2022 — Plaintiff submits an SCR requesting Dr. Kwarteng to meet his “heat

restrictions” needs and for Warden Sanchez to transfer Plaintiff to another unit

which can meet his “heat restriction” needs. (D.E. 86, p. 21); (D.E. 86-1, p. 22). □

nurse meets Plaintiff cell-side to address Plaintiffs requests and complaints in his

SCR of chest pain, circulatory issues, and shortness of breath. (D.E. 86-1, p. 24).

Clinical notes reflect that Plaintiff's vital signs were within normal limits, that he

was in no acute distress, and that his respirations were equal and unlabored. Id. The

nurse referred Plaintiff to a medical provider for evaluation of his restrictions. Jd.

e June 23, 2022 — Plaintiff submitted several SCRs to Dr. Kwarteng in which he

requested review of his medical restrictions and passes, including those related to

heat restrictions. (D.E. 86-1, p. 30-33). Clinical notes reflect that Plaintiff is seen

by a nurse on June 23, 2022, who reports that Plaintiff had no current complaints,

that Plaintiff requested to go to respite after he eats, that he was in no acute distress,

and that his respirations were equal and unlabored. Id. at 35. Dr. Kwarteng

responded in writing to one of Plaintiff's June 23, 2022 SCRs, explaining: “You

have all the medical restrictions based on your medical and other conditions. The

medical department does not assign inmates to specific housing areas.” (D.E. 86, p.

43); (DE. 86-1, p. 32).

° June 26, 2022 — Plaintiff submitted two SCRs complaining that the heat in the

housing area prevents him from exercising and accessing the medical department

for insulin injections. (D.E. 86, p. 22); (D.E. 86-1, p. 47-48). A nurse responds in

writing to one of the SCRs, explaining: “You are provided ... insulin

management[,] and current heat restrictions are applicable for respite. Medical is

provided 24/7 days. Request respite with security or even during insulin.” (D.E. 86-

1, p. 48). A nurse responded to the other SCR, explaining “current heat restrictions

are appropriate and refer to security for respite.” Jd. at 47.

e July 6, 2022 — Plaintiff submitted a SCR directed to Dr. Kwarteng, listing

symptoms related to heat stress due to the extreme temperatures in his housing area.

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(D.E. 86, p. 23, 43). Dr. Kwarteng responds in writing: “You have all the heat

restrictions. You can always ask for respite.” Jd.

e —_ July 12, 2022 — Plaintiff is seen by a nurse in the 8 Building for complaints of heat-

related symptoms which exacerbated his medical conditions. (D.E. 86, p. 24); (D.E.

86-1, p. 82). Clinical notes reflect that Plaintiff was in no acute distress and that his

care was terminated due to Plaintiff's aggressive behavior. (D.E. 86-1, p. 82).

e July 13, 2022 — Plaintiff submitted a SCR complaining of his inability to exercise

in the heat. (D.E. 86, p. 24); (DE. 86-1, p. 90). The nurse reviewing the SCR

advises Plaintiff that exercise in the morning can be dangerous, that Plaintiff should

try to exercise either in the early morning or late afternoon/evening, and that he

should stay well hydrated. (D.E. 86, p. 24).

e July 14, 2022 — Plaintiff submitted two SCRs complaining that he is not receiving

cold water and/or cold showers. (D.E. 86, p. 24, 43); (D.E. 86-1, p. 97-98). Nursing

staff responded to one of the SCRs, explaining that Plaintiff's complaints involve

security issues which should be addressed with security. (D.E. 86-1, p. 97). The

second SCR was forwarded to Dr. Kwarteng, who responded: “Medical Dep’t does

not control ‘respite.’ Please direct your concerns to TDCJ.” Id. at 98.

° July 18, 2022 — Plaintiff submitted a SCR to medical and directed to Dr. Kwarteng,

complaining of excessive heat in the living areas, numerous heat-related symptoms,

and exacerbation of his chronic diseases. (D.E. 86, p. 24); (D.E. 86-1, p. 107).

Nursing staff reviewed Plaintiffs SCR, writing that Plaintiff had refused to be

evaluated. Jd. Clinical notes reflect that Plaintiff was seen in medical by the nurse

for his heat-related complaints. (D.E. 86-1, p. 105). These notes reflect that Plaintiff

was in no acute distress and that Plaintiff walked away with security after refusing

treatment and to be seen further. Id

e August 2, 2022 — Plaintiff submitted a SCR to medical and directed to Dr.

Kwarteng, complaining of excessive heat in the living areas, numerous heat-related

symptoms, and exacerbation of his chronic diseases. (D.E. 86, p. 25, 43); (D.E. 86-

1, p. 151). Dr. Kwarteng responds in writing as follows: “1. You have heat

restrictions[.] 2. You can also ask to be taken out for respite[.] 3. Stay hydrated|.]”

(D.E. 86-1, p. 151).

In reviewing Plaintiff's medical records related to his 2022 summer SCRs, Dr. Adams □

found that Plaintiff had denied heat-related symptoms at the time he was examined in medical or

cell-side in his housing area and did not exhibit signs of heat-related illness. (D.E. 86, p. 34). She

explains:

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He was always alert and oriented and never appeared in acute distress or short of

breath. There are many documented observations that his gait was strong and steady

as he ambulated into the medical department for his FSBS/insulin clinics or other

appointments.

Id.

Correctional Managed Health Care Policy D-27.2 (“CMHC D-27.2”) defines three heat

stress illnesses resulting from overexposure to, or overexertion in, excess temperatures: (1) heat

cramps; (2) heat exhaustion; and (3) heat stroke. (D.E. 86-1, p. 399). Heat exhaustion “usually

develops following strenuous exercise, in muscles that have been subjected to extensive work. Jd.

Pain from heat cramps is “brief, intermittent and crampy, and may be quite severe.” Id. CMHC D-

27.2 further notes that “[hJeat cramps usually occur after several hours of work, and may occur

even at low ambient temperatures.” Id. Dr. Adams noted that Plaintiff was not required to work

and he never exhibited signs of muscle spasms. Id. (D.E. 86, p. 35).

Heat exhaustion, which is the most common type of heat stress, is “caused by depletion of

water and salt.” (D.E. 86-1, p. 399), CMHC D-27-2 further provides that:

Symptoms include weakness, anxiety, fatigue, thirst, dizziness, headache, nausea

and urge to defecate. Signs include profuse perspiration, rapid pulse, incoordination

and confusion. Heat prostration may lead to heat syncope, a sudden onset of

collapse that is usually of brief duration. During heat syncope the patient appears

ashen gray and skin is cool and clammy. Failure to treat heat exhaustion may result

in progression to heat stroke.

Id. Upon reviewing Plaintiff's medical records, Dr. Adams concluded that:

e based on the volume and content of Plaintiff's SCRs. His claims of being unable to

think, concentrate, or read to be highly improbable;

e Plaintiff never complained of excessive or profuse sweating, and there is no

documentation of Plaintiff “exhibiting profuse sweating consistent with heat

exhaustion or absent sweating indicative of more serious illness”,

° there is medical documentation that Plaintiff exhibited “a rapid pulse,

incoordination or confusion”; and

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e Plaintiff did not complain in his SCRs of headache, vomiting, profound weakness,

or urge to defecate.

