Petition for Writ of Certiorari — Trent Michael Taylor, Petitioner v. Robert Riojas, et al.

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APPENDIX A

United States

Court of Appeals

Fifth Circuit

FILED

December 20, 2019

Lyle W. Cayce

Clerk

IN THE UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10253

TRENT TAYLOR,

Plaintiff–Appellant,

versus

ROBERT STEVENS, Warden, Individually and in

their Official Capacity;

ROBERT RIOJAS, Sergeant of Corrections Officer,

Individually and in their Official Capacity;

RICARDO CORTEZ, Sergeant of Corrections Officer,

Individually and in their Official Capacity;

STEPHEN

HUNTER,

Correctional

Officer,

Individually and in their Official Capacity;

LARRY

DAVIDSON,

Correctional

Officer,

Individually and in their Official Capacity;

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SHANE SWANEY, Sergeant of Corrections Officer,

Individually and in their Official Capacity;

FRANCO ORTIZ, Correctional Officer, Individually

and in their Official Capacity;

CREASTOR HENDERSON, L.V.N., Individually and

in their Official Capacity;

STEPHANIE ORR, L.V.N., Individually and in their

Official Capacity;

JOE MARTINEZ,

Defendant–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before OWEN, Chief Judge, JONES and SMITH,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Trent Taylor, a Texas inmate, sued Robert

Stevens, Robert Riojas,1 Ricardo Cortez, Stephen

Hunter, Larry Davidson, Shane Swaney, Franco

Ortiz, Joe Martinez, Creastor Henderson, and

Stephanie Orr2 under 42 U.S.C. § 1983 for violating

1 The district court spelled Riojas’s last name “Rojas,” but both

sides spell it “Riojas” on appeal.

2 Taylor also sued many other defendants for different events

during his incarceration at the Montford Unit. But Stevens,

Riojas, Cortez, Hunter, Davidson, Swaney, Ortiz, Martinez,

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his Eighth Amendment rights. At the time of the

events, the defendants were prison officials at the

John T. Montford Unit of the Texas Department of

Criminal Justice (“Montford Unit”).

Taylor contended generally that he was housed in

unconstitutional conditions and that various

defendants were deliberately indifferent to his health

and safety. He sought compensatory and punitive

damages, a declaratory judgment, and injunctive

relief.

Only Taylor’s individual-capacity claims are

relevant to this appeal. Specifically, Taylor appeals

the summary judgment, on the basis of qualified

immunity (“QI”), for

 Stevens, Riojas, Cortez, Hunter, Davidson,

Swaney, Martinez, and Henderson, on Taylor’s

claim that they violated the Eighth Amendment

in forcing Taylor to live in two filthy cells for six

days.

 Riojas, Martinez, Ortiz,3 and Henderson,4 on

Taylor’s claim that they were deliberately

Henderson, and Orr are the defendants-appellees for this

appeal.

3 Ortiz has not filed a brief.

4 The district court mistakenly analyzed this claim as involving

only Riojas, Martinez, and Ortiz, failing to include Henderson.

Yet Taylor’s complaint averred that Henderson was involved in

denying him a trip to the restroom, and on appeal he references

Henderson as a proper defendant. We therefore review the claim

with Henderson as a defendant-appellee. Regardless, we

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indifferent to his health and safety in refusing to

escort him to the restroom for a twenty-four-hour

period.

 Riojas, Martinez, and Henderson, on Taylor’s

claim that they violated the Eighth Amendment

in failing immediately to assess his chest pains.

 Orr, on Taylor’s claim that Orr was deliberately

indifferent to Taylor’s health in failing

immediately to examine Taylor upon his request

to see a doctor.

 Warden Stevens, on Taylor’s claim that Stevens

created and implemented an unconstitutional

policy that allowed the above violations.

We affirm as to all claims, save one.

I.

Stevens, Riojas, Cortez, Hunter, Davidson,

Swaney, and Martinez con-tend that Taylor filed his

notice of appeal too late,5 so we lack appellate

jurisdiction under 28 U.S.C. § 1291. We disagree. The

district court entered a final Federal Rule of Civil

Procedure 54(b) judgment on the claims relevant to

this appeal on January 5, 2017. On January 14, 2017,

Taylor timely filed a Federal Rule of Civil Procedure

conclude that Henderson is entitled to QI on the restroomrelated claim.

Henderson and Orr filed a separate brief, and they do not

contest our jurisdiction.

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59(e) motion to alter or amend that judgment. The

district court denied the motion on January 30, 2017.

Taylor had until thirty days after the Rule 59(e)

denial to file his notice of appeal. See Fed. R. App. P.

4(a)(4)(A)(iv). Taylor did so on February 22, 2017,

which is within the thirty-day limit. So, we have

jurisdiction.

II.

A. Standard of Review

“We review a summary judgment de novo,

applying the same standards as the district court. We

construe all facts and inferences in the light most

favorable to the nonmovant.” Arenas v. Calhoun, 922

F.3d 616, 620 (5th Cir. 2019) (citations omitted).

When a defendant pleads QI, however, “the burden

then shifts to the plaintiff, who must rebut the

defense by establishing a genuine fact issue as to

whether the official’s allegedly wrongful conduct

violated clearly established law.” Brown v. Callahan,

623 F.3d 249, 253 (5th Cir. 2010). We still draw all

inferences in the plaintiff’s favor. Id.

B. Qualified Immunity and Eighth Amendment

Claims

The district court granted summary judgment for

each defendant on the basis of QI. “The [QI] defense

has two prongs: whether an official’s conduct violated

a constitutional right of the plaintiff; and whether the

right was clearly established at the time of the

violation. A court may rely on either prong of the

defense in its analysis.” Id. (citations omitted). Thus,

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at the first prong, a prisoner bringing a § 1983 claim

for violations of the Eighth Amendment must show

that his Eighth Amendment rights were violated. See

id.

An inmate must establish two elements—one

objective, one subjective—to prevail on a conditionsof-confinement claim. Arenas, 922 F.3d at 620. First,

he must show that the relevant official denied him

“the minimal civilized measure of life’s necessities”

and exposed him “to a substantial risk of serious

harm.” Id. (quotation marks omitted). The “alleged

deprivation” must be “objectively serious.” Id. Second,

the prisoner must show “that the official possessed a

subjectively culpable state of mind in that he

exhibited deliberate indifference” to the risk of harm.

Id. (citations and quotation marks omitted).

Proving deliberate indifference is no small hurdle.

See id. “A prison official displays deliberate

indifference only if he (1) knows that inmates face a

substantial risk of serious bodily harm and (2)

disregards that risk by failing to take reasonable

measures to abate it.” Id. (quotation marks omitted).

This is a fact-intensive inquiry “subject to

demonstration in the usual ways, including inference

from circumstantial evidence.” Gates v. Cook, 376

F.3d 323, 333 (5th Cir. 2004). “[A] factfinder may

conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious.” Id.

III. Cell-Conditions Claim

In his complaint, Taylor contended that he was

forced to reside in two unconstitutionally filthy cells

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for six6 days. The defendants for that claim (Stevens,

Riojas, Cortez, Hunter, Davidson, Swaney, Martinez,

and Henderson) asserted QI and moved for summary

judgment, which the district court granted. We

affirm, because though there are factual disputes as

to a constitutional violation, the law wasn’t clearly

established.7

A.

Taylor stayed in the first cell starting September

6, 2013. He alleged that almost the entire surface—

including the floor, ceiling, window, walls, and water

faucet—was covered with “massive amounts” of feces

6 Taylor was housed in one or the other cell on each day spanning

September 6-13, 2013, but the total time he spent in the two cells

equaled about six twenty-four-hour periods. Taylor alleged that

he entered the first cell at about 11:00 p.m. on September 6 and

left it sometime between noon and 1:00 p.m. on September 10.

His time in the second cell lasted from about 2:00 p.m. on

September 11 to 10:00 a.m. on September 13.

7 Our reasons for affirming for Stevens and Henderson on the

cell-conditions claim differ from that of the other defendants.

Beyond contending that Stevens created unconstitutional prison

policies—a claim we reject as explained below—Taylor has failed

to make any allegation that Stevens was involved in placing him

in unconstitutionally dirty cells. Taylor thus has failed to create

a genuine factual dispute, and summary judgment for Stevens

was proper. See, e.g., Boudreaux v. Swift Transp. Co., 402 F.3d

536, 544 (5th Cir. 2005) (stating that the absence of evidence for

the non-movant’s claim is a proper basis for summary judgment).

As for Henderson, Taylor failed to allege that Henderson knew

about the conditions of either of Taylor’s cells. Thus, Taylor can’t

create a genuine factual dispute on deliberate indifference. See

Boudreaux, 402 F.3d at 544 (explaining that absence of evidence

is a proper basis for summary judgment).

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that emitted a “strong fecal odor.” Taylor had to stay

in the cell naked. He said that he couldn’t eat in the

cell, because he feared contamination. And he couldn’t

drink water, because feces were “packed inside the

water faucet.” Taylor stated that the prison officials

were aware that the cell was covered in feces, but

instead of cleaning it, Cortez, Davison, and Hunter

laughed at Taylor and remarked that he was “going

to have a long weekend.” Swaney criticized Taylor for

complaining, stating “[d]ude, this is [M]ontford, there

is shit in all these cells from years of psych patients.”8

On September 10, Taylor left the cell.

A day later, September 11, Taylor was moved to a

“seclusion cell,” but its conditions were no better. It

didn’t have a toilet, water fountain, or bunk. There

was a drain in the floor where Taylor was ordered to

urinate. The cell was extremely cold because the air

conditioning was always on.9 And the cell was

anything but clean.

Taylor alleged that the floor drain was clogged,

leaving raw sewage on the floor. The drain smelled

strongly of ammonia, which made it hard for Taylor

to breathe. Yet, he alleged, the defendants repeatedly

told him that if he needed to urinate, he had to do so

in the clogged drain instead of being escorted to the

restroom. Taylor refused. He worried that, because

8 Taylor also alleged that he asked numerous prison officials to

clean the cell but was refused.

Swaney allegedly told Taylor that he hoped Taylor would

“fucking freeze” in the seclusion cell, which was known to other

prisoners as “the cold room.”

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the drain was clogged, his urine would spill onto the

already-soiled floor, where he had to sleep because he

lacked a bed. So, he held his urine for twenty-four

hours before involuntarily urinating on himself.10 He

stayed in the seclusion cell until September 13. Prison

officials then tried to return him to his first, fecescovered cell, but he objected and was permitted to stay

in a different cell.

Among other claims, Taylor sued Stevens, Riojas,

Cortez, Hunter, Davidson, Swaney, Martinez, and

Henderson under § 1983, complaining that the

squalid conditions violated the Eighth Amendment.

The defendants raised the defense of QI and moved

for summary judgment in part on that basis. Taylor

responded mainly with his verified pleadings and a

declaration.

The district court granted summary judgment on

the basis of QI, noting that the defendants had

“provided little in the way of specific summary judgment evidence to support their assertion that the cells

were not, in fact, covered with feces.” But the court

found “merit in [d]efendants’ general argument …

that the alleged cell conditions [did] not rise to the

level of a constitutional violation.” The court held that

(1) because Taylor was exposed to the paltry cell

conditions “for only a matter of days,” there was no

constitutional violation under Davis v. Scott, 157 F.3d

1003 (5th Cir. 1998), and that (2) Taylor had not

“show[n] that he suffered any injury.” The court also

10 Taylor’s contentions related to his involuntary urination are

covered below.

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found that the defendants had allowed Taylor to

shower twice and had attempted to clean the first

cell’s walls. Taylor appeals, contesting the district

court’s application of Davis and averring that the

court improperly resolved genuine factual disputes at

summary judgment.

