# Thomas

> District Court, S.D. Texas · August 14, 2026

URL: https://www.frixlaw.com/law-library/cases/11418249

## Case

- **Full name:** Jewell Thomas v. Warden Elbert Holmes, et al.
- **Court:** District Court, S.D. Texas
- **Decided:** August 14, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11418249

## Opinion text

□ 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).
1/82

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).
2/82

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).
3/82

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
4/82

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

5/82

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;
7/82

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
8 / 82

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);
9/82

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.

10/82

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
11/82

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
12/82

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).
13 / 82

° 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).

14/82

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
15/82

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
16/82

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,
18/82

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
19/82

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.

20 / 82

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.
21/82

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.

22/82

° 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,

23 / 82

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,

24 / 82

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[;]”

25 / 82

° 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).
26 / 82

° 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

/ 82

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
28 / 82

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:

29 / 82

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.
30 / 82

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.
31/82

(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.

32/82

(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
33 / 82

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
34 / 82

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.

35 / 82

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)

36/82

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:
37/82

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
38 / 82

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)
39 / 82

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.

40 / 82

(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:
4] / 82

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
42 / 82

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

43 / 82

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
44 / 82

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”).
45 / 82

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—
46 / 82

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
47 / 82

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
48 / 82

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
49 / 82

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.

50/82

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

51/82

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
52 / 82

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;

53 / 82

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
54/82

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.
55/82

© 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).

56 / 82

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, a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11418249. Public record. Not legal advice.