(D.E. 86, p. 35-36).

Finally, heat stroke constitutes a medical emergency. (D.E. 86-1, p. 399) CMHC

D-27.2 provides that:

While it may be preceded by signs of heat exhaustion, the onset is often sudden. In

heat stroke the body has lost its ability to dissipate heat and maintain a normal body

temperature. Body temperature is often elevated over 106° F. Exertional heat stroke

occurs in young, healthy people who maintain inadequate fluid intake during

exertion. Signs include headache, chills, gooseflesh, weakness, incoordination,

nausea and vomiting, progressing to unconsciousness. Classical heat stroke is seen

in the elderly, those with predisposing medical conditions such as congestive heart

failure, diabetes and alcoholism, and those on medications which cause fluid

depletion, interfere with sweating or interfere with the body’s thermoregulatory

system. Classical heat stroke has few premonitory signs. Collapse may be among

the first symptoms. Skin is hot and dry, and pulse is rapid and weak. Shock and

death may occur in either type of heat stroke.

Id. Dr. Adams found no medical documentation that Plaintiff ever lost the ability to thermoregulate

ot that Plaintiff even suffered a heat-related illness. (D.E. 86, p. 36).

In a Step 1 grievance dated April 17, 2023, (Grievance No. 2023093591), Plaintiff

complained that he was heat-restricted due to his disabilities and pre-existing medical conditions.

(D.E. 93-15, p. 4-5). Plaintiff requested respite in a way to allow him to elevate his leg during

respite, including a chair that would properly support his body during respite. Id. at 4. Plaintiff

complained that the respite area did not allow him the ability to elevate his leg and lacked restroom

facilities. Id. After citing no wellness checks, Plaintiff further asked to be provided with an air-

conditioned cell or be transferred to a facility that can meet his heat-restricted needs. Jd.

In a response dated June 5, 2023, the reviewing officer found that (1) medical cannot issue

passes for things like chairs to elevate legs or for respite; (2) Plaintiff's heat restrictions are specific

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to work; (3) Plaintiff does not have heat restrictions that would qualify him for a transfer off the

unit for a medical condition; (4) Plaintiff was seen by a unit provider on the day the grievance was

filed and determined to have no urgent or emergent complaints; and (5) on May 16, 2023, Plaintiff

was seen by the medical director for the chronic care clinic where it was determined Plaintiff had

no urgent or emergent complaints, Jd. On July 5, 2023, Plaintiffs Step 2 grievance (Grievance No.

2023093591) was denied on the basis that: (1) Plaintiff did not meet the criteria for air-conditioned

housing as his Heat Sensitivity Index was zero; (2) Plaintiffs heat restrictions are work restrictions

and not life restrictions; and (3) the medical department has no purview over security issues. Id.

at 7.

Dr. Adams confirmed that UTMB staff, including Dr. Kwarteng “have no authority to

determine custody levels or the location of respite areas.” (D.E. 86, p. 46). Medical records further

show that Plaintiff submitted one SCR during the summer of 2023 as follows:

August 17, 2023 — Plaintiff submitted a SCR, complaining that his

. repeated requests to be escorted to respite in air-conditioned

environment have been denied due to understaffing and that he

continues to suffer various heat-related symptoms. (D.E. 86-1, p.

534). Plaintiff requested to be placed on medications to control

symptoms during excessive heat hours while the unit is

understaffed. Jd. Dr. Kwarteng responded in writing: “There are no

known medications to prescribe to be used only during ‘excessive

heat hours.’ I am also not aware of any specified ‘excessive heat

hours.’ Please avail yourself of the TDCJ heat mitigation measures

as needed.” Id.

In finding Dr. Kwarteng’s advice to be correct, Dr. Adams explains:

Prevention and treatment for any heat-related illness is to reduce

activity, cool the body, and replace lost fluids (i.e. hydrate).

Unnecessary medications should be avoided due to the risk of drug-

drug interactions and the possibility of compounding the risk for a

serious heat-related illness. Necessary medications should be

continued unless there is a sound clinical reason to change a

patient’s treatment plan. While the drug amlodipine/Norvasc used

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to treat [Plaintiffs] hypertension is considered a potential risk factor

for heat illness, it is one of the safer antihypertensive medications in

that it is less likely than diuretics to cause dehydration and

electrolyte imbalances, and less likely than beta blockers to reduce

cardiac output, blood flow to the skin, and the ability to sweat

efficiently.

(D.E. 86, p. 47).

C. Section 1983 Eighth Amendment Deliberate Indifference Claims

i, Standing

Defendants argue that Plaintiff lacks standing to bring his deliberate indifference claims

against Warden Amonett, Warden Holmes, Warden Sanchez, and Dr, Kwarteng “because there is

no evidence that he suffered an actual injury, much less that the injury was caused by” any of these

defendants. (D.E. 84, p. 21).

The “irreducible constitutional minimum of standing” under Article III requires the

following: (1) a showing of an “injury in fact”; (2) a causal connection between the injury and the

alleged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Morgan v. Huntington Ingalls, Inc.,

879 F.3d 602, 606 (5th Cir. 2018).

The “injury in fact” must be “concrete and particularized” and must also be “actual or

imminent” rather than “conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citation modified).

The party invoking federal jurisdiction bears the burden to establish standing. Jd. at 561. Because

“Article III standing implicates the federal judiciary's power to adjudicate disputes,” it “can be

neither waived nor assumed.” Morgan, 879 F.3d at 606 (citation modified); see In re Deepwater

Horizon, 857 F.3d 246, 253 n. 34 (Sth Cir. 2017) (explaining standing cannot be inferred, but rather

“affirmatively appear in the record”).

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Here, Plaintiff has provided competent summary judgment evidence through his statements

that he suffered numerous and specific heat-related symptoms due to the failure of Wardens

Amonett, Holmes, and Sanchez to put into place certain policies related to access to space on

regpite visits, wellness checks, lack of access to respite, and the conditions of the 3 x 3-foot holding

cell when he was granted access to respite. (D.E. 10, p. 6-7, 12-13, 17). The competent summary

judgment evidence further reflects that, in the summer of 2022, Plaintiffs submitted numerous

sick call requests to the attention of Dr. Kwarteng in which he complained about the excessive

heat conditions and reported numerous heat-related symptoms. (D.E. 10, p. 14, 18); (D.E. 86, p.

14-25, 43). Plaintiff then attests that, while responding to five SCRs in writing, Dr. Kwarteng

never performed any examination on Plaintiff or provided any treatments addressing his heat-

related symptoms. (D.E. 10, p. 15-16).

On the issue of standing, the Court finds that Plaintiff has successfully alleged actual,

concrete injuries in fact caused by the excessive heat conditions at the McConnell Unit, the alleged

policies implemented by Wardens Amonett, Holmes, and Sanchez, and the actions or inactions of

Dr. Kwarteng. Cf Taylor v. Collier, No. 3:17-CV-358, 2019 WL 1383021, at *5 (S.D. Tex. Mar.

