Petition for Writ of Certiorari — Dennis Wayne Hope, Petitioner v. Todd Harris, et al.

APPENDIX

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[filed Sept. 1, 2021]

____________________________________

No. 20-40379

____________________________________

DENNIS WAYNE HOPE,

Plaintiff—Appellant,

versus

TODD HARRIS; CHAD REHSE; LEONARD ESCHESSA; JONI

WHITE; KELLY ENLOE; MELISSA BENET; B. FIVEASH,

Defendants—Appellees.

____________________________________

Appeal from the United States District Court for the

Eastern District of Texas

USDC No. 9:18-CV-27

____________________________________

ON PETITION FOR REHEARING EN BANC

Before KING, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5TH CIR. R. 35 I.O.P.),

the petition for panel rehearing is DENIED. Because

no member of the panel or judge in regular active

service having requested that the court be polled on

rehearing en banc (FED. R. APP. P. 35 and 5TH CIR. R.

35), the petition for rehearing en banc is DENIED.

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[filed June 18, 2021]

____________________________________

No. 20-40379

____________________________________

DENNIS WAYNE HOPE,

Plaintiff—Appellant,

versus

TODD HARRIS; CHAD REHSE; LEONARD ESCHESSA; JONI

WHITE; KELLY ENLOE; MELISSA BENET; B. FIVEASH,

Defendants—Appellees.

____________________________________

Appeal from the United States District Court for the

Eastern District of Texas

USDC No. 9:18-CV-27

____________________________________

Before KING, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

In this case, a prisoner, proceeding pro se, filed an

action under 42 U.S.C. § 1983, challenging, inter

alia, various aspects of his imprisonment in solitary

confinement under the Fourteenth, First, and Eighth

Amendments of the U.S. Constitution. The district

court, adopting the magistrate judge’s report and

* Pursuant to 5th Circuit Rule 47.5, the court has deter-

mined that this opinion should not be published and is

not precedent except under the limited circumstances set

forth in 5th Circuit Rule 47.5.4.

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recommendation, dismissed all claims with prejudice. Now, with counsel, the prisoner appeals. For

the reasons that follow, we AFFIRM in part,

VACATE in part, and REMAND for further proceedings.

I.

Plaintiff-appellant Dennis Wayne Hope is a prisoner in solitary confinement in the Security Housing

Unit at the Polunsky Unit within the Texas Department of Criminal Justice. Hope alleges that he has

been continuously held in solitary confinement in a

cell “no larger than a parking space” twenty-three to

twenty-four hours a day for over two decades. According to Hope, he has been told that because he escaped from prison in 1994, he will remain in solitary

confinement, even though he alleges that his “escape

risk” designation was removed in 2005. He claims

that the committee meetings that review his ongoing

solitary confinement are a “sham.” Moreover, Hope

has alleged that since he filed a grievance about various conditions, he has been moved between cells

over 263 times and has had his typewriter confiscated. Finally, Hope claims, inter alia, that the decades

of solitary confinement in a cell that sometimes has

feces, urine, and black mold on the walls, floor, and

doors have led to his physical and psychological deterioration.

Hope, originally proceeding pro se, filed this lawsuit against seven prison officials: Senior Warden

Todd Harris, Major Chad Rehse, Deputy Director of

Support Operations Leonard Eschessa, Assistant Director of Classifications Joni White, and three state

classification committee members, Kelly Enloe,

Melissa Benet, and Bonnie Fiveash (collectively, “De-

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fendants”). Specifically, Hope brought a procedural

due process claim under the Fourteenth Amendment

and a retaliation claim under the First Amendment.

He also brought an Eighth Amendment claim, alleging that the conditions, including the duration, of his

solitary confinement constitute cruel and unusual

punishment. A magistrate judge recommended that

Hope’s complaint be dismissed for lack of standing

but then proceeded to analyze the merits of Hope’s

claims, recommending that they be dismissed with

prejudice. The district court, after a de novo review,

overruled Hope’s objections, adopted the magistrate

judge’s report and recommendation, and dismissed

Hope’s complaint with prejudice. Hope timely appealed with counsel.1

II.

We review a dismissal for lack of subject-matter

jurisdiction de novo. JTB Tools & Oilfield Servs.,

L.L.C. v. United States, 831 F.3d 597, 599 (5th Cir.

2016). The jurisdictional questions presented here

are two-fold: (1) whether Hope has standing to bring

this action and (2) whether state sovereign immunity

bars this action. Important, too, to this jurisdictional

inquiry is the fact that Hope brought both officialcapacity and individual- capacity claims. We discuss

each in turn.

A.

There is subject-matter jurisdiction over

Hope’s official-capacity claims.

Hope is a prisoner challenging the conditions of

his confinement, and his classification within the

prison system in an action against various prison ofFour amicus briefs focusing on the effects of long-term

solitary confinement were also filed in support of Hope.

1

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ficials. This is the prototypical mix of defendants in

such cases. Cf. Morris v. Livingston, 739 F.3d 740,

746 (5th Cir. 2014) (dismissing the Governor from a

prisoner’s action for, inter alia, Eighth Amendment

violations on the basis of sovereign immunity but not

dismissing the named prison official). Against that

backdrop, we first look to whether Hope has established standing as to each of his claims.

Generally, a plaintiff has standing to sue under

Article III if he can show (1) an injury-in-fact, concrete and particularized, that is (2) fairly traceable to

the defendant’s challenged action, and (3) redressable by a favorable outcome. City of Austin v. Paxton,

943 F.3d 993, 1002 (5th Cir. 2019), cert. denied, 141

S. Ct. 1047 (2021) (citing Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 411 (2013)).

Liberally construing Hope’s pro se complaint, as

we must, Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.

1995), he alleges three claims.2 Specifically, Hope alleges a procedural due process claim under the Fourteenth Amendment against all Defendants and a retaliation claim under the First Amendment against

Defendants Warden Harris and Major Rehse. He also

brings an Eighth Amendment claim against all Defendants for cruel and unusual punishment.

“At the pleading stage, general factual allegations

of injury resulting from the defendant’s conduct may

suffice, for on a motion to dismiss we ‘presum[e] that

general allegations embrace those specific facts that

are necessary to support the claim.’” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v.

2 Although Hope is represented by counsel on appeal, he

proceeded pro se in the district court.

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Nat’l Wildlife Fed., 497 U.S. 871, 889 (1990)) (alterations in original). And “when the suit is one challenging the legality of government action or inaction,” of

which the prisoner is the object, then “there is ordinarily little question . . . that a judgment preventing

or requiring the action will redress it.” Id. at 561–62.

Here, Hope has offered numerous factual allegations supporting each of his claims. For example, regarding Hope’s procedural due process claim, Hope

alleges that he is denied meaningful reviews to determine if he should be removed from solitary confinement and that the hearings that are held regarding his classification are a “sham.” Specifically, Hope

alleges that each of the Defendants has contributed

to the denial of a meaningful review and due process

by, inter alia, not discussing matters related to his

file and failing to follow the classification policies

and “fair procedures.” To that end, Hope has alleged

that his denial of procedural due process is fairly

traceable to each of the Defendants, and his requested relief would redress this injury by, for example,

ordering Defendants to afford Hope the process he

claims that he is due. See id.

As to the retaliation claim, Hope has also alleged

an injury-in-fact. Namely, he alleges that after filing

a grievance, he suffered various retaliatory acts such

as being moved to over 263 different cells and having

his typewriter confiscated. He alleges that Defendants Warden Harris and Major Rehse have ordered

these moves, which suffices at the pleading stage as

a factual allegation that the injury resulted from Defendants’ conduct. Id. at 560. And at this stage in the

proceedings, his requested relief would redress this

injury by, for example, enjoining the frequent cell

moves. See id at 561–62 (explaining that where a

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plaintiff is the “object of the action (or forgone action)

at issue,” then “there is ordinarily little question that

the action or inaction has caused him injury, and

that a judgment preventing or requiring the action

will redress it”).

Finally, as to his Eighth Amendment claim, Hope

has alleged that he has suffered “physical and psychological mal[a]dies due to the inhumane treatment

and conditions” and has been denied “basic needs.”

He goes on to allege that “[e]ach of the Defendants in

one capacity or another work together to ensure Mr.

Hope continues to be subjected to these inhumane

conditions and have done so for a prolonged period of

time.” As such, Hope has alleged an injury-in-fact—

his physical and psychological maladies—that is fairly traceable to Defendants in light of their roles in

maintaining those conditions and Hope’s confinement in those conditions. See id. at 560–61. Finally,

Hope’s requested relief is that he not be subjected to

these “inhumane conditions,” and so, because Hope is

the object of the Defendants’ continuation of these

conditions, a judgment enjoining such actions would

redress the alleged harm. See id. at 561–62.

For these reasons, contrary to the magistrate

judge’s conclusion, Hope has standing to bring this

action.3

3 The magistrate judge concluded that Hope lacked stand-

ing to bring this action because his claims were not redressable by Defendants. Specifically, the magistrate

judge found that Hope’s claims were not redressable because some of Defendants had left Hope’s prison unit and

that only the “Director” of the prison system, who was not

named among Defendants and whom the magistrate

judge did not offer any details about, could redress Hope’s

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We must also assure ourselves that this suit

clears a second jurisdictional bar—state sovereign

immunity. Perez v. Region 20 Educ. Serv. Ctr., 307

F.3d 318, 333 n.8 (5th Cir. 2002) (noting that state

sovereign immunity “bears on [the] court’s subjectmatter jurisdiction”). State sovereign immunity prohibits “private suits against nonconsenting states in

federal court.” See City of Austin, 943 F.3d at 997; see

also Hans v. Louisiana, 134 U.S. 1, 13 (1890). And

where a suit is effectively against the state, the state

officials enjoy the same sovereign immunity that

would be afforded the state. Tex. Democratic Party v.