B.

The Eighth Amendment “does not mandate

comfortable prisons, but neither does it permit

inhumane ones.” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (citation and quotation marks omitted). At

a minimum, prison officials “must provide humane

conditions of confinement” and “ensure that inmates

receive adequate food, clothing, shelter, and medical

care.” Id. They cannot deprive prisoners of the “basic

elements of hygiene” or the “minimal civilized

measure of life’s necessities.” Palmer v. Johnson, 193

F.3d 346, 352-53 (5th Cir. 1999) (quotation marks

omitted). Prison conditions cannot inflict “wanton and

unnecessary” pain. Id. at 351.

“[F]ilthy, unsanitary” cells can violate the Eighth

Amendment. Harper v. Showers, 174 F.3d 716, 720

(5th Cir. 1999). In McCord v. Maggio, 927 F.2d 844,

848 (5th Cir. 1991), for example, we found a violation

where a prisoner was forced, for a ten-month period,

to sleep on a wet mattress “in filthy water

contaminated with human waste.” Such conditions

were “unquestionably a health hazard” and were “so

unhygienic as to amount to a clear violation of the

Eighth Amendment.” Id. The responsible official

therefore did not “meet the threshold requirements

for [QI].” Id.

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Similarly, in Gates, 376 F.3d at 338, we held that

officials had violated the Eighth Amendment in

forcing prisoners to live in cells covered with “crusted

fecal matter, urine, dried ejaculate, peeling and

chipping paint, and old food particles.” The district

court hadn’t clearly erred in finding that “[l]iving in

such conditions” presented “a substantial risk of

serious harm to the inmates.” Id. And because the

officials could have “easily observed” those deplorable

conditions, there was no clear error in finding them

deliberately indifferent to the risk. Id.

A dirty cell does not automatically violate the

Constitution, however. A “filthy, overcrowded cell …

might be tolerable for a few days and intolerably cruel

for weeks or months.” Hutto v. Finney, 437 U.S. 678,

686-87 (1978). Heeding that instruction, we have held

that a prisoner’s three-day stay in a cell smattered

with blood and excrement did not offend the Eighth

Amendment—at least where the prisoner was given

the chance to clean the cell. See Davis, 157 F.3d at

1005-06.

1. First Prong of Qualified Immunity

The first QI prong requires Taylor to show that

his constitutional rights were violated. Brown, 623

F.3d at 253. Because this is a § 1983 Eighth

Amendment claim at summary judgment, Taylor

must show genuine factual disputes about (1)

whether the defendants denied him the minimal

civilized measure of life’s necessities and put him at a

substantial risk of serious harm and (2) whether the

defendants were deliberately indifferent to that risk.

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Arenas, 922 F.3d at 620. Under our caselaw, Taylor

succeeds.

a. Substantial Risk of Serious Harm

In McCord, 927 F.2d at 848, and Gates, 376 F.3d

at 338, we held it violated the Eighth Amendment to

house prisoners in truly filthy, unsanitary cells. The

conditions that Taylor said existed were like those in

McCord and Gates—if not worse. He claimed that his

first cell was covered in feces, including feces jammed

inside his water faucet. That is like the cell in Gates,

id., whose walls were covered in feces, urine, and

dried ejaculate. And Taylor alleged that the floor in

his second cell was wet with urine and had a backedup drain into which he was told to urinate, leaving

him to sleep, naked, on the urine-soaked floor.11 That

is much like the conditions that the prisoner in

McCord endured—forced to sleep on a urine-soaked

mattress on the floor each night. See McCord, 927

F.2d at 848.

To be sure, McCord and Gates involved longer

periods in deplorable conditions than the six days of

which Taylor complains. See id. (describing tenmonth period); Gates, 376 F.3d at 338 (describing cell

conditions to which prisoners were regularly

exposed). But even if the length of time matters, it

11 We do not suggest hold that prison officials cannot require

inmates to sleep naked on the floor. There can be any number of

perfectly valid reasons for doing so. Our holding is limited to the

extraordinary facts of this case, in which Taylor alleges that the

floor on which he slept naked was covered in his and others’

human excrement.

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isn’t dispositive. See Palmer, 193 F.3d at 353 (stating

that length of time is one factor to consider in “the

totality of the specific circumstances”).

The district court noted that the defendants had

“provided little in the way of specific summary

judgment evidence to support their assertion that the

cells were not, in fact,” in such deplorable conditions.

Instead of granting summary judgment for the

defendants, it should have recognized that Taylor’s

allegations created a factual dispute.12 For support,

the court relied on Davis, 157 F.3d at 1005-06, which

the defendants aver controls. But Davis is

distinguishable.13 Taylor spent twice as much time

locked in his squalid cells as did the Davis prisoner:

six days, compared to three. And unlike the Davis

12 See Fed. R. Civ. P. 56(a); Hernandez v. Velasquez, 522 F.3d

556, 561 (5th Cir. 2008) (verified pleadings are competent

summary-judgment evidence where they are based on personal

knowledge, set forth facts that would otherwise be admissible,

and show that the affiant is competent to testify).

13 The district court also relied on Smith v. Copeland, 87 F.3d

265 (8th Cir. 1996). The court there found no Eighth Amendment

violation where a prisoner was housed in a cell with backed-up

sewage (from an overflowing toilet) for four days. Id. at 268-69.

The relatively short duration of the conditions, combined with

the fact that the prisoner refused an opportunity to flush the

toilet and clean the cell, meant no constitutional offense. See id.

Yet for the reasons that Davis is distinguishable, Smith is, too.

Taylor alleges that he spent six days in his filthy cells—which is

longer than the four days in Smith. And, even more relevantly,

unlike the prisoner in Smith, Taylor wasn’t given the chance to

clean his cell.

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prisoner, see id., Taylor wasn’t given the chance to

clean his cells, as the district court found.14

The defendants also complain that Taylor offered

only conclusional allegations, without supporting

evidence, about the conditions. But that ignores that

verified pleadings are competent evidence at

summary judgment.15 And even though Taylor’s

pleadings include conclusional language, they also

teem with specific factual allegations.16 We thus find

14 The district court did find that the defendants had attempted

to clean Taylor’s cells and relied upon that in granting summary

judgment. Yet in doing so, the court improperly resolved a

genuine factual dispute. See Fed R. Civ. P. 56(a). Taylor contends

that the defendants attempted to clean his first cell (the fecescovered one) only after he left it. As to the seclusion cell, Taylor

states, in his complaint, that Riojas tried to “spot dry[]” its floor

on September 12, one day after Taylor had entered that cell. But

Taylor contended that “lots of urine/sewage still remained on

[his] floor” after the spot dry. Thus, whether—and the extent to

which—the defendants attempted to clean Taylor’s cell was a

factual dispute ill-suited for summary judgment. See id.

15 See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831

F.2d 77, 80 (5th Cir. 1987) (holding that verified pleadings are

competent summary judgment evidence where they are based on

personal knowledge, set forth facts that would otherwise be

admissible, and show that the affiant is competent to testify);

Hernandez, 522 F.3d at 561 (same).

16 Take Page 4-A of Taylor’s verified complaint as an example.

To be sure, that page includes some conclusional language. For

example, Taylor states that he was subjected to “unnecessary

and wanton infliction of pain contrary to the contemporary

standards of decency” and that the prison officials had “showed

deliberate indifference to [his] safety and health.” But that’s not

all that Taylor says. He also recites highly specific facts about

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genuine factual disputes over whether the paltry

conditions of Taylor’s cells exposed him to a

substantial risk of serious harm and denied him the

minimal civilized measure of life’s necessities. See

Arenas, 922 F.3d at 620.

b. Subjective Deliberate Indifference

Taylor has created genuine factual disputes on

the subjective deliberate-indifference prong of his

Eighth Amendment claim. See id. “Deliberate

indifference is an extremely high standard to meet. A

prison official displays deliberate indifference only if

he (1) knows that inmates face a substantial risk of

serious bodily harm and (2) disregards that risk by

failing to take reasonable measures to abate it.” Id.

(cleaned up). Deliberate indifference can be proven

via circumstantial evidence, “and a factfinder may

conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious.”

Gates, 376 F.3d at 333.

Taylor repeatedly alleged that the defendants

knew that his cells were covered in feces and urine

and that he had an overflowing sewage drain in his

seclusion cell. “The risk” posed by Taylor’s exposure

to bodily waste “was obvious.”17 And the risk was

the feces-smeared contents of his cell, Cortez’s dismissive

remarks about the feces, the temperature of the room, and so on.

See Gates, 376 F.3d at 333; see also id. at 341 (“Frequent

exposure to the waste of other persons can certainly present

health hazards that constitute a serious risk of substantial

harm.”).

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especially obvious here, as the defendants forced

Taylor to sleep naked on a urine-soaked floor. Taylor

also alleged that the defendants failed to remedy the

paltry conditions, so he has shown factual disputes on

deliberate indifference. In sum, Taylor has met his

burden at the first QI prong to show that his Eighth

Amendment rights were violated. See Arenas, 922

F.3d at 620.

2. Second Prong of Qualified Immunity

The second prong of QI asks “whether the right

was clearly established at the time of the violation.”

Brown, 623 F.3d at 253. We should not define the

relevant right “at a high level of generality.” Ashcroft

v. al-Kidd, 563 U.S. 731, 742 (2011). Instead, “[t]he

dispositive question is whether the violative nature of

particular conduct is clearly established.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam)

(quotation marks omitted). “We do not require a case

directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” al-Kidd, 563 U.S. at 741. The “salient

question,” therefore, is whether the defendants had

“fair warning” that their specific actions were

unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741

(2002).18

Accord Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir.

2018) (“The central concern is whether the official has fair

warning that his conduct violates a constitutional right.”);

Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (“[O]fficers

need only have fair warning that their conduct is unlawful.”

(quotation marks omitted)).

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The law wasn’t clearly established. Taylor stayed

in his extremely dirty cells for only six days. Though

the law was clear that prisoners couldn’t be housed in

cells teeming with human waste for months on end,

see, e.g., McCord, 927 F.2d at 848, we hadn’t

previously held that a time period so short violated

the Constitution, e.g., Davis, 157 F.3d at 1005-06

(finding no violation partly because the defendant

stayed in the cell for only three days). That dooms

Taylor’s claim. Indeed, the ambiguity in the caselaw

was apparent even in dicta from the Supreme Court,

which has instructed that a “filthy, overcrowded

cell … might be tolerable for a few days and

intolerably cruel for weeks or months.” Hutto, 437

U.S. at 686-87. It was therefore not “beyond debate”

that the defendants broke the law. al-Kidd, 563 U.S.

at 741. They weren’t on “fair warning” that their

specific acts were unconstitutional. Hope, 536 U.S. at

741.

Accordingly, Taylor hasn’t met his burden to

overcome QI on his cell-conditions claim. Though he

showed genuine disputes about a constitutional

violation, the law wasn’t clearly established. We

therefore affirm the summary judgment for Riojas,

Cortez, Hunter, Davidson, Swaney, and Martinez on

that claim. (And, for separate reasons explained

above, we affirm the summary judgment for Stevens

and Henderson on that claim.)

IV. Claims of Deliberate Indifference to Health and

Safety

Taylor contends that the district court erred in

granting summary judgment for various defendants

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on his claims of indifference to his health and safety.

Specifically, he appeals on three such claims for which

the court granted summary judgment:

A. That Riojas, Martinez, Ortiz, and

Henderson were deliberately indifferent in

refusing to escort Taylor to the restroom for

a twenty-four-hour period on September 12,

2013.

B. That Riojas, Martinez, and Henderson were

deliberately

indifferent

in

failing

immediately to assess his chest pains on

September 12, 2013.