27, 2019) (Hanks, J.) (concluding that defendants were entitled to summary judgment on the issue

of standing where inmate failed to allege that he has suffered any symptoms because of the heat at

the Terrell Unit, that he took medications that increased his heat sensitivity, or that the specific

medical episode was heat-related). Accordingly, Defendants are not entitled to summary judgment

on the issue of standing.

ii. Qualified Immunity

Defendants contend that they are entitled to qualified immunity with respect to Plaintiffs

Eighth Amendment claims against them in their respective individual capacities. (D.E. 84, p. 28—

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30).

The defense of qualified immunity protects government officials from personal liability for

monetary damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

USS. 800, 818 (1982). In other words, an official is liable in their individual capacity only if the

official’s particular conduct: (1) “violated a statutory or constitutional right,” and (2) “the right

was clearly established at the time of the violation,” such that “[t]he contours of the right are

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Ford v. Anderson Cnty., Tex., 102 F.4th 292, 307 (Sth Cir. 2024) (citation modified).

Importantly, “a good-faith assertion of qualified immunity alters the usual summary

judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.”

Ratliff v. Aransas Cnty., Tex., 948 F.3d 281, 287 (Sth Cir. 2020) (citation modified). Accordingly,

once a defendant invokes qualified immunity, “the plaintiff must rebut it by establishing (1) that

the [defendant] violated a federal statutory or constitutional right and (2) that the unlawfulness of

the conduct was ‘clearly established at the time.” Rich v. Palko, 920 F.3d 288, 294 (Sth Cir. 2019)

(quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)). “At the summary-judgment stage,

[a plaintiff] may not rest on mere allegations or unsubstantiated assertions but must point to

specific evidence in the record demonstrating a material fact issue concerning each element of his

claim.” Mitchell v. Mills, 895 F.3d 365, 370 (Sth Cir. 2018).

Because Defendants have asserted their right to qualified immunity, Plaintiff has the

burden to “rebut the defense by establishing that [their] allegedly wrongful conduct violated clearly

established law and that genuine issues of material fact exist regarding the reasonableness of [their]

conduct.” Gates v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d 404, 409 (Sth Cir, 2008). As

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discussed above, a government official’s conduct violates clearly established law when, at the time

of the challenged conduct, “the contours of the right are sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Ford, 102 F.4th at 307 (citation

modified). A binding court case directly on point is not required, but “existing precedent must have

placed the statutory or constitutional question beyond debate.” /d.; see also Malley v. Briggs, 475

U.S. 335, 341 (1986).

“Abstract or general statements of legal principle untethered to analogous or near-

analogous facts are not sufficient to establish a right ‘clearly’ in a given context; rather the inquiry

must focus on whether a right is clearly established as to the specific facts of the case.” Vincent v.

City of Sulphur, 805 F.3d 543, 547 (Sth Cir. 2015) (citing Brosseau v. Haugen, 543 US. 194, 198

(2004)). Absent controlling authority, there must be a “robust ‘consensus of cases of persuasive

authority.’” Ashcroft, 563 U.S. at 741 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). The

controlling decision or consensus must be with regard to the official’s “particular conduct,”

described with specificity. Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1166 (Sth Cir. 2021)

(quoting Mullenix v. Luna, 577 US. 7, 12 (2015) (per curiam)). The second step of the qualified

immunity inquiry is judged against the backdrop of the law at the time of the conduct. Morgan v.

Chapman, 629 F. Supp.3d 616, 630 (S.D. Tex. 2022) (Tipton, J.) (citing Kisela v. Hughes, 584

U.S. 100, 104 (2018).

Courts have discretion to decide the order in which to consider the two-prong inquiry when

determining whether qualified immunity is watranted. See Pearson v. Callahan, 555 U.S. 223, 236

(2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.”); Cleveland

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y, Bell, 938 F.3d 672, 676 (Sth Cir. 2019) (“If the plaintiff fails at either step, the federal court can

grant qualified immunity by addressing either step or both of them.”).

Section 1983 provides a vehicle for redressing the violation of federal law by those acting

under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail on a § 1983

claim, the plaintiff must prove that a person acting under the color of state law deprived him of a

right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; West v. Atkins,

487 U.S. 42, 48 (1988). A defendant acts under color of state law if he misuses or abuses official

power and if there is a nexus between the victim, the improper conduct, and the defendant’s

performance of official duties. 7: ownsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).

“Personal involvement is an essential element of a civil rights cause of action.” Thompson

v. Steele, 709 F.2d 381, 382 (Sth Cir. 1983). There is no vicarious or respondeat superior liability

of supervisors under § 1983. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987); see also

Carnaby v. City of Houston, 636 F.3d 183, 189 (Sth Cir, 2011) (explaining the acts of subordinates

do not trigger individual § 1983 liability for supervisory officials). “Each Government official, his

or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677.

A plaintiff “must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Jd. at 676.

Thus, a supervisory official may be held liable only if “(1) he affirmatively participates in

the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies

that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (Sth Cir. 2011).

Supervisory liability without overt personal participation in the offensive act thus can lie only if

the supervisory official “implement[s] a policy so deficient that the policy itself is a repudiation of

constitutional rights and is the moving force behind the constitutional violation.” Thompkins, 828

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F.2d at 304 (internal quotations omitted). “A policy is normally an official statement, ordinance,

or regulation, but in certain circumstances a persistent, widespread practice that is so commonplace

as to constitute a custom can also be treated as policy.” McNeil v. Caruso, No. 17-01688, 2019

WL 1435831, at *2 (M.D. La. Mar. 28, 2019) (Jackson, J.) (citing Piotrowski v. City of Houston,

237 F.3d 567, 579 (Sth Cir. 2001)). .

The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend, VIII.

“The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane

ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under

which he is confined are subject to scrutiny under the Eighth Amendment.” Harper v. Showers,

174 F.3d 716, 719 (Sth Cir. 1999) (quoting Woods v. Edwards, 51 F.3d 577, 581 (Sth Cir. 1995)

(per curiam) (citation modified)), An Eighth Amendment violation occurs when a prison official

acts with deliberate indifference to an inmate’s health and safety. Farmer v. Brennan, 511 U.S.

825, 834 (1994).

“Deliberate indifference is an extremely high standard to meet.” Domino v. Tex. Dep’t of

Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001). The test for deliberate indifference has both an

objective and subjective prong. Jd. at 839. Under the objective prong, the inmate must first prove

“an objective exposure to a substantial risk of harm.” Valentine v. Collier, 993 F.3d 270, 281

(Sth Cir. 2021). “Inmates need not show that death or serious injury has already occurred to prove

that unconstitutional conditions exist under the objective element . . . rather, they need only show

that there is a substantial risk of serious harm.” Garrett v. Lumpkin, 96 F 4th 896, 900-01 (th Cir.

2024) (citation modified). Under the objective prong, therefore, Plaintiff need not show actual

harm to his health based on the purported excessive heat conditions in his cell. Jd. at 901.