Abbott, 978 F.3d 168, 179 (5th Cir. 2020), cert. denied, 141 S. Ct. 1124 (2021); City of Austin, 943 F.3d

at 997. In the absence of abrogation by Congress,

waiver by the state, or application of an exception,

state sovereign immunity bars suit. Tex. Democratic

Party, 978 F.3d at 179.

Relevant here is the exception under Ex parte

Young, 209 U.S. 123 (1908), which permits suits for

prospective injunctive or declaratory relief against a

state official acting in violation of federal law if there

injuries. But this was an error. First, Hope brought, inter

alia, official-capacity claims against Defendants, allowing

the officials’ successors to be automatically substituted, so

it is of no moment that some of the Defendants have left

Hope’s unit. Ganther v. Ingle, 75 F.3d 207, 210 & n.7 (5th

Cir. 1996); see also Fed. R. App. P. 43(c)(2) (“The public

officer’s successor is automatically substituted as a party.”). Second, the magistrate judge’s conclusion appears to

rest on an assumption that the only way to redress Hope’s

injuries was releasing him from solitary confinement. But

Hope’s requested relief is not so limited. Indeed, Hope also requests that he not be subjected to certain conditions

of confinement as well as receive additional process.

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is a sufficient connection to enforcing the allegedly

unconstitutional law. See id. We have made clear

that enforcement means “compulsion” or “constraint”

and that a plaintiff must at least show that the defendant has a particular duty to enforce the challenged conduct. Id.; see also Tex. Democratic Party v.

Hughs, No. 20-50683, 2021 WL 1826760, at *2 (5th

Cir. May 7, 2021). And we note that generally “all

institutional litigation involving state prisons,” such

as this case, is brought under the Ex parte Young exception. Brennan v. Stewart, 834 F.2d 1248, 1252 n.6

(5th Cir. 1988). In fact, “[t]he exception is so well established [in that context] that” such cases often do

not even “mention[] . . . Ex parte Young.” Id.; see also

Kahey v. Jones, 836 F.2d 948, 949 (5th Cir. 1988)

(“To the extent her complaint [against the Warden]

thus seeks prospective injunctive relief against the

state, it does not contravene the eleventh amendment.”). Finally, although analytically distinct questions, there is “significant[] overlap” between the Article III standing and the Ex parte Young inquiries.

See City of Austin, 943 F.3d at 1002 (quoting Air

Evac EMS, Inc. v. Tex., Dep’t of Ins. Div. of Workers’

Comp., 851 F.3d 507, 520 (5th Cir. 2017)). And we

note, too, that the standing inquiry can inform the

state sovereign immunity inquiry. See id.

Against that backdrop, each of the Defendants

whom Hope named and seeks prospective injunctive

relief against has the authority to compel or constrain Hope’s conditions of confinement by maintaining those conditions and his placement within them.4

4 First, Hope named Todd Harris, the Senior Warden, and

in similar prison litigation, the warden is almost invariably named as a defendant. See, e.g., Farmer v. Brennan,

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511 U.S. 825, 830 (1994) (naming the warden of the prison

where the prisoner was housed). And it stands to reason

that the prison warden would have a sufficient connection

to enforcing the allegedly unconstitutional prison conditions by compelling or constraining certain practices. See

Tex. Democratic Party, 978 F.3d at 179; see also Kahey, 836

F.2d at 949. Second, Hope named Major Chad Rehse,

whose duties include overseeing the conditions of confinement and treatment of inmates in solitary confinement. Such duties satisfy the required connection to the

challenged conduct because Major Rehse can compel or

constrain certain challenged conditions of confinement. See

City of Austin, 943 F.3d at 1001; see also Southard v. Tex.

Bd. of Crim. Just., 114 F.3d 539, 552 (5th Cir. 1997) (explaining that “[e]ach prison unit organizes the line of authority over its security personnel after a military chain of

command: wardens, assistant wardens, majors, captains,

lieutenants, sergeants, and correctional officers, in descending hierarchical order”). The same is true of Deputy

Director of Support Operations Leonard Eschessa whose

duties include managing the overall treatment, conditions

of confinement, and classifications of inmates. See Tex.

Dep’t of Crim. Just. v. Terrell, 925 S.W.2d 44, 47 (Tex.

App.—Tyler 1995, no pet.) (describing the chain of command). Assistant Director of Classifications Joni White is

responsible for “the overall classifications,” again satisfying the requisite connection by being in a position to compel or constrain classification of prisoners. See Martinez v.

Stephens, No. CV H-16- 0195, 2017 WL 607129, at *4 (S.D.

Tex. Feb. 15, 2017) (describing the Assistant Director’s role

and responsibilities). Finally, when it comes to the three

state classification committee members, they all have the

authority to make final decisions regarding administrative segregation, which yet again satisfies the requisite

connection in that the committee members are in a position to compel or constrain classification of prisoners. See

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See, e.g., Kahey, 836 F.2d at 949 (noting that complaints against the prison warden do not contravene

state sovereign immunity); City of Austin, 943 F.3d

at 1001 (discussing a case where board members had

the requisite authority for purposes of Ex parte

Young because the board had the authority to decide

whether to pay certain claims); see also Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (explaining

that under Tex. Gov’t Code 501.063(b) the Texas Department of Criminal Justice is responsible for enforcing the challenged statutory provision). Therefore, state sovereign immunity does not bar Hope’s

official-capacity claims for prospective injunctive relief.

But, as the magistrate judge correctly recognized,

Hope cannot seek monetary damages from Defendants in their official capacities. Tex. Democratic Party, 978 F.3d at 179; see also Hafer v. Melo, 502 U.S.

21, 30 (1991). The same is not necessarily so, however, for Hope’s individual- capacity claims, and we

turn to these next.

B.

Hope’s individual-capacity claims must be

considered in the first instance.

In addition to his official-capacity claims, Hope

also sought damages against Defendants in their individual capacities, which is permitted. See Hafer,

502 U.S. at 30–31. Here, however, neither the magistrate judge nor the district court ever considered

these individual-capacity claims before dismissing

Wilkerson v. Goodwin, 774 F.3d 845, 850 (5th Cir. 2014)

(analyzing a claim where a prisoner in solitary confinement

sued various prison officials, including two classification

officers).

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the entire complaint with prejudice. But as “we are a

court of review, not of first view,” we do not pass on

the individual-capacity claims and instead remand to

the district court to consider these claims in the first

instance. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005); In re Ultra Petroleum Corp., 943 F.3d 758,

766 (5th Cir. 2019).

III.

We review the district court’s ruling on a motion

to dismiss under Federal Rule of Civil Procedure

12(b)(6) de novo. Wampler v. Sw. Bell Tel. Co., 597

F.3d 741, 744 (5th Cir. 2010). “To survive a motion to

dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. In exercising this review, we will not dismiss a claim “unless the plaintiff cannot prove any

set of facts in support of his claim that would entitle

him to relief.” Alexander v. Verizon Wireless Servs.,

L.L.C., 875 F.3d 243, 249 (5th Cir. 2017). “We take

all factual allegations as true and construe the facts

in the light most favorable to the plaintiff.” Id. Further, where, as here, the complaint was filed pro se,

we liberally construe it. Grant, 59 F.3d at 524.

A.

Hope has failed to state a procedural due

process claim.

We turn first to Hope’s procedural due process

claim. And on this claim, we generally agree with the

district court. To determine what process is due, we

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address two inquiries: “(1) whether there exists a liberty . . . interest which has been interfered with by

the State and (2) whether the procedures attendant

upon that deprivation were constitutionally sufficient.” Richardson v. Tex. Sec’y of State, 978 F.3d

220, 228–29 (5th Cir. 2020) (citation omitted).

As to the first inquiry, Hope likely has established a liberty interest. That is, he has been placed

in solitary confinement indefinitely, and his placement renders him ineligible for parole. Wilkinson v.

Austin, 545 U.S. 209, 224–25 (2005); see also Wilkerson, 774 F.3d at 855.

Turning to the second inquiry, to determine what

process is due, we look to the framework established

in Mathews v. Eldridge, 424 U.S. 319 (1976), which

“requires consideration of three distinct factors,”

namely (1) “the private interest that will be affected

by the official action,” (2) “the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards,” and “the Government’s interest, including the function involved and

the fiscal and administrative burdens that the additional or substitute procedural requirement would

entail.” Austin, 545 U.S. at 224-25 (quoting Eldridge,

424 U.S. at 335).

In this case, although Hope’s interest is “more

than minimal,” it “must be evaluated . . . within the

context of the prison system and its attendant curtailment of liberties.” Id. at 225. Put differently, we

look to how much liberty Hope is deprived of over

and above what would normally be incident to prison

life. And so, Hope’s interest is low.

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From there, we turn to the risk of erroneous deprivation by considering whether Hope has “notice of

the factual basis leading to consideration for [solitary] placement” and “a fair opportunity for rebuttal.” Id. at 225–26. Where the government gives a

prisoner an opportunity “to submit objections prior to

the final level of review,” that decreases the likelihood of erroneous deprivation. Id. at 226.