C. That Orr was deliberately indifferent in

failing immediately to examine Taylor after

Taylor requested to see a doctor on

September 14, 2013.

A. Denial of Restroom Visit

Taylor contends that the district court erred in

granting summary judgment on Taylor’s claim that

Riojas, Martinez, Ortiz, and Henderson were

deliberately indifferent to Taylor’s health in refusing

to escort him to the toilet for twenty-four hours on

September 12, 2013. Taylor alleged that he repeatedly

asked Riojas, Ortiz, and Martinez to take him from

his seclusion cell to the restroom that day. But they

told him to urinate in the drain in his cell’s floor, even

though it was already overflowing with sewage.

Taylor refused to do so because he didn’t want to spill

even more urine onto the floor where he would have

to sleep—naked—that evening.

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Finally, after holding in his urine for twenty-four

hours, Taylor’s bladder pain intensified, and he

urinated involuntarily on himself. He alleged that he

“tried to get [his urine] in the drain,” but that because

the drain was clogged, his urine “mix[ed] with the raw

sewage and r[a]n all over [his] feet.” Taylor “got down

on [his] hands and knees and began to scoop the

sewage away from the area of the floor” where he

would have to sleep that night. Eventually, he had to

be treated for a distended bladder and was

catheterized.

In moving for summary judgment, Riojas, Ortiz,

Martinez, and Henderson raised QI. The district court

noted that they had not “directly den[ied] [Taylor’s]

allegations that they refused him the opportunity to

use the restroom … or that they advised him to pee in

the drain like everyone else.” But the court granted

summary judgment anyway. It found that (1) security

notes that the defendants had provided contradicted

Taylor’s allegations, showing that Taylor had

repeatedly refused to visit the toilet on September 12

and had been taken around 7:00 p.m.; (2) Taylor had

“not provided anything other than unsupported and

conclusory assertions that he was denied the

opportunity to go to the restroom for 24 hours”; (3)

Taylor “ha[d] not demonstrated that it was not

physically possible for him to relieve himself in the

drain as instructed and thus prevent his discomfort”;

and (4) Taylor had failed to “establish a physical

injury that [was] more than de minimis.” Thus, the

court decided that the defendants were entitled to QI

because Taylor had not shown a constitutional

violation.

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We reverse the summary judgment except as to

Henderson.19 Restating the law from above, to

overcome QI, Taylor must show genuine factual

disputes that his clearly established Eighth

Amendment rights were violated. Brown, 623 F.3d at

253. That requires him to show a fact issue over

whether (1) objectively, the defendants exposed him

to a substantial risk of serious harm and denied him

the minimal civilized measure of life’s necessities and

(2) subjectively, the defendants were deliberately

indifferent to the risk. See Arenas, 922 F.3d at 620.

Taylor also must demonstrate that the right was

clearly established. Brown, 623 F.3d at 253.

In Palmer, 193 F.3d at 352, we found an Eighth

Amendment violation where prison officials

“complete[ly] depriv[ed]” “scores of inmates” of a

minim-ally sanitary way to relieve themselves for

seventeen hours. Forty-nine inmates were forced to

sleep outdoors overnight, confined to a twenty-bythirty-foot area. Id. at 349. Prison officials refused to

let the inmates leave the small area to relieve

19 Even taken as true, Taylor’s allegations against Henderson

regarding the failure to take Taylor to the restroom don’t

establish a constitutional violation. So, we affirm summary

judgment for Henderson on that claim. In his complaint, Taylor

alleged only that he told Henderson that he “need[ed] to use the

restroom really bad,” and that Henderson responded that she

would “let the officers know.” Taylor didn’t allege that

Henderson failed to notify the officers. And even if Henderson

did fail to do so (which is not in the record), such would amount,

at most, to a showing of negligence, not deliberate indifference.

That is not enough to create an Eighth Amendment violation.

Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019). Summary

judgment for Henderson on the restroom claim was proper.

21a

themselves. Instead, the prisoners had to urinate and

defecate in the ground beneath them, right next to

their fellow inmates. See id. We held that the

prisoners’ Eighth Amendment rights had been

violated, even though the episode lasted a mere

seventeen hours. Id. at 353-54. The “conditions

constitute[d] a deprivation of basic elements of

hygiene.” Id. at 352 (quotation marks omitted).

So too for Taylor. Granted, the circumstances

differ in some ways from those in Palmer. See id.

Taylor was alone in his prison cell the day he was

allegedly refused a trip to the restroom; he was not

outdoors overnight, crammed into a small space with

other inmates. Yet the most salient facts are similar.

Taylor alleged that sewage from the clogged drain

was overflowing. Had he urinated in the drain, he

would have been resigned to sleep naked in his (and

others’) urine overnight. So, he refused (until finally

involuntarily urinating on himself). The prisoners in

Palmer were faced with a similarly grisly choice:

either relieve themselves on the very ground where

they would sleep, or, hold it in for seventeen hours.

Such circumstances exposed the Palmer prisoners to

a substantial risk of serious harm and deprived them

of the minimal civilized measure of life’s necessities.

See id. A reasonable jury could find the same here.

Taylor also has met his burden to show genuine

factual disputes on subjective deliberate indifference.

See Arenas, 922 F.3d at 620. Taylor alleged that he

told Riojas, Martinez, and Ortiz that he couldn’t

urinate in the drain because of the overflow and that

he badly needed to use the restroom. Yet those

defendants repeatedly refused to escort him to the

22a

restroom, instead instructing him to pee in the

clogged drain like everyone else.

We found deliberate indifference in similar

circumstances in Palmer, 193 F.3d at 353. The prison

officials there were deliberately indifferent because

they “ordered the sleep-out,” refused to let prisoners

relieve themselves outside the confined area, and

were “present during the evening.” Id. Similarly,

Riojas, Martinez, and Ortiz allegedly refused to let

Taylor urinate any-where other than into his clogged

drain, knew that meant he would have to sleep in his

own urine, and were present for those events. Taylor

has established fact issues as to deliberate

indifference.

Having found a constitutional violation, we also

conclude that Palmer clearly established the

underlying Eighth Amendment right, even defining it

narrowly (as we must). See id. at 352-53. Under

Palmer, prison officials cannot fail to provide inmates

a minimally sanitary way20 to relieve themselves for

a period of seventeen hours, leaving them no choice

but to sleep in their own waste overnight. See id. The

time period Taylor alleged is even longer: a full day.

20 Nothing in this opinion requires prison officials to provide a

prisoner with a squeaky-clean toilet nor to escort him to the

restroom whenever he wishes. This case is extraordinary: McCoy

alleges that he was refused a trip to the restroom for twenty-four

hours and was provided no other sanitary way to relieve himself,

which forced him to urinate on himself and on the very ground

where he had to sleep. We held that similar circumstances

violated the Constitution in Palmer, and we find the same here.

We go no further.

23a

In defending the summary judgment, the

defendants contend that “Taylor was constantly

refusing to take trips to the restroom” on the day in

question. But even if we found that view of the

evidence more persuasive (as the district court did21),

it would not be for us to resolve at summary

judgment.22 Indeed, the district court noted that

“R[i]ojas, Ortiz, and Martinez [did] not directly deny

[Taylor’s] allegations that they refused him the

opportunity to use the restroom … or that they

advised him to pee in the drain like everyone else.”

The district court should have seen the implications—

a genuine factual dispute.

The defendants also maintain that to state a

claim, Taylor was “required to establish a physical

injury beyond de minimis.” They’re right that, under

the Prison Litigation Reform Act, 42 U.S.C. §

The district court credited the defendants’ security-note

evidence as showing that Taylor had repeatedly refused to use

the restroom on September 12 and had used the restroom one

time that evening. By contrast, the court characterized Taylor’s

pleadings as providing “unsupported and conclusory assertions

that [Taylor] was denied the opportunity to go to the restroom.”

We disagree. Taylor’s allegations were hardly conclusory; they

recited specific instances in which Taylor told Riojas, Martinez,

and Ortiz that he badly needed to use the restroom and in which

they refused to take him. And allegations in verified pleadings

are competent summary judgment evidence, so it was wrong for

the district court to dismiss them. See Lodge Hall Music, Inc. v.

Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987).

21

22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t

the summary judgment stage the judge’s function is not himself

to weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.”).

24a

1997e(e), Taylor, to recover for emotional suffering,

must show a more-than-de-minimis physical injury.

See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). But Taylor has shown such an injury. As a

result of holding in his urine for so long, his bladder

became distended, and he had to be catheterized.23

Accordingly, there are genuine factual disputes

whether Riojas, Martinez, and Ortiz violated Taylor’s

Eighth Amendment rights in refusing to escort him to

the restroom for twenty-four hours.24 Those

defendants are not entitled to QI, and the district

court erred in granting them summary judgment on

that claim.

B. Chest Pain

The district court granted summary judgment for

Riojas, Martinez, and Henderson on Taylor’s claim

that they violated the Eighth Amendment by ignoring

his complaints of chest pain on September 12, 2013.

On appeal, Taylor only briefly mentions that issue

and fails to argue any error relating to it, so it is

waived.

23 Cf. Edwards v. Stewart, 2002 WL 1022015, at *2 (5th Cir. May

10, 2002) (holding that injuries of “cuts to [the prisoner’s] fingers

and thumb, headache, neck pain, and lacerations to the ear,”

weren’t de minimis, particularly because the prisoner had

needed “medical treatment for the injuries”).

24 For the reasons described above, however, we affirm summary

judgment for Henderson on the restroom-trip claim.

25a

C. Delay in Medical Treatment

Taylor challenges the summary judgment for

nurse Stephanie Orr, who Taylor alleged had violated

the Eighth Amendment in failing immediately to

examine and treat him after he asked to see a doctor.

Taylor contended that on Saturday, September 14,

2013, he was having bladder pain and decided he

needed to see a doctor. Orr visited Taylor in his

seclusion cell, where Taylor asked to meet with a

doctor. Taylor did not allege that he told Orr why he

needed one. Orr replied that Taylor should write up a

“nurse sick-call” two days later on Monday—which

was the standard procedure. At that point, the

conversation ended.

Later that day, at about 4:00 p.m., Taylor’s

bladder pain worsened. He contacted Orr again, and

this time he explained why he needed a doctor. Orr

allegedly responded: “How come you didn’t say

anything sooner?” Orr then assessed Taylor,

determined he had a distended bladder, and sent him

to the ER, where he was catheterized.

Taylor contends on appeal that Orr was

deliberately indifferent in failing to assess him

immediately after he requested a doctor. The district

court rejected that contention and granted summary

judgment for Orr based on QI. It held that, at most,

Taylor’s allegations showed that Orr had behaved

negligently and not with deliberate indifference.

We agree with the district court and affirm

summary judgment for Orr. Merely negligent medical

treatment of prisoners “does not constitute deliberate

26a

indifference.” Arenas, 922 F.3d at 620. Instead, an

inmate “must show that the officials refused to treat

him, ignored his complaints, intentionally treated

him incorrectly,” or otherwise “evince[d] a wanton

disregard for any serious medical needs.” Id.

(quotation marks omitted). “[D]elay in medical care

can only constitute an Eighth Amendment violation if

there has been deliberate indifference, which results

in substantial harm.” Mendoza v. Lynaugh, 989 F.2d

191, 195 (5th Cir. 1993).

Taylor has failed to reveal any factual dispute

whether Orr violated his Eighth Amendment rights.

Even accepting his allegations at face value, they

show only negligence, not deliberate indifference. See

Arenas, 922 F.3d at 620. Taylor did not allege that Orr

knew about his bladder pain until 4:00 p.m., when he

reached out to her a second time. Orr admonished him

for failing to tell her earlier about the bladder pain,

and she promptly and dutifully evaluated him and

sent him to the ER. Deliberate indifference is a high

bar, and Taylor does not come close to demonstrating

it. See id.