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To prove the subjective prong of the deliberate indifference test, an inmate must establish

that the prison official “had subjective knowledge that the inmate faced a substantial risk of harm

[to the inmate’s health and safety] and .. . [consciously] disregarded the risk.” Valentine, 993 F.3d

at 281; see also Lawson v. Dall. Cnty., 286 F.3d 257, 262 (Sth Cir. 2002). A prison official’s

knowledge of a substantial risk may be inferred if the risk was obvious. Easter v. Powell, 467 F.3d

459, 463 (Sth Cir. 2006). The Fifth Circuit has “consistently recognized . . . that ‘deliberate

indifference cannot be inferred merely from a negligent or even a grossly negligent response to a

substantial risk of serious harm.’” Dyer v. Houston, 964 F.3d 374, 381 (Sth Cir. 2020) (quoting

Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 458-59 (5th Cir. 2001)); see also Aguirre v. City

of San Antonio, 995 F.3d 395, 420 (Sth Cir. 2021) (“Negligence or even gross negligence is not

enough, the officials must have actual knowledge of the substantial risk”). The Supreme Court

further explains that “an official’s failure to alleviate a significant risk that he should have

perceived but did not” falls short of constituting deliberate indifference. Farmer, 511 U.S. at 838.

Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to

the conscience of humankind. McCormick v. Stalder, 105 F.3d 1059, 1061 (Sth Cir. 1997)

(citations omitted).

a. Plaintiff's Claims against Wardens Amonett, Holmes and Sanchez

(Policies Put in Place or Continued)

Extreme temperatures in prison can violate the Eighth Amendment. Yates v. Collier,

868 F.3d 354, 360 (Sth Cir. 2017); Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015); Gates v.

Cook, 376 F.3d 323, 333 (Sth Cir. 2004). The Fifth Circuit has held that inmates have a right under

the Eighth Amendment not to be subjected to extreme temperatures without adequate remedial

measures. See Hinojosa v. Livingston, 807 F.3d 657, 670 (Sth Cir. 2015) (citing Gates, 376 F.3d

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at 339-40). “[W]e have repeatedly recognized the serious risk of harm that excessive heat can pose

in the prison context absent adequate mitigating measures, and we have consistently found

evidence sufficient in these cases to support an Eighth Amendment violation, even when certain

mitigating measures were available.” Yates, 868 F.3d at 361; see also Ball, 792 F.3d at 596

(affirming “district court’s conclusion that housing these prisoners in very hot cells without

sufficient access to heat-relief measures, while knowing that each suffers from conditions that

render him extremely vulnerable to serious heat-related injury, violates the Eighth Amendment”).

The Court has retained Plaintiff's Eighth Amendment deliberate indifference claims

against Wardens Amonett, Holmes, and Sanchez in their individual capacities for putting into place

or continuing policies: (1) limiting wellness checks; (2) providing inadequate space for inmates

like Plaintiff requesting air-conditioned respite; (3) inadequately staffing a sufficient number of

escorts for Plaintiff to access respite upon request (4) placing G5 inmates like Plaintiff in a

restrictive location (3 x 3-foot holding cell ) for respite; and (5) denying respite for G5 inmates

like Plaintiff altogether. (D.E. 16, pp. 71-72; D.E. 46, pp. 1-3). To establish an Eighth Amendment

violation in this case, Plaintiff must show that the excessive heat conditions at the McConnell Unit

posed an unreasonable risk of harm to him (objective prong) and that Defendants acted with

deliberate indifference to the risk posed. Hinojosa, 807 F.3d at 669; see also Webb v. Livingston,

618 F. App’x 201, 208-09 (5th Cir. 2015) (affirming holding that inmates with heat-sensitive

medical conditions who were housed in cells where the temperature exceeded 100 degrees had

asserted facts that, if proven, would overcome qualified immunity).

Before analyzing whether Plaintiff can satisfy the objective and subj ective components of

his deliberate indifference claims against the former senior wardens, the Court will consider the

impact of a recent decision from the Western District of Texas. In 71 iede v. Collier, 796 F. Supp.3d

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275 (W.D. Tex. 2025) (Pitman, J .), the court considered a motion for preliminary injunction filed

by Texas inmate Bernhardt Tiede (“Tiede”) and various supporting organizational groups. Id. at

281. Tiede alleged in his original complaint that (1) he suffered from multiple health conditions,

including diabetes, hypertension, and COPD; (2) while housed in a cell without air conditioning,

“he suffered stroke symptoms that were exacerbated by heat and necessitated transportation to an

emergency room”; and (3) “fans and periodic deliveries of ice water and cold cloths were

insufficient to provide relief from temperatures that exceed 110 degrees Fahrenheit in cells.” Id.

After an extensive evidentiary hearing was conducted, the court found in pertinent part:

° despite being 65 years old and having multiple medical conditions making

him vulnerable to the heat, Tiede was housed in an unair-conditioned cell

in which temperatures regularly reached above 100 degrees during the

summer of 2023;

e “Tdlespite his various heat-sensitive co-morbidities,” Tiede was not given a

heat score that qualified him for air-conditioned housing;

e heat is considered to be one of the leading weather-related killers in the

United States, resulting in hundreds of fatalities each year;

° Texas summer temperatures have trended warmet with increasing heat

indexes;

° “inmate housing areas in Texas’s unair-conditioned prisons are

unreasonably dangerous due to the extreme heat during the summer

months”;

e at least 23 individuals have died in TDCJ facilities between 1998 and 2012

from heat-related causes;

e TDCJ’s heat score system is arbitrary, inadequate, and ineffective;

° respite areas available to inmates are inadequate and ineffective based on

the temporary nature of the respite, the lack of sufficient access due to

understaffing, and an inmate’s particular security level;

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e cold showers fail to protect against the health risks of constant extreme heat

as they are often unavailable, denied by staff, and work only during the time

an inmate is wet; and

° access to cold water is often inconsistent and does not serve to reduce the

long-term effects of excessive heat.

Id, at 288-314.

Based on the evidence presented, the court determined that plaintiffs would likely succeed

on the merits of their Eighth Amendment claims. Jd. at 324. The court concluded that the

organizational plaintiffs had shown “that extreme heat in TDCJ’s uncooled prisons constitutes a

well-established substantial risk of serious harm that constitutes cruel and unusual punishment.”

Id. at 325-27. In considering the evidence of numerous heat-related deaths and illnesses occurring

among the inmates and staff in the summers of 2022 and 2023, the court determined:

Notably, these deaths and heat-related illnesses and injuries

occurred during a summer when, as [TDCJ Director] Collier’s

witnesses testified and TDCJ documents indicate, the prisons were

implementing all of TDCJ’s heat mitigation measures, including

their heat score system, access to cooled respite areas, distribution

of water and ice, cool showers, and fans. TDCJ’s mitigation

measures are ineffective because of the temporary nature of the

relief. And in some instances, such as using fans when the

temperature reaches a certain threshold, the mitigation measures

actually increase the risk of heat-related illness, injury, or death.

And even if the mitigation measures were effective, inmates have

severely limited access to these resources due to understaffing.

Based on this evidence, Plaintiffs have shown that every TDCJ

inmate in an unair-conditioned cell faces a substantial risk of death

or serious bodily injury from the extreme heat, absent the

installation of air conditioning.

Id. at 326-27.