Here, Hope has received notice of the factual basis for his placement in solitary—his escape record.

To be sure, Hope claims that his designation as an

“escape risk” has been removed. But in any event,

Hope concedes that the basis for his present placement in solitary remains “an incident that will never

change from over 23 years ago.” In so doing, Hope

has alleged that he has notice.

We also find that based on the allegations before

us, even viewing them in the light most favorable to

Hope, Hope has had a fair opportunity for rebuttal.

Indeed, according to Hope he has attended at least

forty-eight hearings and has made statements during those hearings. In other words, Hope has been

allowed to levy “objections prior to the final level of

review,” thereby decreasing the likelihood of erroneous deprivation. Id.

Finally, turning to the government’s interest,

Texas’s “first obligation must be to ensure the safety

of . . . the public.” Id. at 227. Moreover, given the

scarce resources of prison systems, we must “give

substantial deference to prison management decisions before mandating additional expenditures for

elaborate procedural safeguards.” Id. at 228. Based

on the pleadings before us, Texas’s interest in keeping the public safe from Hope, who has previously

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escaped, weighs in favor of finding that Hope has

been given adequate process.

Put simply, even accepting Hope’s allegations as

true and viewing them in the light most favorable to

him, the government’s interest outweighs Hope’s interest, and the process he is given suffices to satisfy

the constitutional requirements of the Fourteenth

Amendment. Therefore, we affirm the district court’s

dismissal of this claim.

B.

Hope has stated a claim for retaliation.

Hope also alleges that Defendants Warden Harris

and Major Rehse have engaged in various forms of

retaliatory conduct against him as a result of his filing grievances and having outside advocates contact

officials “about his continued confinement in solitary.”

“To prevail on a claim of retaliation, a prisoner

must establish (1) a specific constitutional right, (2)

the defendant’s intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Morris v. Powell,

449 F.3d 682, 684 (5th Cir. 2006) (citation omitted).

“An action motivated by retaliation for the exercise of

a constitutionally protected right is actionable, even

if the act, when taken for a different reason, might

have been legitimate.” Woods v. Smith, 60 F.3d 1161,

1165 (5th Cir. 1995).

To show causation as part of his retaliation claim,

in violation of his First Amendment rights, “a plaintiff must allege that, but for the retaliatory motive,

the complained of incident would not have occurred.”

Gonzales v. Gross, 779 F. App’x 227, 230 (5th Cir.

2019) (citation and alterations omitted). That is, a

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prisoner must either (1) “produce direct evidence of

motivation” or (2) “allege a chronology of events from

which retaliation may plausibly be inferred.” Id. (citation omitted).

In his pleadings, Hope alleges a constitutional

right under the First Amendment to file a grievance

with the prison system and that after filing such a

grievance (and after outside advocates contacted the

prison on his behalf), his typewriter was confiscated

and then, between 2012 and 2018, he was moved a

total of 263 times.

Hope alleges that before he filed his grievance, for

almost fourteen years, he remained in the same cell

or was moved only infrequently. In other words, the

alleged cell-move policy and the confiscation of his

typewriter (which he used to type the grievance) only

occurred after he filed the grievance. Such a drastic

shift has been alleged with sufficient detail so as to

constitute a “chronology of events from which retaliation may plausibly be inferred.” Woods, 60 F.3d at

1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6

(7th Cir. 1988)). Plainly, Hope alleges that the retaliatory or adverse act is the excessive number of

moves from cell to cell—a policy and practice he alleges is still in effect—and confiscation of his typewriter. Cf. Petzold v. Rostollan, 946 F.3d 242, 253–54

(5th Cir. 2019) (finding that an inference of retaliation was bolstered by the chronology of events). Accordingly, Hope has plausibly alleged a retaliation

claim as to these incidents.

Second, Hope alleges that after requesting video

footage of a search of his cell, he was exposed to pepper spray and “left nude in a cell [for eight days] with

the pepper spray still on his body and nothing to

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clean it off with.” But, as alleged, the constitutional

violation at issue is not clear, and we do not find that

Hope has alleged a retaliation claim based on this

incident.

At bottom, Hope has plausibly alleged all three

elements of a retaliation claim against Defendants

Harris and Rehse as to the cell-move policy and

typewriter confiscation, and we vacate the district

court’s dismissal of Hope’s retaliation claim and remand for further proceedings.

Hope has stated a claim for a violation

of the Eighth Amendment based on certain conditions

of his confinement only against Major Rehse.5

C.

The Eighth Amendment prohibits the infliction of

“cruel and unusual punishments.” U.S. Const.

amend. VIII. But long-term solitary confinement is

not per se cruel and unusual. Hutto v. Finney, 437

To the extent that Hope has also alleged Eighth

Amendment violations for other aspects of his confinement such as his lack of the same type of access to the law

library as prisoners in the general population, the type of

condiments he receives with his meals, or the type of human contact he has as compared to prisoners in the general population, such claims fail as a matter of law. See

Daigre v. Maggio, 719 F.2d 1310, 1312 (5th Cir. 1983)

(explaining that “isolation is punitive . . . and that deprivations beyond those imposed on the general prison population is the very essence of internal prison discipline”).

Similarly, to the extent that Hope has alleged an Eighth

Amendment violation based on the sheer length of his

confinement, this claim also fails. As the Supreme Court

has explained, “the length of isolation sentences was not

considered in a vacuum.” Hutto, 437 U.S. at 685; see also

Grabowski v. Lucas, No. 94-60177, 1994 WL 652674, at *3

(5th Cir. Nov. 11, 1994) (per curiam).

5

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U.S. 678, 686 (1978) (observing that it is “perfectly

obvious that every decision to remove a particular

inmate from the general prison population for an indeterminate period could not be characterized as

cruel and unusual”). Nevertheless, “[t]here is a line

where solitary confinement conditions become so severe that its use is converted from a viable prisoner

disciplinary tool to cruel and unusual punishment.”

Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974).

With that in mind, we focus our analysis of Hope’s

Eighth Amendment claim on whether the conditions

of Hope’s confinement are sufficiently “severe.” See

id.; Farmer, 511 U.S. at 834.

Of course, the Constitution does not require “comfortable” prison conditions, but the conditions of confinement may not “involve the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S.

337, 347, 349 (1981); see also Daigre, 719 F.2d at

1312 (noting that “the eighth amendment forbids

deprivation of the basic elements of hygiene”) (citing

Novak v. Beto, 453 F.2d 661, 665 (5th Cir. 1971)).

To state a claim for a violation of the Eighth

Amendment based on conditions of confinement, a

prisoner must allege (1) that the prison conditions

pose a “sufficiently serious” threat to his health, including his mental health, and (2) that prison officials acted with “deliberate indifference” to such

threat. Farmer, 511 U.S. at 834 (quoting Wilson v.

Seiter, 501 U.S. 294, 298, 302 (1991)).

To meet the first requirement, the prisoner must

show that the conditions, either alone or in combination, constitute an “unquestioned and serious deprivation” of his “basic human needs” such as food,

clothing, medical care, and safe and sanitary living

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conditions. See Chapman, 452 U.S. at 347–48; cf.

Daigre, 719 F.2d at 1312 (rejecting an Eighth

Amendment challenge where the record did not establish that the prisoner’s “isolation cell is generally

unsanitary” but noting that a “deprivation of the

basic elements of hygiene” is forbidden). And, conditions of confinement may be aggregated to rise to the

level of a constitutional violation “when they have a

mutually enforcing effect that produces the deprivation of a single, identifiable human need such as

food, warmth, or exercise.” Wilson, 501 U.S. at 304

(explaining that there may be an Eighth Amendment

violation where a prisoner complained of a “low cell

temperature at night combined with a failure to issue blankets”). Further, under the Eighth Amendment, “the length of confinement cannot be ignored

in deciding whether the confinement meets constitutional standards.” Finney, 437 U.S. at 686.

As to the second requirement, the prisoner must

show that the defendant acted with “more than mere

negligence.” Farmer, 511 U.S. at 835. To that end,

the prisoner must show that those prison officials

were (1) “aware of facts from which the inference

could be drawn that a substantial risk of serious

harm exists”; (2) “subjectively drew the inference

that the risk existed”; and (3) “disregarded the risk.”

Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019)

(citing Farmer, 511 U.S. at 837) (alterations omitted). More simply, the prison officials must know of,

and disregard, an excessive risk to a prisoner’s

health or safety. See id. (citation omitted). Evidence

that a risk was obvious or otherwise apparent may

be sufficient to support an inference that the prison

official was aware of the risk. Estate of Cheney ex rel.

Cheney v. Collier, 560 F. App’x 271, 273–74 (2014)

20a

(collecting cases); see also Valentine v. Collier, 978

F.3d 154, 163 (5th Cir. 2020) (citing Hope v. Pelzer,

536 U.S. 730, 738 (2002)).

And it is on this second requirement, deliberate

indifference, where much of Hope’s Eighth Amendment challenge falls short. Specifically, Hope has not

sufficiently pleaded deliberate indifference—with one

exception discussed supra—because it is unclear

from Hope’s complaint if any of Defendants, with the

exception of Major Rehse, was even aware of the

conditions of which he complains. In the absence of

such allegations of deliberate indifference—

regardless of whether any of the complained-of conditions indeed invoke Eighth Amendment concerns—

Hope has failed to state a claim. Cleveland, 938 F.3d

at 676. Therefore, we affirm the district court’s dismissal of Hope’s Eighth Amendment claim as to all

Defendants except Major Rehse.