V. Claim of an Unconstitutional Policy

Taylor contends that the district court improperly

granted summary judgment for Warden Robert

Stevens based on QI. Taylor avers that Stevens

promulgated and implemented unconstitutional

policies that facilitated Taylor’s mistreatment at the

Montford Unit. The district court rejected that claim,

reasoning that because Taylor hadn’t shown that any

of the other defendants had violated Taylor’s rights,

27a

Stevens—their supervisor—couldn’t have violated

them, either.

To be sure, above we concluded that a reasonable

jury could have found that several defendants

violated Taylor’s constitutional rights. Yet we may

affirm on any basis that the record supports, see

Lincoln v. Scott, 887 F.3d 190, 195 (5th Cir. 2018), and

here we choose to do so, because Taylor has failed to

point our attention to any specific policy.

Under § 1983, “[s]upervisory liability exists even

without overt personal participation in the offensive

act if supervisory officials implement a policy so

deficient that the policy itself is a repudiation of

constitutional rights and is the moving force of the

constitutional violation.” Thompkins v. Belt, 828 F.2d

298, 304 (5th Cir. 1987) (cleaned up). But as a

threshold matter, a plaintiff cannot avoid summary

judgment merely by asserting the legal conclusion

that an unconstitutional policy existed.25 That is

precisely what Taylor does. The district court

therefore properly granted summary judgment for

Stevens on the basis of QI.

25 See Booker v. Koonce, 2 F.3d 114, 117 (5th Cir. 1993) (pointing

out that conclusory allegations are not enough to defeat

summary judgment); see also Oliver v. Scott, 276 F.3d 736, 742

(5th Cir. 2002) (affirming dismissal because the complaint

“fail[ed] to identify any specific policy or to explain how those

policies led to constitutional violations”); Sun v. United States,

No. 94-10604, 1995 WL 103351, at *4 (5th Cir. Mar. 1, 1995) (per

curiam) (affirming summary judgment on the basis of QI

because “Sun’s unsupported allegations of the existence of a

policy are merely conclusional.”).

28a

****

In summary, for the reasons stated, we decide as

follows:

 We AFFIRM the summary judgment for Riojas,

Cortez, Hunter, Davidson, Swaney, Martinez,

Stevens, and Henderson on Taylor’s claim related

to the conditions of his cells.

 We REVERSE and REMAND the summary

judgment for Riojas, Martinez, and Ortiz on

Taylor’s claim related to their failure to take him

to the restroom, but we AFFIRM summary

judgment for Henderson on that claim.

 We AFFIRM the summary judgment for Riojas,

Martinez, and Henderson on Taylor’s claim

related to their failure to treat his chest pain.

 We AFFIRM the summary judgment for Orr on

Taylor’s claim related to Orr’s failure to treat his

bladder pain.

 We AFFIRM the summary judgment for Stevens

on Taylor’s claim that Stevens promulgated an

unconstitutional policy.

We place no limitation on the matters that the district

court can consider consistent with this opinion, nor do

we suggest what decisions that court should make.

29a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TRENT TAYLOR,

Institutional ID

No. 1691384,

SID NO. 6167597,

Previous TDCJ No.

1336391,

§

§

§

§

§

§

§

Plaintiff,

§

§ CIVIL ACTION

v.

§ NO. 5:14-CV-149-C

§

ROBERT STEVENS, et al., §

§

Defendants.

§ ECF

ORDER

Came to be considered on this day, Plaintiff Trent

Taylor’s action under 42 U.S.C. § 1983 against

Defendants Robert Stevens, Robert Rojas1, Ricardo

Cortez, Stephen Hunter, Larry Davidson, Shane

Swaney, Franco Ortiz, Joe Martinez, Creastor

Henderson, Stephanie Orr, and Melissa Olmstead.

Defendants were all correctional officers and/or

1 Plaintiff spells this Defendant’s last name “Riojas” while the

Attorney General spells the name “Rojas.” Although the Court

has used the Plaintiff’s spelling in prior Orders, the Court adopts

the correct spelling of “Rojas.”

30a

officials employed at the John T. Montford Unit of the

TDCJ-ID at the time of the events giving rise to this

complaint.

I. BACKGROUND

Trent Taylor, acting pro se, filed a civil rights

complaint pursuant to 42 U.S.C. § 1983 on September

2, 2014, and was granted permission to proceed in

forma pauperis. Based on the complaint and

Plaintiff’s testimony during a Spears2 hearing, the

Court found that Plaintiff had raised claims that were

sufficient to require responsive pleadings for the

alleged claims of constitutional violations. Following

the filing of answers and motions to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6) by most of

the Defendants, the United States Magistrate Judge,

noting that Defendants had failed to consent to

proceed before her, entered a Report and

Recommendation on January 22, 2016. On March 29,

2016, the Court adopted the Report and

Recommendation and dismissed certain of the claims

and Defendants pursuant to Federal Rule of Civil

Procedure 54(b).3 The only claims remaining in this

action are the following:

(1) Plaintiff’s

individual

capacity

claims

concerning cell conditions and deliberate

indifference to serious medical needs against

2 Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985).

3 Plaintiff filed a notice of interlocutory appeal from that Order

and his appeal remains pending before the United States Court

of Appeals for the Fifth Circuit. See U.S.C.A. No. 16-10498.

31a

Defendants Robert Stevens, Robert Rojas,

Ricardo Cortez, Stephen Hunter, Larry

Davidson, Shane Swaney, Franco Ortiz4, Joe

Martinez,

Creastor

Henderson,

and

Stephanie Orr; and

(2) Plaintiff’s

individual

capacity

claim

concerning excessive use of force against

Defendant Melissa Olmstead.

Now before the Court are the following:

(1) Defendants Robert Stevens, Robert Rojas,

Ricardo Cortez, Stephen Hunter, Larry

Davidson, Melissa Olmstead, and Shane

Swaney’s Motion for Summary Judgment5

filed on October 10, 2016;

(2) Defendants

Creastor

Henderson

and

Stephanie Orr’s Motion for Summary

Judgment filed on November 14, 2016; and

(3) Plaintiff’s Brief in Opposition to Defendants’

Motion for Summary Judgment filed on

November 2, 2016.

(4) Plaintiff’s Motion to Excuse Local Rule of

Judges Copy and Motion to Allow Plaintiff to

4 The Court notes that Defendant Franco Ortiz has been served

but has not made an appearance in this case.

5 The Court notes that Defendant Joe Martinez has been served

and has previously filed responsive pleadings but was not

included as a party to either Motion for Summary Judgment.

32a

Have His Exhibits

November 2, 2016.

Returned

filed

on

Having considered the pleadings and records filed

in this case, the Court finds that all of Plaintiff’s

claims, except for his claims of excessive use of force

against Defendant Melissa Olmstead in her

individual capacity, should be dismissed for the

reasons set forth below.

II. SUMMARY OF COMPLAINT

The incidents giving rise to Plaintiff’s complaint

were described in detail in the Report and

Recommendation entered January 22, 2016, and

generally consist of claims of cruel and unusual

punishment, deliberate indifference, and excessive

use of force while he was incarcerated at the Montford

Unit. Pursuant to that Report and Recommendation

a number of claims and Defendants were dismissed.

Plaintiff’s remaining claims may be summarized as

follows:

Cruel and Unusual Punishment

Plaintiff alleges that he was subjected to cruel

and unusual punishment in violation of the Eighth

Amendment when he was forced by Defendants

Stevens, Rojas, Cortez, Hunter, Davidson, Swaney,

Martinez, and Henderson to live in what he described

as filthy conditions for several days between

September 6, 2013, and September 14, 2013, while he

was incarcerated at the John T. Montford Unit in

Lubbock, Texas. Plaintiff alleges that at one point

during that time he was denied a bathroom break for

33a

24 hours, causing him to feel chest pains and burning

eyes and throat and ultimately leading to his

urinating on himself. Specifically, Plaintiff claims

that Defendants knowingly placed him in two

different cells that were severely unsanitary. The first

cell (Cell B-2, 45) that he was placed in for almost 4

days from 11:00 p.m. on September 6, 2013, until

sometime between noon and 2:00 p.m. on September

10, 2013, was soiled with fecal matter on the floor,

ceiling, walls, and water faucet. He alleges that after

he was removed from the cell for a short period of

time, officials attempted to return him to the same

dirty cell; however, he refused, falsely claiming that

he would harm himself. On September 11, 2013, at

approximately 1:55 p.m., he was moved to a seclusion

cell (Cell D-2, 51) and remained there until

approximately 3:00 p.m. on September 13, 2013. The

second cell was a seclusion cell equipped with only a

drain hole in the floor that was clogged with raw

sewage that seeped onto the floor where he was forced

to sleep, naked and with only a suicide blanket to stay

warm. While he was confined in the second cell,

Plaintiff claims, he was refused a bathroom break for

24 hours, despite notifying officials that he needed to

go and refusing their alleged instructions to urinate

in the backed-up drain like everyone else. Plaintiff

further alleges that as a result of holding his bladder

for so long he experienced chest pains and severe

bladder pain and because of the pain finally doubled

over and urinated on himself.

Deliberate Indifference

Plaintiff next claims that Defendants were

deliberately indifferent to his health and safety needs

34a

when they forced him to remain in the filthy cells

despite his complaints and refused him bathroom

breaks for 24 hours. Plaintiff argues that as a result

of holding his bladder for so long, he suffered from a

distended bladder and had to be taken to the

emergency room and catheterized, but not until after

he had made several requests for medical attention on

September 13, 2013 that were allegedly disregarded

by Defendant Orr. According to Plaintiff he suffered a

lasting injury as a result of the foregoing events in the

form of bladder and urinary incontinence and spasms.

Plaintiff also claims that his complaints of chest pains

were intentionally ignored by Defendants Rojas,

Martinez, and Henderson.

Excessive Use of Force

Finally, Plaintiff alleges that Defendant Melissa

Olmstead used excessive force on October 14, 2013,

when she rammed a steel bar forward and hit him in

the testicles after Plaintiff and Olmstead argued by

his cell. Plaintiff claims that he was transported a

couple of hours later to the emergency room, where he

was prescribed an ice pack which he was to use for 24

hours, as well as a 3-day prescription for ibuprofen.

He claims that he sustained a permanent injury to his

right testicle from the assault and still suffers pain

with urination and ejaculation.

III. MOTIONS FOR SUMMARY JUDGMENT

A motion for summary judgment permits a court

to resolve a lawsuit without conducting a trial if the

court determines (1) there is no genuine dispute as to

any material facts and (2) the moving party is entitled

35a

to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

See Crawford-El v. Britton, 523 U.S. 574, 600 (1998)

(“[S]ummary judgment serves as the ultimate screen

to weed out truly insubstantial lawsuits prior to

trial.”). A fact is “material” if it might affect the

outcome of the suit under the governing law. Id. at

248. A dispute over a material fact is “genuine” if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party. Id. at 250. “[T]he

mere existence of some alleged factual dispute

between the parties will not defeat an otherwise

properly supported motion for summary judgment;

the requirement is that there be no genuine issue of

material fact.” Id. at 247-48 (emphasis in original).