The court noted that Tiede was substantially likely to prove his Eighth Amendment claim

due to his enhanced sensitivity to extreme heat. Id, at 327. With regard to the subjective standard

of the deliberate indifference test, the court concluded that the plaintiffs demonstrated it was likely

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that Collier knew inmates faced serious harm from the extreme heat in Texas’s unair-conditioned.

prisons, that the risk was obvious and well documented, and that he could not rely on heat-

mitigation efforts known to be inadequate to reduce the risk or otherwise assure the well-being of

inmates and prison officials.’ Jd. at 328-32.

The Court now turns to consider whether Plaintiff can satisfy the obj ective prong of

deliberate indifference by showing that the summer heat conditions in 2022 and 2023 exposed him

to a substantial risk of serious harm. Defendants contend that, even assuming he was denied respite

ot wellness checks on occasion, no competent summary judgment evidence has been presented to

show that Plaintiff's conditions of confinement posed an unreasonable risk of serious damage to

his future health. (D.E. 84, p. 25).

Plaintiff responds that he suffers from conditions (obesity, diabetes, cardiovascular disease

such as hypertension and arteriosclerosis, and psychiatric conditions) rendering him susceptible to

serious heat-related conditions. (D.E. 93, p. 35-38). Plaintiff contends further that certain

medications he takes for his condition also impede his ability to thermoregulate, thereby increasing

the likelihood of heat-related illness. Jd. at 38.

The competent summary judgment evidence shows that heat mitigation measures set forth

under AD-10.64 require in pertinent part:

offenders are entitled to request access to a respite area 24 hours per day, seven days per

week;

9 After finding that TDCJ inmates housed in unair-conditioned housing were at risk of experiencing

irreparable harm, the court nevertheless determined that it could not grant the relief requested of temporary

air conditioning for TDCJ inmates because the granting of such relief would alter the “status quo to make

it ess feasible to attain a permanent injunction after this case proceeds to a bench trial and final judgment.”

Tiede, 796 F.Supp.3d at 334. The court then emphasized its “anticipation that [p]laintiffs will ultimately

succeed on the merits” and warned Executive Director Collier “that it foresees Plaintiffs being entitled to

permanent relief in the form of expeditious installation of permanent air conditioning in all TDCJ facilities.”

Id. at 336.

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© offenders are entitled to request access to a respite area even if they are not feeling ill and

are permitted to stay in respite for as long as necessary;

drinking water and cups must be available to every offender during period of excessive

heat with hydration encouraged;

inmates receiving a heat sensitivity score receive priority placement in a housing areas that

is air-conditioned;

© unit staff shall conduct wellness checks on those offenders who are on the Heat Restriction

List (applying to those offenders with restrictions related to physical activities,

transportation and work);

© unit staff shall immediately seek care for any and all offenders requesting medical care or

exhibiting signs of illness, regardless whether they are on the Heat Restriction List.

(D.E. 84-5, p. 3, 5, 7, 10-11). Defendants Wysocki, Amonett, Holmes, and Sanchez reference the

following general measures in effect under AD-10.64 at the McConnell Unit at all relevant times:

e inmates may request access to respite areas at any time and are allowed to stay in respite

for as long as necessary, all the while being provided cups, cold hydrating drinks, and

electrolyte packages;

e inmates are permitted to use the restroom and return to respite if necessary;

© no maximum time was set for how long inmates may stay on respite;

e all inmates, regardless of custody level, are permitted to bring items to respite ordered for

them by medical providers, such as compression stockings.

(DE. 84-1, p. 1-2); D.E. 84-2, p. 1-2); (DE. 84-3, p. 1-2); (DE. 84-4, p. 1-2). These senior

wardens each explained that one of their top priorities was to ensure that the respite requirements

of AD-10.64 was met. (D.E. 84-1, p. 2); (D.E. 84-2, p. 3); (D.E. 84-3, p. 2); (D.E. 84-4, p. 2).

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However, in response, Plaintiff has presented competent evidence to show that remedial

measures such as respite and wellness checks were either unavailable, denied to him, or otherwise

not provided to him as outlined in AD-10.64. As reflected in Plaintiffs statements, he was denied

or delayed access to air-conditioned respite on numerous occasions during the summer of 2022

and 2023 despite suffering from heat-related symptoms when he sought respite. (D.E. 10, p. 5, 17);

D.E. 10-1, p. 2-6). Plaintiff further states that, when placed in respite, he was required, as a G5

inmate, to sit in a small holding cell which exacerbated his left leg’s condition impacted both by

his physical issues and diabetes. (D.E. 6, p. 10); (D.E. 10, p. 7, 12). Plaintiff further states that,

despite his placement on the Heat Restriction List, McConnell officers did not perform wellness

checks as mandated or ensure that escorts were available at all times when Plaintiff requested

respite during the relevant time periods. (D.E. 10, p. 6~7).

The competent summary judgment evidence, as reflected in the objective medical records,

shows that Plaintiff, currently 52 years old, has a medical history of:

1) hypertension (HTN) diagnosed in 2002, 2) type 2 diabetes mellitus (DM II)

diagnosed in 2015, 3) hyperlipidemia (HLD), ie. elevated cholesterol,

triglycerides, and other blood lipids, 4) gastroesophageal reflux disease (GERD),

5) decreased visual acuity requiring reading glasses, 6) alcohol abuse, and 7) mental

illness with past diagnoses of major depression, PTSD (post-traumatic stress

disorder), and schizophrenia with auditory and visual hallucinations.

(D.E. 86, p. 2~3). The objective medical records further reflect that, following a motor vehicle

accident in 1996, Plaintiff suffered a traumatic brain injury resulting in a seizure disorder, a lower

left leg deformity, and chronic pain. Jd. at 3. Plaintiff's potential heat stress factors resulting from

these infirmities subsequently were identified as: (1) cardiovascular hypertension; (2) diabetes;

and (3) the antihypertensive drug amlodipine/Norvase. (D.E. 86, p. 33, 60).

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Plaintiffs statements further reflect that in the summers of 2022 and 2023, temperatures

exceeded 90 degrees from April through October on numerous occasions. (D.E. 93, p. 14). The

evidence shows that, while Plaintiff did not have a heat score at the McConnell Unit requiring him

to be transferred to an air-conditioned cell, he was given restrictions for no work in extreme heat,

humidity and sunlight. (D.E. 10, p. 2); (D.E. 86, p. 18, 42-43, 231-33, 634-35). Documentation

submitted as evidence by Plaintiff shows that Plaintiff was on the Heat Restriction List in June

2023. (D.E. 93-9, p. 2-7). Lastly, Plaintiffs statements and objective medical evidence do not

confirm that Plaintiff was issued compression stockings or was in possession of them to wear

during the summers of 2022 and 2023. (D.E. 93, p. 26-28); (D.E. 86, p. 242-43).

As discussed above, the test for establishing the objective component of deliberate

indifference does not require Plaintiff to show actual harm but instead show that there was a

substantial risk of serious harm due to the excessive heat conditions in the summers of 2022 and

2023. See Garrett, 96 F.4th at 900-01. Here, the evidence indicates that many heat-related

measures under AD-10.64 were implemented at the McConnell Unit during the summers of 2022

and 2023. On the other hand, competent summary judgment evidence suggests that certain heat-

related remedial measures were not afforded to Plaintiff, who suffers from medical conditions and

took at least one medication that made him vulnerable to excessive summer heat conditions.