That said, liberally construing Hope’s complaint

as we must, Hope has plausibly alleged that Major

Rehse was deliberately indifferent to certain conditions of confinement, which he alleges deprived him

of basic human needs such as sanitary living conditions.

First, Hope has alleged that for over two decades

he has been in solitary confinement in sometimes

unsanitary conditions, including urine, feces, and

mold on the walls, floor, and showers, insufficient

cleaning supplies, and exposure to pepper spray and

tear gas without decontamination.6

6 Although Hope also challenges the types of meals he re-

ceives, including that some have made him sick, such challenges fail as a matter of law. See Martin v. Scott, 156

21a

We have previously found that similar unsanitary

conditions in a prison cell can, in certain circumstances, rise to the level of cruel and unusual punishment. See Taylor v. Stevens, 946 F.3d 211, 219–20

(5th Cir. 2019), cert. granted, judgment vacated on

other grounds sub nom. Taylor v. Riojas, 141 S. Ct.

52 (2020); Gates, 501 F.2d at 1302; Fussell v. Vannoy,

584 F. App’x 270, 271 (5th Cir. 2014); Smith v. Leonard, 244 F. App’x 583, 584 (5th Cir. 2007). Here,

among other allegations, Hope alleges that a wall

was almost completely covered in black mold. According to Hope, he was in the mold- infested cell for

two weeks and began coughing and was never given

F.3d 578, 580 (5th Cir. 1998) (finding that allegations that

a prisoner “became ill after being fed Vita-Pro—a soybased meat substitute—simply do not rise to the level of

cruel and unusual punishment”). Hope’s allegations regarding the policy that he be handcuffed from behind and

forced to squat down suffer a similar fate. See Talib v. Gilley, 138 F.3d 211, 215 (5th Cir. 1998) (finding that “a policy

requiring prisoners on lockdown to kneel facing the wall

with their hands behind their backs when served meals”

did not constitute cruel and unusual punishment). Similarly, although Hope also generally alleges excessive noise

and sleep deprivation, on the face of Hope’s complaint, it

is not clear if the alleged noise is serious enough to cause

sleep deprivation or how much sleep Hope actually gets.

Without such allegations, Hope has not alleged that he

“has been deprived of the minimal measure of life’s necessities.” See Chavarria v. Stacks, 102 F. App’x 433, 436 n.2

(5th Cir. 2004). Finally, to the extent that Hope alleged

an Eighth Amendment claim for a denial of psychiatric

treatment, such a claim was not sufficiently briefed on

appeal and is thus waived. See FED. R. APP. P.

28(a)(9)(A); United States v. Martinez, 263 F.3d 436, 438

(5th Cir. 2001).

22a

cleaning supplies to address the condition. This likely is sufficiently serious by itself. See, e.g., Smith,

244 F. App’x at 584 (vacating the judgment and remanding an Eighth Amendment claim regarding a

prison official’s failure to remove “allegedly toxic

mold” from prison); cf. Taylor, 946 F.3d at 219 (citation omitted) (observing that a cell “covered with

crusted fecal matter, urine, dried ejaculate, peeling

and chipping paint, and old food particles” violated

the Eighth Amendment). But taken together with

the urine and feces on the wall, which Hope alleges

has occurred “many times” throughout his twentysix years in these conditions, it is more than plausible that Hope’s decades of solitary confinement

alongside such conditions of mold, urine, and feces

have caused the physical and psychological deterioration he alleges, and it is clear that such an allegation is sufficiently serious to invoke Eighth Amendment concerns. See Taylor, 946 F.3d at 219; Fussell,

584 F. App’x at 271; Smith, 244 F. App’x at 584.

Additionally, we have previously found that ordering a prisoner back into a tear-gas-filled cell

without supplies for decontamination could be sufficiently serious. Cardona v. Taylor, 828 F. App’x 198,

202 (5th Cir. 2020). Here, Hope has alleged that he

has been exposed to pepper spray and tear gas in his

cell “at least ten times through no fault of his own,”

that the cell was not decontaminated, and that on

one occasion he was “left nude in a cell with the pepper spray still on his body [without anything] to

clean it off with” for eight days. To the extent that

Hope complains that he has suffered physical harm

as a result of being exposed to such chemicals “unnecessarily dispensed” by Major Rehse, he has plausibly alleged a sufficiently serious condition. See

23a

Knighten v. John, No. 98-40644, 1999 WL 301376, at

*2 (5th Cir. Apr. 29, 1999). Taking these allegations

as true, these conditions are likewise sufficiently serious at this stage of the litigation.

Second, liberally construed, Hope’s complaint adequately alleges that Major Rehse knew of and disregarded the excessive risks to Hope’s health and

safety due to these allegedly unsanitary conditions.

Specifically, Hope alleges that “Major Rehse continue[s] to subject [him] to . . . unsanitary . . . living

conditions,” even though he is responsible for placing

prisoners in “sanitary” cells. He further alleges that

Major Rehse has instructed other officers not to turn

on the exhaust fans to clear the pepper spray and

tear gas and is “responsible for the frequent moves

and placing [him] into these unsanitary cells.” Hope

also goes on to allege that Major Rehse “personally

saw the black mold” on the cell wall. And these allegations are made against the backdrop of Hope’s allegation that he is no longer an escape risk. Accepting the allegations in Hope’s complaint as true, it is

at least plausible that Hope’s continued confinement

in these conditions is not a matter of reasonable policy judgment but is instead deliberate indifference.

See Fussell, 584 F. App’x at 271–72; see also Hope,

536 U.S. at 738.

In any event, by alleging that Major Rehse knew

of the unsanitary conditions and chemical agents,

which have an obvious risk of harm, Hope has sufficiently pleaded deliberate indifference as to those

unsanitary conditions and the chemical agents to

survive a motion to dismiss. Cf. Farmer, 511 U.S. at

848 (analyzing a prisoner’s ability to prove facts such

as subjective intent at summary judgment after the

development of the factual record). Therefore, we va-

24a

cate the district court’s dismissal of Hope’s Eighth

Amendment claims against Major Rehse and remand

for further proceedings.

At bottom, Hope has not had any opportunity to

take discovery or develop the record. Whether or not

the factual record, when developed more fully, will

ultimately show that the Eighth Amendment was

violated, the facts asserted in his pro se complaint

plausibly allege as much as to Major Rehse.

IV.

For the foregoing reasons, regarding Hope’s official-capacity claims, we AFFIRM the dismissal of

Hope’s procedural due process claim under the Fourteenth Amendment. Next, we VACATE the judgment

as to Hope’s retaliation claim under the First

Amendment as to Defendants Warden Harris and

Major Rehse and REMAND for further proceedings

consistent with this opinion. Similarly, we VACATE

the judgment as to Hope’s Eighth Amendment claim

only as to Defendant Major Rehse and REMAND for

further proceedings consistent with this opinion. But

we AFFIRM the dismissal of Hope’s Eighth Amendment claim as to all other Defendants.

Finally, the district court is DIRECTED to consider in the first instance Hope’s individual-capacity

claims.

25a

HAYNES, Circuit Judge, concurring in part and dissenting in part:

I concur with much of the majority opinion, but I

respectfully dissent in part as indicated here.1 While

I agree that there is subject matter jurisdiction for

the official capacity claims (limited, as stated, to prospective injunctive relief), I respectfully dissent from

the majority opinion’s treatment of Hope’s official

capacity Eighth Amendment and due process

claims2—I conclude that Hope’s factual allegations

are sufficient to state such claims against all Defendants in their official capacity.

As to the Eighth Amendment claims, the majority

opinion concludes that Hope can proceed only

against Rehse, and only in connection with certain

conditions of his confinement. To be sure, the grossly

unsanitary conditions of Hope’s confinement clearly

support an Eighth Amendment claim. But the major1 In addition to the discussion above, I agree with the ma-

jority opinion that Hope has stated a claim for retaliation

against Defendants Harris and Rehse, but I respectfully

dissent from the portion of the majority opinion that narrows the scope of Hope’s retaliation claim to just the seizure of Hope’s typewriter. Most significantly, the majority

opinion disregards a key part of the retaliatory incident—

namely, Hope being pepper sprayed and then left nude in

a cell for eight days (all the while covered in the spray).

Hope’s complaint makes clear that the pepper spray incident was part of the retaliation he experienced for filing a

grievance; it naturally flowed from—indeed, happened

only minutes after—the typewriter seizure. The underlying constitutional violation is therefore the same: retaliation in violation of the First Amendment. I would include

those aspects in the remand.

2 I agree with the remand of the individual claims.

26a

ity opinion fails to meaningfully address how the extraordinary length of Hope’s confinement affects

Hope’s other Eighth Amendment claims, failing to

recognize that other Defendants were plausibly deliberately indifferent to Hope’s suffering on multiple

fronts.

In particular, the extreme length of Hope’s solitary confinement should make it easier for him to

prove an Eighth Amendment violation, or (at the

very least) require additional justification from the

State to avoid liability. See Taylor v. Riojas, 141 S.