“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party,

there is no ‘genuine issue for trial.’” Scott v. Harris,

550 U.S. 372, 380 (2007) (quoting Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986) (footnote omitted)).

The party moving for summary judgment must

first demonstrate that “there is an absence of evidence

to support the non-moving party’s cause.” Celotex

Corp. v. Garrett, 477 U.S. 317, 325 (1986). The moving

party satisfies this requirement by (1) submitting

evidentiary documents that negate the existence of

some material element of the non-moving party’s

claim or (2) pointing out the absence of evidence to

support the non-moving party’s claim, if the nonmoving party will bear the burden of proof on that

claim at trial. King v. Dogan, 31 F.3d 344, 346 (5th

Cir. 1994). Once the moving party satisfies this initial

requirement, the burden shifts to the non-moving

36a

party to “go beyond the pleadings and designate

specific facts showing that there is a genuine issue for

trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994). If the moving party supports his

motion with evidence, the non-moving party cannot

simply rely on conclusory legal allegations but must

present affirmative evidence in order to defeat the

motion for summary judgment. Anderson v. Liberty

Lobby, Inc., 477 U.S. at 248-255.

“[I]n ruling on a motion for summary judgment,

‘[t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor.’”

Tolan v. Cotton, — U.S. —, 134 S. Ct. 1861, 1863

(2014) (per curiam) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. at 255). In drawing all justifiable

inferences in favor of the nonmovant, a court “must

distinguish between evidence of disputed facts and

disputed matters of professional judgment.” Beard v.

Banks, 548 U.S. 521, 529-30 (2006).

“On summary judgment, factual allegations set

forth in a verified complaint may be treated the same

as when they are contained in an affidavit,” Hart v.

Hairston, 343 F.3d 762, 765 (5th Cir. 2003). See

Falcon v. Holly, 480 Fed. Appx. 325, 326 (5th Cir.

2012) (per curiam) (“[A]llegations in [a] verified

complaint and other verified pleadings as well as …

sworn testimony at [a] Spears … hearing constitute

competent summary judgment evidence.”); Jones v.

Collins, 132 F.3d 1048, 1052 (5th Cir. 1998) (holding

that a district court may consider pleadings,

depositions, answers to interrogatories, admissions

on file, and affidavits, if any, when ruling on a motion

for summary judgment). A nonmoving party cannot,

37a

however, ‘“defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or “only a

scintilla of evidence.”’” Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007) (quoting Turner v. Baylor

Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.

2007) (quoting Little v. Liquid Air Corp., 37 F.3d at

1075)).

A. Defendants’

Judgment

Motions

for

Summary

In their Motions for Summary Judgment,

Defendants assert that they are entitled to summary

judgment because (a) Plaintiff has failed to exhaust

his administrative remedies, (b) they are entitled to

qualified immunity, and (c) there is no evidence that

Defendant Olmstead used any force against Plaintiff.6

In sum, Defendants argue that there is no genuine

issue of material fact remaining for trial.

In support of their Motion for Summary

Judgment, Defendants Stevens, Rojas, Cortez,

Hunter, Davidson, Olmstead, and Swaney included

577 pages of exhibits, including the following:

6 Although Defendants included arguments regarding Plaintiff’s

request for injunctive relief, the Court notes that such claims

were explicitly dismissed as moot pursuant to the Order and

Judgment entered March 29, 2016. Consequently, no further

discussion of injunctive relief is warranted.

38a

Exhibit A: Trent Taylor’s Texas Department of

Criminal Justice No Records Affidavit

for Use of Force Report, TDCJ#:

01691384 (Bates Stamped Ex. A 001).

Exhibit B: Trent Taylor’s Texas Department of

Criminal Justice Medical Records,

TDCJ#: 01691384 from April 2013 to

January 2015 with Supporting

Business Records Affidavit (Bates

Stamped Ex. B 001-360).

Exhibit C: Trent Taylor’s Texas Department of

Criminal Justice Grievance Records,

TDCJ#: 01691384 from April 2013 to

January 2015 with Supporting

Business Records Affidavit (Bates

Stamped Ex. C 001-194).

Exhibit D: Trent Taylor’s Texas Department of

Criminal Justice No Records Affidavit

for Office of the Inspector General,

TDCJ#: 01691384 (Bates Stamped Ex.

D 001).

Exhibit E: Trent Taylor’s Texas Department of

Criminal Justice Emergency Action

Center, TDCJ#: 01691384 (Bates

Stamped Ex. E 001-005).

Exhibit F: Trent Taylor’s Texas Department of

Criminal Justice Patient Liaison

Records, TDCJ#: 01691384 (Bates

Stamped Ex. F 001-010).

39a

In support of their Motion for Summary

Judgment, Defendants Henderson and Orr included

575 pages of exhibits, including the following:

Exhibit A: Trent Taylor’s Texas Department of

Criminal Justice No Records Affidavit

for Office of the Inspector General,

TDCJ#: 01691384 (Bates Stamped Ex.

A 001).

Exhibit B: Trent Taylor’s Texas Department of

Criminal Justice Medical Records,

TDCJ#: 01691384 from April 2013 to

January 2015 with Supporting

Business Records Affidavit (Bates

Stamped Ex. B 001-360).

Exhibit C: Trent Taylor’s Texas Department of

Criminal Justice Grievance Records,

TDCJ#: 01691384 from April 2013 to

January 2015 with Supporting

Business Records Affidavit (Bates

Stamped Ex. C 001-194).

Exhibit D: Trent Taylor’s Texas Department of

Criminal Justice Emergency Action

Center, TDCJ#: 01691384 (Bates

Stamped Ex. D 001-005).

Exhibit E: Trent Taylor’s Texas Department of

Criminal Justice Patient Liaison

Records, TDCJ#: 01691384 (Bates

Stamped Ex. E 001-010).

40a

B. Plaintiff’s Brief in

Defendants’

Motion

Judgment

Opposition to

for

Summary

Plaintiff filed his response to Defendants Robert

Stevens, Robert Rojas, Ricardo Cortez, Stephen

Hunter, Larry Davidson, Melissa Olmstead, and

Shane Swaney’s Motion for Summary Judgment on

November 2, 2016. He did not file a response to

Defendants Creastor Henderson and Stephanie Orr’s

Motion for Summary Judgment. He restated the facts

stated in his prior pleadings, repeated his claims

against the Defendants, and argued that he was in

fact subjected to cruel and unusual punishment and

deliberate indifference by the Defendants. Plaintiff

disputed the assertion that he had not properly

exhausted his claims and also disputed Defendants

Olmstead’s assertion that no use of force occurred and

that medical record evidence did not support his claim

of injury. In support of his response, Plaintiff included

a declaration made under penalty of perjury, as well

as copies of relevant grievances and medical records.

IV. ANALYSIS

A. Exhaustion

Defendants argue that Plaintiff’s claims against

all of the Defendants other than Defendant Olmstead

and Defendant Rojas should be dismissed because he

failed to properly exhaust his administrative

remedies. While Defendants specifically note that

Plaintiff filed timely grievances against Defendant

Olmstead regarding his excessive use of force claim

and against Defendant Rojas for his deliberate-

41a

indifference claim stemming from his alleged failure

to take Plaintiff to the restroom, they contend,

however, any grievances regarding the remaining

Defendants fail to satisfy the exhaustion requirement

because they were either untimely or failed to name

the Defendants specifically in the grievances that

were filed.

In his objection, Plaintiff refers to copies of

grievances attached to his original complaint, and

counters the arguments as follows:

(1) Grievance No. 2014027417 regarding the

unconstitutional

conditions

of

his

confinement lists Defendants Cortez, Hunter,

Davidson, and Stevens, and was written for

him on September 12, 2013, because he was

not permitted to have writing materials.

Although it was allegedly not handled

properly, Plaintiff contends that his failure to

properly exhaust in this instance should be

excused because it was not returned to him

until after the deadline to file had passed,

making exhaustion unavailable to him.

(2) He exhausted his claim pertaining to

Defendant Rojas’ refusal to allow him to use

the restroom resulting in sharp pain and

causing Plaintiff to eventually urinate on

himself in Step 1 Grievance No. 2014013418

filed on September 20, 2013, and through the

Step 2 Grievance filed on October 17, 2013. In

said grievance, Plaintiff says he is “writing

this grievance on TDCJ as a whole,” and

mentions the overflowing drain in his cell,

42a

and an attempt by Defendant Rojas to “spot

dry raw sewage” without the use of chemicals.

Plaintiff’s Step 2 Grievance was timely filed,

and returned to him on December 3, 2013.

42 U.S.C. § 1997e(a), as amended by the Prison

Litigation Reform Act (“PLRA”), provides that “[n]o

action shall be brought with respect to prison

conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such

administrative remedies as are available are

exhausted.” The PLRA does not, however, specify who

must be named in a prison grievance in order to

exhaust properly the prison grievance system. See

Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 922-23

(2007). Instead, “it is the prison’s requirements, and

not the PRLA, that define the boundaries of proper

exhaustion.” Id. at 923. Defendants do not argue, and

nothing in the record indicates, that the Texas

grievance procedures require the prisoner to

specifically name a particular official.

“[T]he primary purpose of a grievance is to alert

prison officials to a problem, not to provide personal

notice to a particular official that he may be sued; the

grievance is not a summons and complaint that

initiates adversarial litigation.” Johnson v. Johnson,

385 F.3d 503, 522 (5th Cir. 2004). However, a

grievance “must provide administrators with a fair

opportunity under the circumstances to address the

problem that will later form the basis of the suit, and

for many types of problems this will often require, as

a practical matter, that the prisoner’s grievance

identify individuals who are connected with the

43a

problem.” Id. As acknowledged by the Supreme Court,

Congress intended the administrative process to

“filter out some frivolous claims and foster betterprepared litigation once a dispute did move to the

courtroom, even absent formal factfinding.” Booth v.

Churner, 532 U.S. 731, 737 (2001).

The Court has reviewed the grievance records

provided by Plaintiff and as part of the authenticated

records provided by the Defendants. Defendants have

offered nothing to show that Plaintiff’s reference to

the clogged drain and fecal matter in his Step 1

Grievance No. 2014013418 did not give prison

officials notice and an opportunity to address his

complaint about the alleged conditions of his

confinement or deliberate indifference regarding

failure to allow him to use the restroom. In fact, the

response to the Step 1 grievance specifically mentions

that staff indicated he was agitated and aggressive

and thus was not allowed out of his cell until he

calmed down, at which point he was allowed to be

escorted to the restroom. It also noted that staff

observed the drain area and indicated that it was dry

and his cell was clean. Moreover, even though

Grievance No. 2014027417 appeared to be out of time,

Defendant Stevens responded anyway, stating that

Plaintiff’s concerns were reviewed and noted, but that

staff denied he was placed in a contaminated cell and

that no evidence was found to substantiate his

allegations. Plaintiff was even permitted to file a Step

2 Grievance on December 9, 2013, that was returned

to him on January 28, 2014, with the response that

his claim had been reviewed and no evidence was

found to support his claims that he was placed in a

cell contaminated with bodily fluids.

44a

The TDCJ did not reject Plaintiff’s claims for

failure to name any specific individuals involved.

These facts weigh against the argument that these

purported defects in the grievances constituted a

failure to exhaust. See Gates v. Cook, 376 F.3d 323,

331 n. 6 (5th Cir. 2004); see also Patterson v. Stanley,

547 F. App’x, 510, 512 (5th Cir. 2013) (finding that

even though state inmate’s grievance alleging Eighth

Amendment violations based on discontinuance of his

prescription for sunglasses did not set forth names of

prison medical director or physician’s assistant

accused of the misconduct, grievance sufficiently

alerted prison staff to the problem, as required for

inmate to exhaust administrative remedies under

PLRA, by simply claiming it involved “medical staff”).

In sum, the responses to each of the grievances

discussed above indicate that the purpose of

exhaustion—affording prison officials notice and an

opportunity to resolve a problem prior to litigation—

was satisfied. Accordingly, the Court finds that

Plaintiff properly exhausted his complaints as to all

of the Defendants.