Accordingly, genuine issues of material fact preclude summary judgment for either Plaintiff or

Defendants as to whether Plaintiff can show an objective exposure to an unreasonable risk of

serious harm, especially in light of evidence that Plaintiff had a heightened level of susceptibility

or sensitivity to excessive heat conditions.

The Court now turns to whether Plaintiff can establish the subjective prong—whether

Wardens Amonett, Holmes, and Sanchez acted with deliberate indifference to the substantial risk

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posed to his health by the excessive heat conditions as a result of policies put into place or

continued at the McConnell Unit. Defendants first contend in their summary judgment motion that

Warden Sanchez could not have enacted or enforced an unconstitutional policy during the relevant

time period because he left the McConnell Unit on September 1, 2021. (D.E. 84, p. 25).

In his declaration, Warden Sanchez states that he worked at the McConnell Unit from June

1, 2021, until September 1, 2021. (D.E. 84-4, p. 1). However, as Plaintiff points out, Defendants’

First Supplemental Disclosures indicate that Warden Sanchez worked at the McConnell Unit until

September 1, 2022.'° (DE. 93-4, p. 3). Plaintiff states in his Amended Complaint that Warden

Sanchez served as the Senior Warden at the McConnell Unit during the relevant time period from

April 2022 through August 2022. (D.E. 6, p. 12). The Court finds, therefore, that a factual dispute

exists as to when Warden Sanchez worked as the McConnell Unit’s senior warden sufficient to

preclude granting summary judgment in his favor on this issue.

Next, Defendants contend that the evidence does not show each of the senior wardens

acting with the requisite subj ective deliberate indifference because they “took every possible step

in their power to ensure that Plaintiff (along with other inmates) had access to safe and effective

heating measures, including unlimited respite.” (D.E. 84, p. 25). As for his deliberate indifference

claims against each of the senior wardens, Plaintiff responds:

e Warden Sanchez — He was aware of facts from which the inference could be drawn

that a substantial risk of serious harm existed for Plaintiff. He further knew that the

unit operating at 50% manpower was insufficient for wellness checks, access to □□□□

conditioned respite, and unlimited showers. To support his claim against this

defendant, Plaintiff points to: (1) Defendants responding in discovery it was

impossible to determine the precise effectiveness of wellness checks; (2)

10 Defendants’ First Supplemental Disclosures further indicate that Warden Holmes worked at the

McConnell Unit from September 1, 2022, through July 15, 2023. (D.E. 93-4, p. 3-4). This conflicts with

Warden Holmes’s statement in his declaration that he served as the McConnell Unit’s senior warden from

September 1, 2021, through July 1, 2023. (D.E. 84-3, p. 1).

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Defendants producing no documents to support that wellness checks were

conducted for inmates like Plaintiff on the “Heat Restriction List”; and (3)

Defendants producing no “Respite Tracking Forms” to demonstrate that Plaintiff

had access to respite. (D.E. 93, p. 39-41).

° Warden Holmes — He was aware of facts from which the inference could be drawn

that a substantial risk of serious harm existed for Plaintiff. Contrary to the “respite

on demand” policy set forth in AD-10.64, Warden Holmes responded in discovery

that inmates may have to wait until space opens before being moved to a respite

atea. To support his deliberate indifference claim against this defendant, Plaintiff

points to: (1) Defendants responding in discovery it was impossible to determine

the precise effectiveness of wellness checks; and (2) Defendants responding in

discovery that, contrary to AD-10.64, TDCI officers do not evaluate heat-related

illnesses or report heat-related illnesses to unit medical staff or anybody else. Id. at

42, 44-47.

e Warden Amonett — He was aware of facts from which the inference could be drawn

that a substantial risk of serious harm existed for Plaintiff. Contrary to the “respite

on demand” policy set forth in AD-10.64, Warden Amonett, like Wardens Sanchez

and Holmes, implemented policies limiting wellness checks, providing inadequate

space for inmates like Plaintiff requesting air-conditioned respite, inadequately

staffing a sufficient number of escorts for G5 inmates like Plaintiff to access respite

and instead placing G5 inmates in overly-restricted locations. Id. at 47-S0.

Former McConnell Unit Wardens Amonett, Holmes, and Sanchez each stated that an

“inmates” access to respite was sometimes delayed or limited due to understaffing, which was a

persistent problem across TDCI” while each warden served as the McConnell Unit’s warden. (D.E.

84-1, p. 2); (D.E. 84-2, p. 2); (DE. 84-3, p. 2); (D.E. 84-4, p. 2). Each warden explained:

° The McConnell Unit operates at below 50% staffing at all relevant times.

e All decisions regarding hiring and allocation of staff across units are made by

TDCJ’s Security Operations and Assessments Department.

e Therefore, as a Senior Warden, each warden had no power to hire staff to fill

shortages.

e The most each senior warden could do was impose mandatory overtime and request

temporary assistance from officers at other units—which was frequently done—but

these efforts were often limited by employment policies and understaffing at other

units.

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e Notwithstanding, one of the top priorities as a senior warden was to ensure that the

respite requirements of AD-10.64 were met, and each warden made every effort to

utilize staff efficiently to do so.

e For example, if there was a limited number of escorting officers available on a hot

day, the senior warden instructed the officers to prioritize escorting G4/G5 inmates

to and from respite areas, even if doing so means that fewer officers were available

to perform less-important (though technically mandatory) duties such as escorting

inmates to the library or education building.

° Each warden also instructed officers to prioritize escorting to respite areas inmates

who showed signs of heat-related symptoms such as sweating, heavy breathing, or

lethargy.

e Based on these and other efforts, none of the senior wardens believed that any

inmate was ever denied respite entirely on high-temperature days during his or time

as senior warden.

e Rather, at most, inmates’ access to respite may have been slightly delayed, or the

duration of their respite may be shortened.

° While waiting for respite, inmates always had access to cold water and other heat-

mitigation measures outlined in AD-10.64.

e During the summers of 2023 and 2024, G5 inmates like Plaintiff were escorted due

to security concerns to the 12 Building for respite where they were placed either in

3 x 3-foot holding cells or legal booths which measure either 3 x 3-feet or 6 x 5-

feet.

e G5 inmates were placed in these small holding cells and legal booths because no

other air-conditioned areas were available for use without posing serious security

concerns.

e Both the holding cells and legal booths contained a stool, and inmates using those

areas for respite had access to cold water and bathroom facilities upon request.

e The use of these small respite areas for GS inmates like Plaintiff was not punitive,

and each former senior warden did not believe that placing inmates in those areas

for respite posed a risk of harm, especially since inmates only remained in respite

areas for short periods of time.

° While every portion of AD-10.64 may not have been followed at times and

instances of understaffing may have delayed or limited respite access, each former

senior warden did everything in his or her power to ensure compliance with the

AD-10.64 and protect inmates from heat-related illness.

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° At no point did any of the former senior wardens institute a policy or practice of

limiting or prohibiting certain inmates from receiving respite or wellness checks.