Ct. 52, 52–54 (2020) (per curiam) (concluding that

only six days of confinement in “deplorably unsanitary conditions” was an obvious violation of the

Eighth Amendment).3 That is so because the extreme

length affects both prongs of the Eighth Amendment

analysis. As to the first prong—requiring a “sufficiently serious” deprivation—the duration of his solitary confinement acts as a significant aggravating

factor, increasing the severity of the deprivation. See

Wilson v. Seiter, 501 U.S. 294, 304 (1991) (acknowledging that “[s]ome conditions of confinement may

establish an Eighth Amendment violation ‘in combination’ when each would not do so alone” (emphasis

omitted)); see also Hutto v. Finney, 437 U.S. 678,

685–87 (1978) (explaining how the length of conThe Taylor decision illustrates how extreme conditions

can give rise to an Eighth Amendment claim for even a

short durational period. 141 S. Ct. at 52–54. The calculus

obviously runs in the other direction, as well—an extremely long duration may reduce the need to demonstrate harsher conditions. See Hutto v. Finney, 437 U.S.

678, 686–87 (1978) (observing that “[a] filthy, overcrowded

cell and a diet of ‘grue’ might be tolerable for a few days

and intolerably cruel for weeks or months”).

3

27a

finement interacts with the conditions of confinement). As to the second prong—demonstrating that a

prison official acted with “deliberate indifference”—

the duration of his solitary confinement makes it

more likely that all of the Defendants were aware of

a constitutional deprivation and disregarded the

risk. Simply put, it is harder for all Defendants to

contend that they lacked awareness of Hope’s conditions over the course of twenty-six years, especially

given Hope’s numerous complaints and the fact that

he was a “high profile” inmate. I conclude Hope

should not be limited to pursuing such claims

against only Rehse.

The majority opinion also minimizes the full picture of Hope’s Eighth Amendment claims, narrowing

them to just his complaints about the unsanitary

conditions he experienced. In so doing, it largely

overlooks Hope’s Eighth Amendment mental health

claim, maintaining that he did not sufficiently brief

it on appeal. That is incorrect—Hope has argued, in

both his amended complaint and in his briefing on

appeal, that he suffers from “anxiety, depression,

visual and auditory hallucinations” and has

“thoughts of suicide.” Moreover, he has repeatedly

contended that the Defendants are aware of these

conditions because Hope “has told them of his symptoms and because the harms of long-term solitary

confinement are widely known.” These allegations

are sufficient to support an Eighth Amendment

claim based on Hope’s mental health.

At the very least, Hope stated such a claim

against Joni White, Assistant Director of Classifications. According to Hope’s complaint, White “was

contacted by outside advocates after years of Mr.

Hope sending her letters asking questions about his

28a

continued isolation” (demonstrating her awareness of

Hope’s prolonged isolation). White knew of “the effect

that long-term isolation takes on the brain” due to

her training (demonstrating her knowledge of the

risk of long-term confinement). Yet she maintained

that she would neither allow for nor recommend

Hope’s release from solitary confinement (demonstrating that she disregarded this risk), all because

of his 1994 escape. Such actions suggest deliberate

indifference; Hope should be allowed to pursue

claims against such alleged conduct.

As for Hope’s due process claim, the majority

opinion errs on virtually every step of the Mathews v.

Eldridge analysis. As to the first prong—the private

interest affected by the official action—the majority

opinion issues the conclusory statement that Hope’s

liberty interest is “low”; it seemingly assumes that

his liberty would be curtailed even in better prison

conditions therefore Hope’s deprivation is not over

and above what would normally be incident to prison

life. However, even a prisoner can assert such a

claim: Hope contends that he has been deprived of a

whole host of opportunities previously available to

him in the general population, including the ability

to socialize, to attend religious services, to receive

educational programming, and to work.4 For over

4 Specifically, Hope identifies that:

Prior to placement in solitary, he could see visitors face-to-face, attend religious services, participate in group vocational and educational programming, hold a job, socialize with other prisoners, and spend hours of his day outside his cell;

now, he is confined to a 9’x6’ cell for between 22

and 24 hours per day, allowed out only to exer-

29a

two decades, the beginning, middle, and end of every

day of Hope’s life has taken place in a single cell “no

larger than a parking space.”5 For the majority opinion to say—without citation or analysis, no less—

that the extremely restrictive conditions of Hope’s

confinement merely implicate a “low” liberty interest

thus overlooks the crux of his allegations.

As to the second prong—the risk of an erroneous

deprivation—the majority opinion is correct that

Hope had notice of the “factual basis” leading to his

solitary confinement, but wrong to conclude that he

clearly had “a fair opportunity for rebuttal.” Wilkinson v. Austin, 545 U.S. 209, 225–26 (2005). In

particular, if Hope is correct that the forty-eight SCC

hearings were a “sham,” then it would be as if he

never attended any hearings at all. At this stage of

litigation, his allegations plausibly support the conclusion that these proceedings were not, in fact, fair,

and so it is plausible that he has been erroneously

deprived of his liberty interests.

Finally, as to the third prong—the State’s interest—I strongly disagree with the majority opinion’s

suggestion that the State retains any meaningful interest in continuing to isolate Hope in solitary confinement. To be sure, there is little doubt that the

State had a strong interest in keeping the public safe

cise in a different enclosure.

In addition, Hope alleges that he has had only “one personal phone call since 1994” and is stripped searched, on

average, four times a day. In short, he plainly faces far

more significant impositions on his liberty than he faced in

normal prison life.

5 Hope specifically alleges that he spends 23 to 24 hours a

day in this cell.

30a

a few decades ago when Hope was first sent to solitary following his 1994 escape, but that justification

expired over fifteen years ago when the “escape risk”

designator was removed from his file (again, at this

procedural stage, his factual allegations must be accepted as true). That is a concession that the State

no longer has any interest in keeping Hope in solitary confinement. To say otherwise, as the majority

opinion does, effectively bars valid due process

claims based solely on an initial justification without

giving any consideration as to how that justification

has diminished—or, as here, completely evaporated—over time.6

For the foregoing reasons, I would reverse the

district court’s dismissal of Hope’s Eighth Amendment claims with respect to his unsanitary conditions of confinement and his mental health against

all Defendants, as well as the district court’s dismissal of his procedural due process claim (and expand

6 Moreover, I conclude that the State’s continued reliance

on Hope’s escape— over two decades ago—to justify keeping

him in solitary confinement constitutes “grossly disproportionate” punishment, subject to Eighth Amendment scrutiny. See Hutto, 437 U.S. at 685 (acknowledging that

“[c]onfinement in a prison or in an isolation cell is a form

of punishment subject to scrutiny under Eighth Amendment standards”); see also Montgomery v. Louisiana, 577

U.S. 190, 206 (2016) (acknowledging that “[p]rotection

against disproportionate punishment is the central substantive guarantee of the Eighth Amendment and goes

far beyond the manner of determining a defendant’s sentence”); Rhodes v. Chapman, 452 U.S. 337, 347 (1981)

(acknowledging that conditions of confinement must not

be “grossly disproportionate to the severity of the crime

warranting imprisonment”).

31a

the retaliation claims as to Harris and Rehse). Because the majority opinion fails to do so, I respectfully dissent.

32a

APPENDIX C

Not for Printed Publication

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

[filed May 5, 2020]

DENNIS WAYNE HOPE

§

VS.

§

TODD HARRIS, ET AL.

§

CIVIL ACTION NO.

9:18cv27

ORDER OVERRULING OBJECTIONS AND

ACCEPTING THE MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

Plaintiff Dennis Wayne Hope, an inmate at the

Polunsky Unit, proceeding pro se, brought the abovestyled lawsuit against Todd Harris, Chad Rehse,

Leonard Eschessa, Joni White, Kelly Enloe, Melissa

Benet, and B. Fiveash.

The court referred this matter to the Honorable

Zack Hawthorn, United States Magistrate Judge, at

Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate

Judge recommends that the defendants’ motion to

dismiss should be granted and plaintiff’s complaint

be dismissed with prejudice.

The court has received and considered the Report

and Recommendation of United States Magistrate

Judge filed pursuant to such referral, along with the

record and pleadings. Plaintiff filed objections to the

Magistrate Judge’s Report and Recommendation.

This requires a de novo review of the objections in re-

33a

lation to the pleadings and the applicable law. See

FED. R. CIV. P. 72(b).

After careful de novo consideration, the court concludes plaintiff’s objections are without merit. For

the reasons set forth in the Report, plaintiff’s claims

fail to state a claim upon which relief may be granted

and are frivolous. Accordingly, the defendants’ motion

to dismiss should be granted and the case dismissed.

Plaintiff paid the full filing fee in this prisoner

civil rights action. Accordingly, the Magistrate Judge

ordered the Clerk of Court to deliver summonses to

plaintiff so he could serve the defendants. While

plaintiff complains that the Magistrate Judge erred

in asserting plaintiff is proceeding in forma pauperis

when he paid the filing fee, such distinction does not

immunize plaintiff from the dismissal of his claims

pursuant to a motion to dismiss by the defendants or

dismissal under 28 U.S.C. § 1915A which applies to

all prisoner complaints even when the prisoner has

paid the required filing fee. See Martin v. Scott, 156

F.3d 578, 580 (5th Cir. 1998). Additionally, to the extent plaintiff contends the Magistrate Judge erred by

not conducting an evidentiary hearing to develop his

complaint, his objection lacks merit. In this case, the

Magistrate Judge did not recommend dismissal of the

case during his initial screening of the case. Instead,

the defendants were served and filed a motion to dismiss seeking dismissal of plaintiff’s claims against

them. The Magistrate Judge entered a Report addressing the defendants’ motion to dismiss and recommending the defendants’ motion be granted. The

court has liberally construed plaintiff’s allegations

and the factual allegations have been taken as true

and construed favorably to the plaintiff. Plaintiff’s

objection is without merit.