B. Qualified Immunity

Plaintiff alleges that his being held in two

separate cells that he described as filthy for a time

period of approximately 6 days amounted to cruel and

unusual punishment. He also alleges that the

Defendants were deliberately indifferent to his health

when they refused to take him to the bathroom for 24

hours and ignored his complaints of chest pains and

painful urination and that Defendant Olmstead

subjected him to excessive force.

45a

All of the Defendants raise the affirmative

defense of qualified immunity and argue that they are

entitled to summary judgment.

“The doctrine of qualified immunity protects

government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Lytle

v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir.

2009). “Qualified immunity balances two important

interests—the need to hold public officials

accountable when they exercise power irresponsibly

and the need to shield officials from harassment,

distraction, and liability when they perform their

duties reasonably.” Id. It “is both a defense to liability

and a limited ‘entitlement not to stand trial or face

the other burdens of litigation.’” Ashcroft v. Iqbal, 556

U.S. 662, 672 (2009) (quoting Mitchell v. Forsyth, 472

U.S. 511, 526 (1985)).

In Saucier v. Katz, 533 U.S. 194 (2001), the

Supreme Court established a two-step sequence for

resolving qualified immunity claims: “First, a court

must decide whether the facts that a plaintiff has

alleged … make out a violation of a constitutional

right[; and] [s]econd, if the plaintiff has satisfied this

first step, the court must decide whether the right at

issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” Pearson v.

Callahan, 555 U.S. at 232 (quoting and citing Saucier

v. Katz, 533 U.S. at 201). This two-step sequence is

not mandatory, however, and a district court has the

46a

discretion to decide “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.” Id. at 236. See Reichle v. Howards, ___ U.S.

___, 132 S. Ct. 2088, 2093 (2012) (quotation omitted)

(noting that a court “may grant qualified immunity on

the ground that a purported right was not ‘clearly

established’ by prior case law, without resolving the

often more difficult question whether the purported

right exists at all”). See Griggs v. Brewer, 841 F.3d

308, 313 (5th Cir. 2016) (citing Pearson v. Callahan,

555 U.S. 223, 236 (2009) (“[t]he two steps of the

qualified immunity inquiry may be performed in any

order.”)

“A Government official’s conduct violates clearly

established law when, at the time of the challenged

conduct, ‘[t]he contours of [the] right [are] sufficiently

clear’ that every ‘reasonable official would have

understood that what he is doing violates that right.’”

Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074,

2083 (2011) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). Although a case directly on point is

not required, “existing precedent must have placed

the statutory or constitutional question beyond

debate.” Id. Thus, “the right allegedly violated must

be established, ‘“not as a broad general proposition,’”

… but in a ‘particularized’ sense so that the ‘contours’

of the right are clear to a reasonable official.” Reichle

v. Howards, 132 S. Ct. at 2094 (quoting Brousseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam), and

Anderson v. Creighton, 483 U.S. at 640). “Qualified

immunity gives government officials breathing room

to make reasonable but mistaken judgments about

open legal questions [and,] when properly applied, it

47a

protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” (Ashcroft v. al-Kidd, 563

U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).

Cell Conditions

Defendants argue that they are entitled to

qualified immunity for Plaintiff’s claims regarding

the conditions of his cells because he has provided

nothing more than conclusory allegations regarding

said conditions and he has failed to demonstrate that

he suffered any injury as a result. In other words,

even if he could demonstrate that the cells were filthy,

he has not shown that the conditions he allegedly

faced were a violation of his constitutional rights and

therefore the facts as pleaded are not sufficient to find

them liable. Defendants provided little in the way of

specific summary judgment evidence to support their

assertion that the cells were not, in fact, covered with

feces, and Defendants even place special emphasis on

notes from a mental health evaluation completed

several months after the incidents giving rise to this

complaint to support the puzzling contention that

Plaintiff “is a compulsive cleaner who reports that he

cleans his cell from top to bottom three times a day”

in order to demonstrate that his claims are unlikely.

However, there is no evidence that Plaintiff was a

compulsive cleaner before his incarceration in the

Montford Unit or that he was provided cleaning

materials during the time in question. Nevertheless,

the Court finds merit in Defendants’ general

argument and reliance on established precedent that

the alleged cell conditions do not rise to the level of a

constitutional violation.

48a

“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.” Woods v. Edwards, 51 F.3d 577, 581

(5th Cir. 1995) (internal quotations omitted). A

prisoner must satisfy a two-part test, consisting of an

objective and a subjective component, to state a claim

that the conditions of his confinement violated the

Eighth Amendment. Davis v. Scott, 157 F.3d 1003,

1006 (5th Cir. 1998); Adeleke v. Heaton, 352 Fed.

Appx. 904, 907 (5th Cir. 2009). First, he must

demonstrate the objective component of conditions

were “so serious as to deprive prisoners of the

minimal measure of life’s necessities, as when it

denies the prisoner some basic human need.” Harper

v. Showers, 174 F.3d 716, 720 (5th Cir. 1999).

“Second, under the subjective standard, the prisoner

must establish that the responsible prison officials

acted with deliberate indifference to his conditions of

confinement.” Id. With respect to the deliberate

indifference standard, “a prison official cannot be

found liable under the Eighth Amendment … unless

the official knows of and disregards an excessive risk

to inmate health or safety; … the official must both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994). Finally, in order

to state a claim, a prisoner must allege facts showing

that he received more than a de minimis injury due to

conditions. Alexander v. Tippah County, Miss., 351

F.3d 626, 631 (5th Cir. 2003).

49a

The Fifth Circuit has held that virtually

permanent conditions of cells that contained

excrement and other filth violate the Eighth

Amendment. In Harper v. Showers, 174 F.3d 716, 716

(5th Cir. 1999), there were “continual” conditions of

“filthy, sometimes feces-smeared cells,” and in Gates

v. Cook, 376 F.3d 323, 338 (5th Cir. 2004), there were

“‘extremely filthy’ [cells] with crusted fecal matter,

urine, dried ejaculate, peeling and chipping paint,

and old food particles on the walls.” By contrast, in

Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998),

the Fifth Circuit found no constitutional violation

when a prisoner was locked in a “management cell”

for three days, where the cell was, “according to

Davis, ‘just filthy, with ‘blood on the walls and

excretion on the floors and bread loaf on the floor.’”

Davis, 157 F.3d at 1004, 1006. The appeals court

quoted the Supreme Court’s holding that “‘the length

of confinement cannot be ignored.… A filthy,

overcrowded cell … might be tolerable for a few days

and intolerably cruel for weeks or months.’” Id. at

1006 (quoting Hutto v. Finney, 437 U.S. 678, 686-87

(1978)). The Fifth Circuit found that “Davis did not

suffer an extreme deprivation of any ‘minimal

civilized measure of life’s necessities’” when he was

confined in the cell for only three days. Id. (quoting

Wilson, 501 U.S. at 304; cf. Smith v. Copeland, 87

F.3d 265, 269 (8th Cir. 1996) (no Eighth Amendment

violation when prisoner was exposed for four days to

raw sewage from an overflowed toilet in his cell)).

While Plaintiff, unlike Davis, did not receive

cleaning supplies, his pleadings indicate that he was

exposed to the alleged conditions for only a matter of

days. He also indicated that he was allowed to shower

50a

twice, and Defendants did attempt to clean the cells

by using a towel to wipe the sewage from the floor and

also cleaning all but the ceiling. Moreover, Plaintiff

did not show that he suffered any injury as a result of

this brief exposure, other than burning eyes and

throat from the fumes coming from the smells

emanating from the backed-up drain. See also

McCord v. Maggio, 927 F.2d 844, 848 (5th Cir. 1991)

(remanding for determination of whether the plaintiff

suffered a “significant injury” under the legal

standard then in effect where inmate housed in

“harsh and occasionally disgusting conditions” over

an extended period of time, including a 10-month

period without a bunk during which he had to sleep

on a mattress on the floor despite flooding and sewage

backup); McClure v. Foster, Civ. A. No. 5:10-CV-78,

2011 WL 665819 (E.D. Tex., January 7, 2011), report

adopted at 2011 U.S. Dist. LEXIS 15437, 2011 WL

941442 (E.D. Tex., February 16, 2011), aff’d 465 F.

App’x 373, 2012 WL 1059408 (5th Cir., March 29,

2012). In McClure, the plaintiff complained he was

placed in a very cold concrete cell with no clothes and

the cell was dirty, with “pubic hair, hair, dirty, and

bits of molded food,” with “dry pee all over the toilet

seat and back as well as the floor.” He remained in the

cell for three days. The district court, citing Davis and

McCord, dismissed the lawsuit, and the Fifth Circuit

affirmed.

The Court finds that although the conditions of

Plaintiff’s confinement may have been quite

uncomfortable during the days he was held in the two

cells in question, the conditions did not violate the

Eighth Amendment’s prohibition against cruel and

unusual punishment. Accordingly, Plaintiff has failed

51a

to rebut Defendants’ assertion of qualified immunity

on his conditions-of-confinement claim, and their

Motions for Summary Judgment should be granted.

Deliberate Indifference

Defendants also argue that they are entitled to

qualified immunity as to Plaintiff’s claim that they

were deliberately indifferent to his health and safety

when (1) Defendants Rojas, Martinez, and Ortiz failed

to take him to the bathroom over a 24-hour period and

ignored his complaints of chest pains; (2) when

Defendant Henderson failed to assess his complaints

of chest pains on September 12, 2013; and (3) when

Defendant Orr failed to respond to his request for

medical care related to painful urination on

September 14, 2013.

“Deliberate indifference is an extremely high

standard to meet.” Domino v. Texas. Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001). The

plaintiff must establish that the defendants “refused

to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard

for any serious medical needs.” Id. (internal quotation

marks and citation omitted). Thus, neither an

incorrect diagnosis nor the failure to alleviate a

significant risk that an official should have perceived

but did not will be sufficient to establish deliberate

indifference. See id. Similarly, unsuccessful

treatment, medical malpractice, and acts of

negligence do not constitute deliberate indifference;

nor does a prisoner’s disagreement with his medical

treatment, absent exceptional circumstances. See

52a

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

“Medical records of sick calls, examinations,

diagnoses, and medications may rebut an inmate’s

allegations of deliberate indifference.” Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir.1995).

Plaintiff first complains that Defendants Rojas,

Ortiz, and Martinez refused to escort him to the

bathroom for approximately 24 hours while he was in

the seclusion cell, instead advising him to urinate into

the drain. Plaintiff refused to urinate into the drain

because he alleged it was already overflowing.

Plaintiff complains that holding his urine for an

extended amount of time resulted in a distended

bladder and ultimately causing him to urinate

involuntarily. Plaintiff alleges that the refusal to take

him to the restroom amounted to deliberate

indifference to his serious medical needs.

Defendants Rojas, Ortiz, and Martinez do not

directly deny Plaintiff’s allegations that they refused

him the opportunity to use the restroom on

September 12, 2013, or that they advised him to “pee

in the drain like everyone else.” Defendant Rojas,

however, provided summary judgment evidence in

the form of security notes for September 12 that

indicate Plaintiff was checked out fairly regularly and

that he “refused all” or specifically refused

restroom/toilet each time, except for at 1900 where it

indicates that he was taken to the bathroom.

Moreover, Defendants appear to argue that Plaintiff

did not suffer any injury as a result of their actions.