(D.E. 84-2, p. 1-3); (DE. 84-3, p. 1-3); (D.E. 84-4, p. 1-3).

In contrast, Plaintiff states that, from April 2022 through August 2022, his 30 to 50 requests

for respite were all denied while Warden Sanchez was the senior warden. (DE. 6, p. 12). Plaintiff

attributes these denials to a policy put in place by the senior warden, presumably Warden Sanchez,

where the 200 G5 inmates like Plaintiff were automatically denied respite due to the lack of staff

to escort these inmates to respite. (DE. 10, p. 16). Plaintiff cites over 25 incidents from June 29,

2023, through July 30, 2023, where he was outright denied respite or received respite after various

time delays. (D.E. 10-1, p. 2-6). Plaintiff explains that these denials or delays often occurred due

to understaffing and the lack of escorts available to take him to 12 Building. Jd. Defendants were

unable to produce any documentation through “Respite Tracking Forms” to show when Plaintiff

was granted respite or otherwise indicate how well the respite measures were working at the

McConnell Unit. (D.E. 93-3, p. 9).

It is undisputed that Plaintiffs custody status was G5 during the summers of 2022 and

2023. (D.E. 10, p. 1); (DE. 84-1, p. 3). Whenever Plaintiff was escorted to respite in the 12

Building, he indicates that he was placed in a 3 x 3-foot holding cell. (D.E. 6, p. 10); (D.E. 10, p.

12). According to Plaintiff, this policy hindered his ability to elevate his leg and access the

bathroom, which was needed due to his diabetic condition. (D.E. 6, p. 10); (D.E. 10, p. 12). Plaintiff

attributes his forced placement in small holding cells to the policies enforced by Wardens Amonett,

Holmes, and Sanchez. (D.E. 10, p. 11). Plaintiff states that senior-level wardens (Wardens

Amonett, Holmes, and Sanchez) were responsible for ensuring that escorts to respite and adequate

space other than small holding cells was available for inmates requesting respite. Jd at 7.

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Competent summary judgment evidence shows Wardens Amonett, Holmes, and Sanchez as

conceding that (1) an inmate’s access to respite may be slightly delayed on occasion with the

duration in respite shortened; and (2) respite areas had space limitations, which caused on rare

occasions for inmates to wait until space opened up before being taken to respite. (D.E. 84-2, p.

3); (D.E. 84-3, p. 4); (D.E. 84-4, p. 4); (D.E. 93-3, p. 17).

On the issue of wellness checks, Plaintiff has presented competent summary judgment

evidence showing that he was on the Heat Restriction List, at least in the summer of 2023, but that

McConnell Unit officials never performed wellness checks. (D.E. 10, p. 6); (D.E. 93-9, p. 2-7).

Plaintiff states that senior-level wardens (Wardens Amonett, Holmes, and Sanchez) were

responsible for ensuring that wellness checks were performed for heat-sensitive inmates like

Plaintiff under AD-10.64. (D.E. 10, p. 6). No documents were produced by Defendants to show

that wellness checks had been performed in a proper manner during the summer months of 2022

and 2023. (D.E. 93-3, p. 8).

Plaintiff further points to another discrepancy between the requirements of AD-10.64 and

the heat-mitigation measures implemented at the McConnell Unit. Under AD-10.64, “[security

s|taff shall immediately seek care for any and all offenders requesting medical assistance or

exhibiting signs of illness, even if they are not listed on the Heat Restriction List.” (D.E. 84-5, p.

7). In the “Emergency Treatment” section of AD-10.64, staff is entrusted with monitoring and

seeking “care for offenders requesting medical assistance or exhibiting signs of illness during

periods of excessive or extreme temperatures.” Jd. at 10. Plaintiff points to competent summary

judgment evidence, contrary to these mandates, indicating that TDC] officers were not charged by

supervisory officials at the McConnell Unit with evaluating heat-related illnesses or reporting such □

illnesses to medical staff. (D.E. 93-3, p. 14).

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The gravamen of Plaintiff's deliberate indifference claim against Wardens Amonett,

Holmes, and Sanchez is that these senior supervisory officials (1) knew that Plaintiff faced a

substantial risk of serious harm due to the excessive heat conditions; and (2) disregarded that risk

by failing to take reasonable measures to abate the risk through their policies addressing the

excessive heat conditions at the McConnell Unit. “‘Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence, and a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious.’” Ball, 792 F.3d at

594 (quoting Farmer, 511 USS. at 842).

The competent summary judgment evidence reflects Plaintiffs documentation of the

excessive heat conditions in the summer of 2022 and 2023. The Tiede court specifically found that

excessive heat accounts for hundreds of fatalities per year, that Texas summer temperatures have

trended warmer with increasing heat indexes, and that Texas prisons without air conditioning are

unreasonably dangerous during the summer months due to the extreme heat. Tiede, 796 F. Supp.3d

at 290-94. A reasonable inference can be made that Wardens Amonett, Holmes, and Sanchez were

likewise well aware of the risk posed by excessive heat conditions in Texas, especially given the

open and obvious, well-known nature of South Texas’s brutal summer heat. Coones v. Cogburn,

No. 24-10777, 2025 WL 2092392, at *3 (5th Cir. Jul. 25, 2025) (per curiam) (citing Hinojosa, 807

F.3d at 667 (“[T]he open and obvious nature of the dangerously hot conditions would also support

an inference of deliberate indifference.”)).

Defendants maintain they took every step in their power to ensure that Plaintiff and all

other inmates at the McConnell Unit had access to safe and effective heat-mitigation measures

including full respite. (D.E. 84, p. 34). However, the “mere presence of remedial measures” is not

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a sufficient defense as such measures “must adequately ensure prisoners do not experience

excessive heat in violation of the Eighth Amendment. Coones, 2025 WL 2092392, at *3 (citing

Yates, 868 F.3d at 360; Blackmon v. Garza, 484 F. App’x 866, 871 (Sth Cir. 2012) (per curiam)

(holding that despite remedial efforts by prison officials, inmates were still denied access to

adequate cooling measures).

The evidence detailed above reveals key factual disputes as to whether Wardens Amonett,

Holmes, and Sanchez took reasonable steps, in light of their knowledge of the excessive heat

conditions, to put in place policies that adequately protected McConnell Unit inmates, especially

G5 inmates like Plaintiff, from excessive heat conditions. Such factual disputes relate to decisions

and policies by the senior wardens: (1) impacting Plaintiffs ability to access respite as a G5 inmate

requiring a security staff escort; (2) the automatic placement of G5 inmates into small holding cells

when receiving respite; (3) the lack of wellness checks for all inmates, including inmates like

Plaintiff, on the Heat Restriction List; and (4) whether subordinate staff were charged with

monitoring inmates for heat-related illnesses and assisting inmates to medical.