34a

Plaintiff also complains of his continued confinement in administrative segregation and his classification as “high profile” which makes him ineligible for

placement in a diversion program. However, “[i]t is

well settled that the decision where to house inmates

is at the core of prison administrators’ expertise.”

McKune v. Lile, 536 U.S. 24, 39 (2002); Meachum v.

Fano, 427 U.S. 215, 225 (1976). “Inmates have no

protectable property or liberty interest in custodial

classifications.” Whitley v. Hunt, 158 F.3d 882, 889

(5th Cir. 1998). Thus, plaintiff has no constitutional

right to be classified for release to general population.

Further, plaintiff has failed to show prison administrators’ decisions to continue his confinement in administrative segregation is not related to legitimate

penological interests based on his history of violence

and escape. As the Magistrate Judge observed, plaintiff’s record demonstrates he has a propensity to

commit violent crimes, as well as a history of possession and use of firearms, impersonating a public

servant or security officer, and escaping from custody

on two separate occasions. While plaintiff argues his

administrative segregation review hearings are not

meaningful, plaintiff concedes he is receiving due process hearings on a regular basis. Finally, plaintiff’s

allegations fail to rise to the level of a violation of the

Eighth Amendment with respect to either the conditions of his confinement or medical care. Plaintiff’s

allegations against the named defendants fail to

show the defendants’ actions rose to the level of the

deliberate indifference. Plaintiff has failed to show

the denial of a constitutional right. Accordingly,

plaintiff’s allegations fail to state a claim upon which

relief may be granted.

Plaintiff also complains of the defendants’ failure

35a

to follow prison rules and regulations. However, the

failure to follow prison regulations, rules or procedures does not rise to the level of a constitutional violation. Stanley v. Foster, 464 F.3d 565, 569 (5th Cir.

2006); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th

Cir. 1986). Therefore, plaintiff’s allegations fail to

state a claim upon which relief may be granted.

Additionally, plaintiff complains he was retaliated

against by the defendants. To state a valid claim for

retaliation, an inmate must prove “(1) he was exercising a specific constitutional right, (2) the defendant

intended to retaliate against the inmate for exercising that right, (3) a retaliatory adverse act occurred,

and (4) causation.” Morris v. Powell, 449 F.3d 682,

684 (5th Cir. 2006). To show causation, an inmate

must establish that “but for the retaliatory motive

the complained of incident ... would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

1995). Mere conclusory allegations of retaliation will

be insufficient to state a retaliation claim. Id.

In this case, plaintiff has failed to show either a retaliatory motive or causation regarding his claims

against the defendants. Plaintiff’s allegations of retaliation are conclusory and no more than mere speculation on the part of plaintiff. Plaintiff has failed to

produce either direct evidence of motivation or allege

a chronology of events from which retaliation may

plausibly be inferred. Thus, plaintiff has failed to

state a claim of retaliation under § 1983 against the

defendants. Accordingly, the defendants’ motion to

dismiss should be granted.

ORDER

For the reasons set forth above, as well as in the

Report of the Magistrate Judge, plaintiff has failed to

36a

state a claim upon which relief may be granted or are

frivolous. Accordingly, plaintiff’s objections are

OVERRULED. The findings of fact and conclusions

of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ACCEPTED. It is

ORDERED that the defendants’ motion to dismiss

is GRANTED, and plaintiff’s claims are dismissed

with prejudice. A final judgment will be entered in

this case in accordance with the Magistrate Judge’s

recommendations.

So Ordered and Signed

May 5, 2020

/s/ Ron Clark

Ron Clark, Senior District Judge

37a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

[filed March 9, 2020]

DENNIS WAYNE HOPE

§

VS.

§

TODD HARRIS, ET AL.

§

CIVIL ACTION NO.

9:18cv27

REPORT AND RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

Plaintiff Dennis Wayne Hope, an inmate confined

at the Polunsky Unit of the Texas Department of

Criminal Justice, Correctional Institutions Division,

proceeding pro se and in forma pauperis, brings this

action pursuant to 42 U.S.C. § 1983.

The above-styled action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §

636 and the Local Rules for the Assignment of Duties

to the United States Magistrate Judge for findings of

fact, conclusions of law, and recommendations for the

disposition of the case.

Discussion

Plaintiff, an inmate confined in the Security

Housing Unit (“SHU”) at the Polunsky Unit, has

submitted an extensive list of complaints about the

conditions of his confinement. Plaintiff claims he has

been held in Administrative Segregation continuously for the last twenty-three years and has been told

he cannot be transferred from this environment because he has an escape on his record. Plaintiff com-

38a

plains he is confined to his cell for twenty-three

hours per day for 191 days a year and twenty-four

hours per day on the remaining 174 days of the year.

However, plaintiff later states he is allowed out of

his cell two hours per day for recreation five days per

week.

Plaintiff claims he is fed in his cell through a tray

slot opening in the cell door and is fed on unsanitary

food trays and, as a result, he claims he has suffered

incidents of food poisoning. Additionally, plaintiff

complains that the meals are cold even though they

are delivered in a “Hot Cart.” Plaintiff alleges the

food portions given to inmates in Administrative

Segregation are smaller than the portions given to

inmates and General Population, and they are not

provided many of the condiments provided to General Population inmates such as mustard and syrup.

Next, plaintiff complains he is required to submit

to a strip search prior to being removed from his cell

for any reason. He claims he is strip searched, on average, four times per day. Plaintiff states he is required to squat down to place his hands through the

tray slot to be hand-cuffed, straining his shoulders

and rotator cuffs. However, according to plaintiff, defendants Harris, the unit warden, and Rehse, the

unit major, refuse to allow him to be handcuffed in

the front of his body. Plaintiff claims the defendants

are deliberately indifferent to his medical needs.

Plaintiff also complains he is limited in the

amount and kind of property he can possess in the

SHU. He claims this reduces the amount of reading

material and other personal items he may possess,

and the amount of property is smaller than inmates

in General Population are allowed. Plaintiff com-

39a

plains he cannot possess a razor, pencil sharpener or

clothing that has elastic in it.

Next, plaintiff complains that due to being housed

alone in his administrative segregation cell, he is denied almost all human contact, and his only human

contact is with officers and medical staff. Plaintiff

claims he is denied contact visitation with his family

and has to visit through a plexiglass partition and

talk over a phone.

Plaintiff claims he also is denied access to a television, and is only permitted to use a telephone in an

emergency situation after approval by unit administration. Plaintiff complains he is only permitted to

call persons on his approved visitor list which consists of ten people instead of the twenty people allowed for prisoners in General Population.

Plaintiff complains that his housing area is loud

all hours of the day due to both inmates and officers.

Plaintiff claims this deprives him of “quality sleep

and only allows him to sleep fitfully several hours at

a time.” Plaintiff claims this adds to his anxiety and

depression.

Plaintiff claims he has been indirectly exposed to

the use of chemical agents at least ten times in the

last two years through no fault of his own. Plaintiff

claims prison officials are aggressive and careless

with their use of chemical agents and use them in

excessive amounts in unwarranted situations with

no regard to the other prisoners they expose to these

gases.

Next, plaintiff complains the SHU is locked down

a minimum of four times a year compared to two

lock-downs per year in General Population. In addi-

40a

tion to the lock-downs, plaintiff claims cells are randomly searched and inspected every other day. While

on lock-down, plaintiff complains that he is given a

“Johnny” consisting of two sandwiches in a sack for

each meal, and one of the sandwiches is peanut butter. Plaintiff complains the sack lunches have less

calories than the food served on trays and has subjected him to weight loss and constipation. Plaintiff

claims that during the lock-downs the walkways are

not mopped and showers are not cleaned. As a result,

plaintiff claims the showers have mold and mildew

on the walls.

Plaintiff also complains his access to legal materials is reduced due to his housing location. As a result, plaintiff claims research takes him longer than

if he were allowed to go to the law library. Additionally, plaintiff claims he is denied access to other prisoners knowledgeable in the law.

Next, plaintiff claims that following an incident in

2012 in which a ten inch screwdriver was found in

his cell or property, he has been moved to a different

cell each week to harass him and retaliate against

him. Plaintiff claims both Warden Harris and Major

Rehse order his weekly moves as a form of harassment and without penological reason.

Plaintiff claims that when he moves into a new

cell it is not disinfected or otherwise cleaned, and he

is not provided with cleaning supplies. On some occasions, plaintiff claims he was moved into a cell

with no lights. On December 21, 2017, plaintiff

claims he was moved into a cell with mold on the

back wall and floor. He claims he remained in that

cell for thirteen days and began coughing. Plaintiff

claims that it took outside advocates contacting the

41a

warden to get him moved from the cell. Plaintiff

claims defendant Rehse saw the mold on the back

wall of his cell on December 26, 2017, but it was only

after Assistant Warden Jefferson sent someone to

inspect the cell and saw the mold growth that she

ordered him removed from the cell.