The Court agrees. Although Plaintiff preferred not to

urinate in the drain, Plaintiff has not provided

anything other than unsupported and conclusory

53a

assertions that he was denied the opportunity to go to

the restroom for 24 hours, rather than declining the

opportunity to do so. Moreover, he has not

demonstrated that it was not physically possible for

him to relieve himself in the drain as instructed and

thus prevent his discomfort and eventual bladder

distension. A prisoner seeking to recover damages on

a conditions-of-confinement claim must establish a

physical injury that is more than de minimis. See

Alexander v. Tippah County, Miss., 351 F.3d 626, 631

(5th Cir. 2003) (finding inmates who had to urinate

and defecate in a grate-covered hole in the floor and

suffered nausea and vomiting as a result did not

sustain an injury sufficient to trigger the protection of

the Constitution). In the instant case, the record does

not support a finding that Plaintiff’s distended

bladder was a physical injury; but even if it were, the

Court does not find it to be more than de minimus.

Next, Plaintiff claims that Defendants Rojas,

Martinez, and Henderson were deliberately

indifferent to his health and safety on September 12,

2013, when they intentionally ignored his complaints

of chest pains for two hours before Defendant

Henderson provided him with an assessment.

Plaintiff further complains that Defendant

Henderson was deliberately indifferent when she

failed to transfer him to the emergency room, despite

being advised to do so by a charge nurse, which

advisory was denied due to security being unable to

escort him. Plaintiff does not claim that he suffered

any injury related to the chest pains. According to

Plaintiff’s complaint, he began complaining of chest

pains around 19:30 hours, and Defendant Henderson

did not arrive to assess him until sometime between

54a

21:00 and 22:00. According to the competent

summary judgment evidence provided by Defendants,

a Daily Care / Note was entered by Defendant

Henderson at 21:21:20 describing her assessment of

Plaintiff, wherein he was assessed and provided with

medication. The notes also indicate that Plaintiff was

to be rechecked and, if any further complaints were

voiced, then to go to the emergency room for an EKG.

Plaintiff has not alleged, and the Court can find no

record of, any further complaints regarding chest

pains. As Plaintiff did not suffer any harm as a result

of a delay in medical treatment for his chest pains, he

cannot overcome Defendants Rojas, Martinez, and

Henderson’s entitlement to qualified immunity on

these claims.

Plaintiff next specifically claims that Defendant

Nurse Stephanie Orr was deliberately indifferent to

his health and safety when she failed to promptly

evaluate and treat him for bladder pain on September

14, 2013. Plaintiff complains that as a result of the

delay in treatment, he required treatment in the

emergency room in the form of catheterization.

According to his complaint, Plaintiff alleges that

he reported to Defendant Orr that he needed to see a

doctor at 10:30 hrs., to which she responded that he

should write a sick-call on Monday. Plaintiff asserts

that Defendant Orr knew that he could not have

writing materials while in seclusion. Plaintiff claims

that it wasn’t until Orr stopped by his cell at

approximately 16:00 hrs., when he asked to see a

male doctor, that Orr asked him why and Plaintiff

informed her that he was experiencing bladder pain.

At that point, Orr assessed him and determined that

55a

his bladder was distended and contacted the

emergency room to have him treated. Plaintiff claims

that Orr’s actions of (1) requiring him to write a sickcall when she should have known he could not have

writing materials; and (2) not asking him what was

wrong the first time he informed her that he needed

to see a doctor amounted to deliberate indifference to

his serious medical needs.

Defendant Orr argues that she is entitled to

qualified immunity because both Plaintiff’s pleadings

and the competent summary judgment evidence show

that Orr was not deliberately indifferent to his

medical condition, that she acted reasonably given

the information that she possessed at the time, and

that in any event she never violated any of his

constitutional rights. Indeed, the medical records

provided by Defendants reflect that Plaintiff was seen

cell-side by medical staff every 2-4 hours, as

evidenced by the Correctional Managed Care

Seclusion/Restraint Notations entered by unit

medical staff at 0:02 hrs., 2:06 hrs., 3:47 hrs, 5:32 hrs.,

6:52 hrs., 8:53 hrs., 10:54 hrs., 12:53 hrs., and 15:18

hrs., 17:05 hrs., 19:03 hrs., 21:02 hrs., and 23.32 hrs.,

and the Daily Care Notes entered by Defendant Orr

at 16:45 hrs. and 18:27 hrs. See Def. Exh. B 160-174.

Plaintiff did not allege that Defendant Orr was aware

that he was experiencing an inability to urinate at the

time he allegedly told her he needed to see a doctor at

10:30. While the notes presumably entered regarding

Orr’s cellside visit at 10:30 do not indicate that a

request was made for a doctor, the Court can only

conclude that Orr’s failure to ask him why he needed

to see a doctor at 10:30 hrs. may amount to

negligence, but it does not rise to the level of

56a

deliberate indifference. Plaintiff does not allege, and

the records do not reflect, that he indicated a need to

see a physician for the cellside visits by medical

providers that occurred between 10:30 and 16:45 hrs.

Plaintiff has thus not established that Defendant Orr

was even aware that he was experiencing painful or

difficulty urinating before the evaluation at

approximately 16:00 hrs., much less that she

deliberately disregarded an excessive risk to his

health and safety. Moreover, assuming arguendo that

there was a delay before Plaintiff was evaluated and

received the catheter, he has not shown that a fact

issue exists on the issues of whether the delay was

due to the deliberate indifference of Defendant Orr or

that the delay resulted in substantial harm. See

Mendoza v. Lynaugh, 989 F. 2d 191, 195 (5th Cir.

1993). At most, the delays or inadequate treatment

constitute negligence, which does not rise to the level

of deliberate indifference. See Stewart v. Murphy, 174

F.3d 530, 534 (5th Cir. 1999). Plaintiff has not shown

that the conduct of Defendant Orr violated a

constitutional right. Therefore, he fails to show that

she is not entitled to qualified immunity. See Lytle,

560 F.3d at 410.

In the motion for summary judgment, Defendant

Stevens does not specifically address Plaintiff’s claims

that he should be held liable as Warden of the

Montford Unit for implementing a widespread policy

of denying inmates prompt medical attention and

allowing inmates to be housed in inhumane

conditions. Nevertheless, the Court finds that the

competent summary judgment evidence submitted in

this case does not show that Defendant Stevens

committed any constitutional violation because the

57a

Court has found that Plaintiff has not demonstrated

that his conditions-of-confinement and deliberateindifference claims amount to constitutional

violations.

Excessive Use of Force

The Supreme Court has emphasized that the core

judicial inquiry in an Eighth Amendment excessiveuse-of-force claim is “whether force was applied in a

good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson

v. McMillian, 503 U.S. 1, 7 (1992). An excessive-useof-force claim has both subjective and objective

components. Id. at 8. In other words, there is the issue

of whether the officials acted with a “sufficiently

culpable state of mind” and if the alleged wrongdoing

was objectively “harmful enough” to establish a

constitutional violation. Id. A claimant must allege

and prove there was an “unnecessary and wanton

infliction of pain.” Id. at 5. In deciding whether the

use of force was wanton or unnecessary, a court may

consider “the need for application of force, the

relationship between that need and the amount of

force used, the threat reasonably perceived by the

responsible officials, and any efforts made to temper

the severity of a forceful response.” Id. at 7. (Internal

quotation and citation omitted). The absence of a

serious injury is relevant to but not dispositive of the

excessive-force claim. Id.

The Supreme Court added the following caveat

concerning the nature of the force used in a given

situation:

58a

That is not to say that every malevolent touch

by a prison guard gives rise to a federal cause

of action. See Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1973) (“Not every push or shove,

even if it may later seem unnecessary in the

peace of a judge’s chambers, violates a

prisoner’s constitutional rights”). The Eighth

Amendment’s prohibition of “cruel and

unusual punishment” necessarily excludes

from consitutional recognition de minimis

uses of physical force, provided that the use of

force is not of a sort “repugnant to the

conscience of mankind.”

Hudson v. McMillian, 503 U.S. at 9-10.

On remand in Hudson, the Fifth Circuit

concluded that the following factors are relevant in

the inquiry whether there was an excessive use of

force: “1. The extent of the injury suffered; 2. The need

for the application of force; 3. The relationship

between the need and the amount of force used; 4. The

threat reasonably perceived by the responsible

officials; and 5. Any efforts made to temper the

severity of a forceful response.” Hudson v. McMillian,

962 F.2d 522, 523 (5th Cir. 1992). See also Baldwin v.

Stalder, 137 F.3d 836, 839 (5th Cir. 1998). On the

other hand, the Fifth Circuit has repeatedly

emphasized that an inmate must have suffered more

than a de minimis physical injury. Gomez v.

Chandler, 163 F.3d 921, 924 (5th Cir. 1999). There

must always be some injury, albeit insignificant.

Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.

1992); Jackson v. Culbertson, 984 F.2d 699, 700 (5th

Cir. 1993). In Siglar v. Hightower, 112 F.3d 191, 194

59a

(5th Cir. 1997), the Fifth Circuit held that a sore,

bruised ear lasting for three days that resulted from

an officer twisting an inmate’s ear was de minimis

and insufficient to provide a basis for a meritorious

civil rights lawsuit. In Gomez v. Chandler, 163 F.3d

at 924-25, the Fifth Circuit held that injuries

consisting of pain and “cuts, scrapes, contusions to the

face, head and body” that resulted from inmate being

knocked down, punched, and kicked and that

required medical treatment were more than de

minimis. The Fifth Circuit also noted that even

though there must be more than a de minimis

physical injury, “there is no categorical requirement

that the physical injury be significant, serious, or

more than minor.” Id. at 924.

The Fifth Circuit has additionally held that the

question of whether the force used was more than de

minimis must be evaluated in the context in which

the force was deployed. In Ikerd v. Blair, 101 F.3d

430, 434 (5th Cir. 1996), the Fifth Circuit explained

that the amount of injury necessary to satisfy the

requirement of some injury and to establish a

constitutional violation is directly related to the

amount of force that is constitutionally permissible

under the circumstances. In Williams v. Bramer, 180

F.3d 703, 704 (5th Cir. 1999), the Fifth Circuit held

that what constitutes an injury is subjective and

decided entirely by the context in which the injury

arises. The plaintiff in Williams was choked twice: the

first choking occurred when an officer attempted to

search the plaintiff’s mouth, which resulted in

fleeting dizziness, temporary loss of breath, and

coughing. The second choking was the product of a

malicious choking, after which the plaintiff suffered

60a

the same symptoms. The Fifth Circuit held that the

first choking, did not rise to the level of a

constitutional violation under the circumstances, but

the second malicious choking, did qualify as a

cognizable injury since the officer’s actions were the

product of maliciousness, as opposed to a legitimate

search. Id. at 704. The Fifth Circuit specifically noted

that it was required to accept the plaintiff’s version of

events as true for purposes of summary judgment. Id.

More recently, the Fifth Circuit again rejected

arguments focusing solely on the extent of an inmate’s

injuries in Brown v. Lippard, 472 F.3d 384 (5th Cir.

2006). The Fifth Circuit held that the defendant was

not entitled to summary judgment because there was

evidence before the court that his actions were the

product of bad faith, regardless of the lack of

significant injury.

Plaintiff argues that Defendant Olmstead struck

him with a metal bar after they had an argument and

relies on an injury report and medical records to claim

that he was injured and to assert that Defendants

“swept the incident under the rug.” In support of her

Motion for Summary Judgment, Defendant Melissa

Olmstead argues that there is simply no evidence that

she used any force against Plaintiff, and in any event

there is no medical record evidence that Plaintiff ever

sustained any injury, much less a de minimis injury,

to his testicles. In support of this argument,

Defendant Olmstead cites to portions of the medical

record evidence submitted, states that there is no

record of a use-of-force report ever being made for

such an incident, and states that the “Office of the

Inspector General inspected Plaintiff’s claims, and

61a

found no evidence of Plaintiff’s allegations being

true.” Defendants’ Motion for Summary Judgment

(Doc. 107) at 16.