The Court is mindful of the statements made by Wardens Amonett, Holmes, and Sanchez

that they were not responsible for staffing matters and that staffing issues were an issue at the

McConnell Unit during the summer months of 2022 and 2023. Nevertheless, disputed factual

issues as to the effectiveness of heat-related remedial measures exist during this time frame,

especially in light of compelling evidence presented by Plaintiff that he received fewer remedial

measures than set forth in AD-10.64. This TDCJ directive mandated unlimited respite when

requested as well as wellness checks for inmates on the Heat Restriction List. The necessity for

such remedial measures takes on added significance for Plaintiff. The objective medical evidence

reflects that Plaintiff faced an increased susceptibility to the effects of excessive heat due to heat

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stress factors caused by his hypertension, diabetes, and prescribed hypertension medication. (D.E.

86, p. 33, 60).

Accordingly, genuine issues of material fact exist as to whether Wardens Amonett,

Holmes, and Sanchez (1) knew that Plaintiff faced a substantial risk of serious harm due to the

excessive heat conditions present during the summers of 2022 and 2023; and (2) disregarded that

risk by failing to take reasonable remedial measures to abate the risk to Plaintiff through their

policies addressing the excessive heat conditions at the McConnell Unit. See Valentine, 993 F.3d

at 281; Hinojosa, 807 F.3d at 669; see also Coones, 2025 WL 2092392, at *3 (citing the Fifth

Circuit as “repeatedly recognizing that supervisory defendants’ failure to provide adequate

measures to remediate the Texas heat violates the Eighth Amendment”). These disputed factual

issues preclude an entitlement to qualified immunity for Wardens Amonett, Holmes, and Sanchez

under the first prong of the analysis with regard to Plaintiff's deliberate indifference claim against

them in their individual capacities for putting into place or continuing policies (1) limiting wellness

checks; (2) providing inadequate space for inmates like Plaintiff requesting air-conditioned respite;

(3) inadequately staffing a sufficient number of escorts for Plaintiff to access respite upon request

(4) placing G5 inmates like Plaintiff in a restrictive location (3 x 3-foot holding cell) for respite;

and (5) denying access to respite for G5 inmates like Plaintiff.

The Court next turns to the second prong of the qualified immunity analysis—whether the

actions of Wardens Amonett, Holmes, and Sanchez actions were objectively unreasonable under

clearly established law. It is true, as discussed above, that general statements of legal principles

not tethered “to analogous or near-analogous facts are not sufficient to establish a right clearly in

a given context.” See Vincent, 805 F.3d at 547 (internal quotations and citation omitted). The Fifth

Circuit has recognized that the central concept in the qualified immunity context is “fair warning,”

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in that “[q]ualified immunity should not be denied unless the law is clear in the more particularized

sense that reasonable officers should be ‘on notice that their conduct is unlawful.’” Kinney v.

Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)).

“The law can be clearly established despite notable factual distinctions between the precedents

relied on and the cases then before the Court, so long as the prior decisions gave reasonable

warning that the conduct then at issue violated constitutional rights.” Ramirez v. Martinez, 716

F.3d 369, 379 (Sth Cir. 2013) (internal quotations and citations omitted).

Defendants contend that it was not ‘beyond debate’ in the summers of 2022 and 2023 that:

e “limiting an inmate’s wellness checks and/or access to respite areas violated the

Eighth Amendment, especially where the inmate had no documented heat-related

sensitivities or illnesses, and the officials were doing everything in their power to

provide all heat-mitigation measures”; and

° subjecting inmates to temporary respite in small holding cells violated the Eighth

Amendment, especially where the inmate did not face a substantial risk of harm

from the conditions in those holding cells; and

(D.E. 84, p. 30). Liberally construed, Plaintiff essentially responds that the law was clear at this

time that he was subjected to a substantial risk of serious harm though the denial of respite and

wellness checks on numerous occasions as well as placement in a small 3 x 3-foot holding cell—

when he was able to get respite—on occasion without the ability to access the toilet or stay in

respite for a sufficient amount of time. (D.E. 93, p. 61-68).

Binding precedent in the Fifth Circuit before the summers of 2022 and 2023 established

generally that subjecting prisoners to excessive heat without providing adequate remedial

measures violates the Eighth Amendment. See Yates, 868 F.3d at 359 (“It is well-established in

[the Fifth Circuit] ‘that the Eighth Amendment guarantees inmates a right to be free from exposure

to extremely dangerous temperatures without adequate remedial measures.””) (quoting Hinojosa,

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807 F.3d at 669). Fifth Circuit case law, however, is not so clearly settled regarding whether the

specific heat mitigation measures afforded to Plaintiff at the McConnell Unit were inadequate in

violation of the Eighth Amendment. Three Fifth Circuit cases are instructive on this issue.

In Gates, the Fifth Circuit upheld in 2004 a class-wide injunction based on Eighth

Amendment violations, which required the Mississippi Department of Corrections to equip each

cell with fans, provide inmates with access to ice water, and allow daily showers when the heat

index reaches and exceeds 90 degrees. Gates, 376 F.3d at 339-40. The Gates decision provides an

initial benchmark from the Fifth Circuit for determining what remedial measures are deemed

adequate for addressing excessive heat conditions in a prison to avoid an Eighth Amendment

deliberate indifference violation.

In contrast, the Fifth Circuit in Blackmon addressed an inmate’s Eighth Amendment

excessive heat claim where: (1) inmate Blackmon was confined in a non-air-conditioned prison

dormitory with 53 other men and with only one industrial fan; (2) inmates were not allowed to use

personal fans due to a lack of electric outlets; (3) the windows in the dorm were sealed; (4)

Blackmon testified that a lack of iced water forced inmates to drink from sinks; and (5) Blackmon

had to wait “roughly an hour” to use a shower when it was needed the most on a hot day because

several showers were broken. Blackmon, 484 F. App’x at 871. The Fifth Circuit concluded that a

reasonable jury could find “that the remedial measures adopted by prison officials were inadequate

to combat the extreme [excessive heat] conditions in [Blackmon’s prison] dorm and to address the

salient health risks.” Jd. at 872. In the Court’s view, the Blackmon decision issued in 2012 sets a

benchmark as to what constitutes clearly inadequate remedial measures employed by prison

officials to address excessive heat conditions.

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Lastly, in Ball, the Fifth Circuit in 2015 affirmed Eighth Amendment violations where

several Louisiana death-row inmates—who had medical conditions making them more susceptible

to excessive heat—were housed in “very hot cells without sufficient access to heat-relief

measures.” Ball, 792 F.3d at 596. The Fifth Circuit reached this decision even though the inmates

had access to potable water and ice. Jd. at 590. The Ball court rejected the State’s argument that

there could be no Eight Amendment violation where the remedial measures mandated in Gates

were provided to the inmates. Jd. at 592. While not overturning or modifying Gates on this issue,

the Ball court explained that the remedial measures sanctioned in Gates were distinguishable in

the following ways from those remedial measures provided to the death row inmates in Ball: (1)

each fan in the Louisiana’s death row served two cells in an inadequate manner; (2) the death row

inmates in Ball only had “unfettered access to ice during the one hour a day they can walk the

tiers”; and (3) while Gates approved of prisoners using showers once a day, the documented water

temperatures for the showers used by the death row inmates were between 100 and 120 degrees.

Id. at 595-96.

Here, as discussed above, Plaintiff has presented considerable evidence to indicate he was

denied certain heat-mitigation m

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