Plaintiff complains that, due to his housing classification requiring an escort everywhere he goes, he

has no privacy when consulting with medical or mental health professionals. Plaintiff claims the lack of

escort officers is not uncommon resulting in delayed

or cancelled appointments and medical or mental

health personnel frequently making cell-side visits

where other prisoners can listen. Plaintiff also claims

he has reported to mental health professionals that

he deals with bouts of anxiety, depression, and visual

and auditory hallucinations but he has been denied

treatment for these conditions.

Plaintiff states the Administrative Segregation

Committee conducts a hearing concerning his confinement at thirty-day intervals, but he is not allowed to attend. Plaintiff complains that the committee has no authority to release him and the reviews

are a sham and meaningless because the State Classification Committee has already decided he will remain in the SHU for the next 180 days. Plaintiff

states he is reviewed by the State Classification

Committee every 180 days to determine whether he

will remain in the SHU or be released to general

population.

On June 24, 2016, plaintiff claims he was reviewed by SCC member Melissa Benet. Plaintiff

made both an oral and written statement at the

hearing. After she looked over his file, plaintiff

42a

claims Benet told him she saw no reason not to release him to a transitional program. However, he

later received his hearing record in the mail, and it

indicated he was to remain in the SHU without further explanation. At a subsequent hearing on December 3, 2016, plaintiff claims he asked Benet why

he was not released to the transitional program like

she told him in June of 2016. Plaintiff states Benet

told him “you are high profile, I don’t have the authority to release you.” Thus, plaintiff claims Benet’s

review was perfunctory and a sham used to provide

him due process. Plaintiff claims he saw another

SCC member, Ms. Enlow, on June 8, 2017 and when

he requested release he was informed “that’s not my

decision.” Plaintiff claims he was later reviewed by

SCC member defendant Bonnie Fiveash. Plaintiff

claims Fiveash told him “you’re still in good shape I

can’t release you.” When asked if it was ever her call

to make, plaintiff claims Fiveash told him “that

would be the Director’s call.” Plaintiff complains that

he has not been told what he must do to be released

to General Population. Plaintiff claims defendant

Eschessa, the Deputy Director of Operations has the

capacity to release him to General Population, but

Eschessa would not review his file. Plaintiff also

claims defendant White, Assistant Director of Classifications, was contacted by outside advocates and

stated she would not allow his release or make recommendations for his release. White stated that because plaintiff escaped in 1994 she does not want the

responsibility that goes along with making that decision. Plaintiff claims White has instructed all SCC

members that plaintiff is to remain in the SHU.

Plaintiff claims that in December, 2005, the Security Precautions Designator Committee reviewed and

43a

removed the escape risk designator from his file. Accord to plaintiff, they determined he was not an escape risk. However, he remains confined in the SHU

and has been denied any meaningful review. Further, plaintiff claims he is not eligible to see a parole

commissioner for release on parole due to his confinement in Level 1 Security Detention status.

Plaintiff claims the appeal process for SCC decisions is for an inmate to file a grievance. However, it

is meaningless for a prisoner to appeal a decision of

the State Classification Committee. Plaintiff claims

he is being retaliated against for filing grievances.

Finally, plaintiff complains that the confiscation

of his typewriter without compensation is theft.

Plaintiff claims the typewriter was being used to file

the grievances it “becomes obvious the motive for the

confiscation.”

The Defendants’ Motion to Dismiss

Pending before the court is a motion to dismiss

plaintiff’s amended complaint filed by the defendants

(docket entry no. 20). The defendants contend plaintiff’s claims should be dismissed for lack of subjectmatter jurisdiction based on the Eleventh Amendment. Additionally, the defendants move for dismissal of plaintiff’s complaint for failure to state a claim

upon which relief may be granted.

Standard of Review

An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) if it: (1)

is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks monetary

relief from a defendant who is immune from such relief.

44a

A complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it

lacks an arguable basis either in law or fact. Neitzke

v. Williams, 490 U.S. 319, 325 (1989); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); McCormick v.

Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis in law if it is based on

an indisputably meritless legal theory. See Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

In addition to the legal basis of the complaint,

Section 1915 empowers the court to pierce the veil of

the complainant’s factual allegations if they are

clearly baseless. Denton v. Hernandez, 504 U.S. 25,

32 (1992); Ancar v. Sara Plasma, Inc., 964 F.2d 465

(5th Cir. 1992). A complaint lacks an arguable basis

in fact if, after providing the plaintiff the opportunity

to present additional facts when necessary, the facts

alleged are clearly baseless. Denton, 504 U.S. at 32.

In Denton v. Hernandez, the Supreme Court “declined the invitation to reduce the clearly baseless

inquiry to a monolithic standard.” Denton, 504 U.S.

at 33. Examples of complaints within the clearly

baseless inquiry are those which describe fanciful,

fantastic, or delusional scenarios. A complaint is factually frivolous if the facts alleged rise to the level of

the irrational or wholly incredible. Pleaded facts

which are merely improbable or strange, however,

are not clearly baseless for Section 1915(d) purposes.

Id.

Failure to State a Claim

Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is

entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule

45a

12(b)(6) authorizes the court to dismiss a complaint

for “failure to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6).

A complaint fails to state a claim upon which relief may be granted if the factual allegations are not

sufficient to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929

(2007). Dismissal for failure to state a claim is appropriate when the plaintiff has failed to plead “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)

(quoting Twombly, 550 U.S. 544, 570). Plaintiffs

must state enough facts to “nudge[] their claims

across the line from conceivable to plausible.”

Twombly, 550 U.S. 544, 570.

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678.

At this stage, a court “must accept all well-pleaded

facts alleged in the complaint as true and must construe the allegations in the light that is most favorable to the plaintiff.” Cent. Laborers’ Pension Fund v.

Integrated Elec. Servs., 497 F. 3d 546, 550 (5th Cir.

2007). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

678. “[R]egardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory

allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion

to dismiss.” Taylor v. Books a Million, Inc., 296 F.3d

46a

376, 378 (5th Cir. 2002) (internal quotations omitted).

Analysis

I.

Elements of a Cause of Action under 42 U.S.C.

§ 1983

Title 42 U.S.C. § 1983 authorizes a suit in equity,

or other proper proceeding for redressing violations

of the Constitution and federal law by those acting

under color of state law. See Nelson v. Campbell, 541

U.S. 637, 643 (2004); Conn v. Gabbert, 526 U.S. 286,

290 (1999). It provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State ... subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured ....

42 U.S.C. § 1983.

II.

Eleventh Amendment Immunity

The Eleventh Amendment provides that the State

of Texas, as well as its agencies, are immune from

liability. Kentucky v. Graham, 473 U.S. 159, 167, 105

S.Ct. 3099, 87 L.Ed.2d 114 (1985). The Eleventh

Amendment bars claims against a state brought pursuant to 42 U.S.C. § 1983. Aguilar v. Texas Dept. of

Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.

1998). In Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45

(1989), the Supreme Court held that “neither a State

nor its officials acting in their official capacities are

‘persons’ under § 1983.” The Supreme Court upheld

47a

the dismissal of the Michigan Department of State

Police and its Director sued in his official capacity.

Id. The Fifth Circuit has accordingly “held that the

Eleventh Amendment bars recovering § 1983 money

damages from TDCJ officers in their official capacity.” Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002).

However, “the Eleventh Amendment permits suits

for prospective injunctive relief against state officials

acting in violation of federal law.” Frew ex rel. Frew

v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 157 L.

Ed. 2d 855 (2004); Aguillar, 160 F. 3d at 1054.

The narrow exception to Eleventh Amendment

immunity from suit, the Ex parte Young exception,

“is based on the legal fiction that a sovereign state

cannot act unconstitutionally[; t]hus, where a state

actor enforces an unconstitutional law, he is stripped

of his official clothing and becomes a private person

subject to suit.” K.P. v. LeBlanc, 627 F.3d 115, 124

(5th Cir. 2010). “In order to use the Ex Parte Young

exception, a plaintiff must demonstrate that the

state officer has ‘some connection’ with the enforcement of the disputed act.” Id. In determining whether the doctrine of Ex parte Young avoids the bar to

suit under the Eleventh Amendment, a court need

only conduct a straightforward inquiry into whether

[the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. V. Pub. Serv. Comm’n,

535 U.S. 635, 645 (2002).

In his complaint, plaintiff alleges that defendants

Harris and Rehse are responsible for ensuring that

prisoners in the SHU are housed in sanitary conditions and not subjected to harassment, retaliation or

cruel and unusual punishment. Plaintiff also alleges

certain defendants failed to follow prison policy re-

48a

garding the review of his classification status. Plaintiff, however, must first demonstrate he meets the

three elements of Article III standing; (1) injury in

fact; (2) causation; and (3) redressability. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The redressability element of the test for standing

requires that a favorable decision for the plaintiff

will likely, not merely speculatively, redress the

plaintiff’s injury. Id. Additionally, the court must

gauge (1) the ability of the official to enforce the

statue at issue under his statutory or constitutional

power, and (2) the demonstrated willingness of the

official to enforce the statute. Okpalobi v. Foster, 244

F.3d 405, 425-27 (5th Cir. 2001). Defendants Harris

and Rehse are no longer the warden at the Polunsky

Unit. Further, plaintiff’s complaint reveals that the

ability to address his complaints lies with the Director of the prison system based on plaintiff’s history of

violence and escape.1 The defendants in this action

do not have the ability to release plaintiff from confinement in the Special Housing Unit. Therefore, a

favorable decision for plaintiff will not allow the defendants to address plaintiff’s complained of injury.