Defendant Olmstead’s summary judgment

evidence is problematic for a number of reasons. First,

to support the assertion that the medical record

evidence does not support Plaintiff’s claims of an

injury, Defendant Olmstead refers to “Ex. B at 134

and 144”; however, a review of those pages reveals

that page 134 appears to note completion of a 24-hour

chart check on September 18, 2013, and page 144 is a

Seclusion / Restraint Notation for September 16,

2013. Such records are irrelevant because Plaintiff’s

allegation is that Defendant Olmstead used excessive

force against him on October 14, 2013. A review of the

medical records attached to Plaintiff’s response as

well as the remaining medical records submitted by

Defendants reveals a Daily Care / Note entered on

October 14, 2013, by Cassandra J. Parrish, L.V.N.,

wherein Plaintiff complained about being hit by an

officer and noting that the ER nurse ordered officials

to bring Plaintiff to the ER for evaluation.

Defendant’s Motion for Summary Judgment (Doc.

107) Ex. B at 088. Also, according to the Clinic Notes,

on October 14, 2013, Plaintiff was seen for his

complaints regarding pain to his right testicle, and

although no apparent injury was visualized, Plaintiff

rated his pain at “5/10,” and the provider noted that

he “grimaces with palpation of testicles,” and

prescribed Ibuprofen for three days and an ice pack

for 24 hours. Defendant’s Motion for Summary

Judgment (Doc. 107) Ex. B at 329. Considering that

Plaintiff did make a complaint of injuries that was

evaluated by medical providers who prescribed a

62a

course of treatment, however de minimus, the Court

cannot conclude as a matter of law that Plaintiff

suffered no injury at all based on competent summary

judgment evidence.

Also, in support of the argument that the Office of

the Inspector General inspected Plaintiff’s claims and

concluded that there was no evidence that his

allegations were true, Defendant Olmstead cites to

the medical records in the appendix, specifically to

“Ex. B 133.” However, again, page 133 of Exhibit B

has nothing at all to do with any incident occurring on

October 14, 2013; rather, it is a Mental Health

Inpatient Nursing Note dated September 19, 2013.

The Court also notes that Defendants submitted a

Business Records Affidavit wherein Celia A.

Eastham, Administrative Assistant III for the Office

of the Inspector General (OIG), specifically states that

“[t]he [OIG]’s database revealed no OIG case

information concerning Offender Trent Taylor, TDCJ

# 01691384, for any OIG report for October 2013 to

March 2014 and for September 2013 to April 2014

with any photos.…” While this Affidavit may

demonstrate that there was no OIG case report at all,

it does not necessarily demonstrate that the incident

alleged to have occurred on October 14, 2013, did not

occur.

The Court cannot rely on the assertion that the

OIG concluded that there was no evidence that

Plaintiff’s allegation of excessive use of force was true

and is hard pressed to conclude as a matter of law that

because there was no use-of-force report, the incident

did not happen. Moreover, Defendant Olmstead did

not submit an affidavit either denying that the

63a

incident took place or, if it did, showing that she acted

in good faith, as opposed to acting maliciously and

sadistically.

The Constitution does not permit a corrections

officer, for no reason other than a malicious or sadistic

purpose, to hit, slap, or otherwise physically attack an

inmate so long as no visible or lasting injuries result.

Courts do sometimes look to the seriousness of the

injury to determine whether the use of force could

plausibly have been thought necessary, but pain

inflicted by excessive force may be actionable under

the Eighth Amendment even if it is not coupled with

an injury that requires medical attention or leaves

permanent marks. Brown v. Lippard, 472 F.3d 384,

387 (5th Cir. 2006). To grant summary judgment for

Defendant Olmstead would grant license to

corrections officers, for no legitimate reason, to strike

prisoners so long as no marks or injuries are visible.

Based upon the foregoing reasons and relevant

medical evidence, and taking Plaintiff’s version of

events as true, the Court concludes that a genuine

issue of material fact remains regarding whether

Defendant Olmstead used excessive force against

Plaintiff on October 14, 2013, and if so, whether she

acted wantonly and maliciously. Therefore, summary

judgment is denied with respect to the excessive-force

claim against Defendant Olmstead in her individual

capacity.

V. CONCLUSION

For the reasons stated above, it is ORDERED:

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1. Defendants Robert Stevens, Robert Rojas,

Ricardo Cortez, Stephen Hunter, Larry Davidson,

Melissa Olmstead, and Shane Swaney’s Motion for

Summary Judgment filed on October 10, 2016, is

GRANTED in part and DENIED in part.

2. Defendants

Creastor

Henderson

and

Stephanie Orr’s Motion for Summary Judgment filed

on November 14, 2016, is GRANTED.

3. Plaintiff’s complaint and all claims alleged

therein against Defendants Robert Stevens, Robert

Rojas, Ricardo Cortez, Stephen Hunter, Larry

Davidson, Shane Swaney, Creastor Henderson,

Stephanie Orr, Franco Ortiz, and Joe Martinez are

DISMISSED with prejudice.

4. Plaintiff’s claim of excessive use of force

against Defendant Melissa Olmstead in her

individual capacity remains pending and set for trial

on March 6, 2017.

5. Plaintiff’s Motion to Excuse Local Rule of

Judges Copy and Motion to Allow Plaintiff to Have

His Exhibits Returned filed on November 2, 2016, is

GRANTED. The Clerk is directed to return to

Plaintiff a copy of his Exhibits B and C attached to his

Brief in Opposition to Defendants’ Motion for

Summary Judgment filed on November 2, 2016. Any

future motion for the return of copies or free copies

shall be denied.

6. All relief not expressly granted is denied and

all pending motions are hereby denied.

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Judgment shall be entered accordingly.

Dated January 5, 2017.

/s/ Sam R. Cummings

Sam R. Cummings

Senior United States

District Judge

66a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TRENT TAYLOR,

Institutional ID

No. 1691384,

SID NO. 6167597,

Previous TDCJ No.

1336391,

§

§

§

§

§

§

§

Plaintiff,

§

§ CIVIL ACTION

v.

§ NO. 5:14-CV-149-C

§

ROBERT STEVENS, et al., §

§

Defendants.

§ ECF

ORDER

Before the Court is Plaintiff’s Objection to

Judgment Entered Pursuant to 54(b), Motion to Alter

or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e),

and Motion to Allow Plaintiff to Take Further

Discovery Pertaining to His Excessive Use of Force

Claim filed on January 26, 2017.

The Court has reviewed Plaintiff’s Objections and

finds that his Motion to Alter or Amend Judgment

Pursuant to Fed. R. Civ. P. 59(e) should be DENIED.

67a

Finally, Plaintiff requests further discovery

pertaining to his excessive use of force claim in the

form of 8 categories of documents. Upon review of the

motion, the Court finds as follows:

(1) Plaintiff’s request for “[a]ny and all records of

Defendant Olmstead (disciplinary and or

otherwise[)] regarding her employment in the

Texas Department of Criminal Justice” is

DENIED as overly broad and unduly

burdensome

on

Defendant

Olmstead.

However, the Court finds that his request for

records of disciplinary actions taken against

Defendant Olmstead is GRANTED, but only

to the extent such disciplinary actions

specifically relate to unjustified use of

force against Texas Department of

Criminal Justice (TDCJ) inmates.

On or before February 13, 2017, Counsel for

Defendant Olmstead shall file, with the

Court, any documents related to disciplinary

action against Defendant Olmstead UNDER

SEAL or file a statement that there are no

such documents. The Court will make any

such documents available to Plaintiff

immediately prior to trial and such

documents shall be returned to the Clerk of

Court at the end of trial.

(2) Plaintiff’s request for “[a]ny and all

grievances for use of force reported or

unreported regarding [Defendant Olmstead]”

is DENIED. The Court finds that this request

68a

is overly broad and unduly burdensome on

Defendant.

(3) Plaintiff’s request for “[a]ny and all records

pertaining to falsification of any records by

employees of the TDCJ John Montford Unit”

is DENIED. The Court finds that the request

is overly broad and unduly burdensome on

Defendant.

(4) Plaintiff’s request for “[a]ny and all reports of

unauthorized use of forces [sic] 6 months prior

to said indigent up until todays date” is

DENIED. The Court finds that the request is

overly broad and unduly burdensome on

Defendant.

(5) Plaintiff’s request for “[a]ny and all reports

and or directives pertaining to use of force

reporte[d] or unreported” is DENIED.

Plaintiff has not shown cause why such

documents are relevant to his complaint, as

this case involves his claim that his

constitutional rights were violated. This case

does not involve or require demonstration of a

violation of a TDCJ policy.

(6) Plaintiff’s request for a copy of the TDCJ

Offender Grievance Manual is DENIED.

Plaintiff has failed to demonstrate that the

TDCJ Grievance Manual is relevant to his

claim of excessive force.

(7) Plaintiff’s request for “[a]ny and all directives

pertaining to actions taken after injuries

69a

occurred by use of excessive force or any other

action” is DENIED. Plaintiff has not shown

cause why such documents are relevant to his

complaint, as this case involves his claim that

his constitutional rights were violated. This

case

does

not

involve

or

require

demonstration of a violation of a TDCJ policy.

(8) Plaintiff’s request for “[a]ny and all rules and

regulations pertaining to OIG use of force

investigations” is DENIED. Plaintiff has not

shown cause why such documents are

relevant to his complaint, as this case involves

his claim that his constitutional rights were

violated. This case does not involve or require

demonstration of a violation of a TDCJ policy.

SO ORDERED.

Dated January 30, 2017.

/s/ Sam R. Cummings

Sam R. Cummings

Senior United States

District Judge

70a

APPENDIX D

IN THE UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10253

TRENT TAYLOR,

Plaintiff - Appellant,

v.

ROBERT STEVENS, Warden, Individually and in

their Official Capacity; ROBERT RIOJAS, Sergeant

of Corrections Officer, Individually and in their

Official Capacity; RICARDO CORTEZ, Sergeant of

Corrections Officer, Individually and in their Official

Capacity; STEPHEN HUNTER, Correctional Officer,

Individually and in their Official Capacity; LARRY

DAVIDSON, Correctional Officer, Individually and in

their Official Capacity; SHANE SWANEY, Sergeant

of Corrections Officer, Individually and in their

Official Capacity; FRANCO ORTIZ, Correctional

Officer, Individually and in their Official Capacity;

CREASTOR HENDERSON, L.V.N., Individually and

in their Official Capacity; STEPHANIE ORR, L.V.N.,

Individually and in their Official Capacity; JOE

MARTINEZ,

Defendant - Appellees.

71a

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING AND

REHEARING EN BANC

(Opinion: December 20, 2019, 5 Cir., ____, ____ F.3d

____ )

Before OWEN, Chief Judge, JONES and SMITH,

Circuit Judges.

PER CURIAM:

() The Petition for Rehearing is DENIED and no

member of this panel nor judge in regular active

service on the court having requested that the

court be polled on Rehearing En Banc, (FED. R.

APP. P. and 5TH CIR. R. 35) the Petition for

Rehearing En Banc is also DENIED.

( ) The Petition for Rehearing is DENIED and the

court having been polled at the request of one of

the members of the court and a majority of the

judges who are in regular active service and not

disqualified not having voted in favor, (FED. R.

APP. P. and 5TH CIR. R. 35) the Petition for

Rehearing En Banc is also DENIED.

( ) A member of the court in active service having

requested a poll on the reconsideration of this

cause en bane, and a majority of the judges in

72a

active service and not disqualified not having

voted in favor, Rehearing En Banc is DENIED.

ENTERED

COURT

FOR

THE

/s/ Jerry E. Smith

UNITED STATES

CIRCUIT JUDGE

[Dated: January 29, 2020]