1 The TDCJ Offender Information website reveals plain-

tiff is serving multiple cumulative sentences for five aggravated robberies with a deadly weapon, impersonating a

public servant/security officer, and two separate escapes

from custody. Further, plaintiff has seventy-five years’ imprisonment remaining to satisfy his maximum sentence. See

https://offender.tdcj.texas.gov/OffenderSearch/search.action.

Additionally, plaintiff has federal convictions for carjacking,

robbery, using a firearm during the commission of a crime

of violence, and illegally possessing a firearm. See United

States v. Hope, 102 F.3d 114 (5th Cir. 1996).

49a

Accordingly, the defendants’ motion to dismiss

should be granted.

III.

Due Process - Classification

Plaintiff alleges his classification and continued

confinement in administrative segregation violates

his right to due process. Additionally, while plaintiff

concedes he receives reviews by the Administrative

Segregation Committee every thirty days and reviews by State Classification Committee members

which he attends every 180 days, plaintiff complains

the reviews are not meaningful because he has not

been released from administrative segregation to

general population.

It is well settled in the Fifth Circuit that an inmate has no protected interest in any particular custody or security classification, once incarcerated. See

Wilkerson v. Stalder, 329 F.3d 431, 435-36 (5th Cir.),

cert. denied, 124 S.Ct. 432 (2003); Harper v. Showers,

174 F.3d 716, 719 (5th Cir. 1999); Whitley v. Hunt,

158 F.3d 882, 889 (5th Cir. 1998). The classification

of prisoners is a matter within the discretion of prison officials. McCord v. Maggio, 910 F.2d 1248, 1250

(5th Cir. 1990). Therefore, absent an abuse of discretion, a federal court will not interfere with administrative determinations regarding custodial classification of an inmate. Whitley, 158 F.3d at 889. In

Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 1996), the

court stated that “absent extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life as a prisoner, will never be

a ground for a constitutional claim.” Id. at 612-613;

see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005)

(“[T]he Constitution itself does not give rise to a lib-

50a

erty interest in avoiding transfer to more adverse

conditions of confinement.”).

Plaintiff admits he is receiving regular reviews by

the defendants in this action. As set forth above, a

review of plaintiff’s complaint reveals that the ability

to address his complaints regarding release from

administrative segregation lies solely with the Director of the prison system. A review of plaintiff’s federal criminal appeal provides some background for why

the director may have retained sole authority regarding plaintiff’s possible release to General Population.

On November 26, 1994, plaintiff made his second escape from the Texas state prison system and later

stole a car at knife point. See United States v. Hope,

102 F.3d 114, 115 (5th Cir. 1996). Plaintiff severely

cut the 83-year-old driver of the car, dropped him off

on the side of the road, and proceeded on a crime

spree of armed robberies until his arrest in Memphis,

Tennessee approximately two months later. Id. at

115-16.

As previously stated, the classification of prisoners is a matter within the discretion of prison officials. Here, given plaintiff’s history of violence and

escapes, plaintiff has failed to show an abuse of discretion. Further, the defendants are providing plaintiff with due process reviews of his classification in

accordance with their authority. Thus, plaintiff’s

claims fail to state a claim upon which relief may be

granted and the defendants’ motion to dismiss

should be granted.

IV.

Conditions of Confinement

Plaintiff asserts an extensive list of complaints

about the conditions of his confinement including the

cleanliness of his cells and eating utensils, the quali-

51a

ty and quantity of food served in confinement, a restriction on the amount of property he can maintain

in his cell, the fact he is served peanut butter sandwiches during lock-downs approximately four times

per year, the lack of condiments such as syrup and

mustard, and the alleged indirect exposure to chemical agents.

The Constitution does not mandate comfortable

prisons but neither does it permit inhumane ones.

Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).

“The Eighth Amendment’s prohibition against cruel

and unusual punishment imposes minimum requirements on prison officials in the treatment received by and facilities available to prisoners.” Woods

v. Edwards, 51 F.3d 577 (5th Cir. 1995). The Supreme Court noted in Farmer that: In its prohibition

of “cruel and unusual punishments,” the Eighth

Amendment places restraints on prison officials, who

may not, for example, use excessive force against

prisoners. The Amendment also imposes duties on

these officials, who must provide humane conditions

of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and

medical care, and must “take reasonable measures to

guarantee the safety of the inmates.” Farmer, 511

U.S. at 823.

A constitutional violation, however, occurs only

when two requirements are met. First, there is an

objective requirement that the condition “must be so

serious as to ‘deprive prisoners of the minimal civilized measure of life’s necessities,’ as when it denies

the prisoner some basic human need.” Harris v.

Angelina County, Texas, 31 F.3d 331, 334 (5th Cir.

1994) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.

Ct. 2321 (1991)). Second, under a subjective stand-

52a

ard, the court must determine whether the prison

official responsible acted with deliberate indifference

to inmate health or safety. Farmer, 511 U.S. at 834;

see e.g., Harris, 31 F.3d at 334-36. The deliberate indifference standard can be appropriately applied to

allegations regarding the conditions of confinement.

Woods, 51 F.3d at 580.

In Farmer, the Supreme Court adopted “subjective recklessness as used in the criminal law” as the

appropriate definition of deliberate indifference under the Eighth Amendment. Farmer, 511 U.S. at

839-40. Under this definition, 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 draw the inference. Farmer, 511 U.S.

at 837. A prison official acts with deliberate indifference “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by

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

at 847.

“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). Deliberate

indifference encompasses only the unnecessary and

wanton infliction of pain repugnant to the conscience

of mankind. McCormick v. Stalder, 105 F.3d 1059,

1061 (5th Cir. 1999). To satisfy the exacting deliberate indifference standard, a defendant’s conduct

must rise “to the level of egregious intentional conduct.” Gobert v. Caldwell, 463 F.3d 339, 351 (5th Cir.

2006).

53a

While the conditions of plaintiff’s confinement

may be unpleasant and possibly harsh, plaintiff has

failed to show the conditions were objectively so serious as to deprive plaintiff of the minimal civilized

measure of life’s necessities. Plaintiff has failed to

show such conditions rise to the level of a constitutional violation, nor has he satisfied the extremely

high standard of showing the defendants acted with

deliberate indifference. Accordingly, the defendants’

motion to dismiss should be granted.

Additionally, plaintiff complains he is restricted

in the amount of personal and legal property he may

possess in his cell and that his access to legal materials is reduced due to his housing location. As a result, plaintiff claims research takes him longer than

if he were allowed to go to the law library. Further,

plaintiff claims he is denied access to other prisoners

knowledgeable in the law. However, plaintiff has

failed to allege or demonstrate any harm associated

with such claims.

Next, to the extent plaintiff complains that the

defendants’ actions were retaliatory, plaintiff’s retaliation claim fails to state a claim upon which relief

may be granted. To state a valid claim for retaliation

“an inmate must allege the violation of a specific

constitutional right and be prepared to establish that

but for the retaliatory motive the complained of incident ... would not have occurred.” Woods v. Smith, 60

F.3d 1161, 1166 (5th Cir. 1995). Mere conclusory allegations of retaliation will be insufficient to state a

retaliation claim. See Id.

In this case, plaintiff has failed to show either a

retaliatory motive or causation regarding his claims

against the defendants. Plaintiff has failed to pro-

54a

duce either direct evidence of motivation or allege a

chronology of events from which retaliation may

plausibly be inferred. Plaintiff’s allegations of retaliation are no more than mere speculation on the part

of plaintiff. Thus, plaintiff has failed to state a claim

of retaliation under § 1983 against the defendants.

Accordingly, the defendants’ motion to dismiss

should be granted.

V.

Medical Care

Plaintiff complains that, because of his custodial

status and the requirement that he is to be escorted

everywhere he goes, he often is not able to attend

medical appointments due to lack of security personnel. Additionally, plaintiff complains that he suffers

from bouts of anxiety, depression, and visual and auditory hallucinations but when he has reported these

bouts or symptoms to mental health personnel, he

has been denied treatment.

The deliberate indifference to serious medical

needs of prisoners constitutes the unnecessary and

wanton infliction of pain proscribed by the Eighth

Amendment, whether the indifference is manifested

by prison doctors or by prison guards in intentionally

denying or delaying access to medical care. Estelle v.

Gamble, 429 U.S. 97, 104-05 (1976); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). “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). Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind.

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1999). To satisfy the exacting deliberate indifference

standard, a defendant’s conduct must rise “to the

55a

level of egregious intentional conduct.” Gobert v.

Caldwell, 463 F.3d 339, 351 (5th Cir. 2006).

The Supreme Court has adopted “subjective recklessness as used in the criminal law” as the appropriate definition of deliberate indifference under the

Eighth Amendment. Farmer, 511 U.S. 825, 839-40

(1994). Under this definition, 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 draw the inference. Farmer, 511 U.S. at

837. Under exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be

inferred by the obviousness of the substantial risk.

Id; Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994).

Medical records of sick calls, examination, diagnoses,

and medications may rebut an inmate’s allegations of

deliberate indifference. See Varnado v. Lynaugh, 920

F.2d 320 (5th Cir. 1991).

While plaintiff complains he missed some medical

appointments due to the lack of security personnel

required for escorting him, plaintiff admitted medical

personnel would make cell-side visits for him. Further, plaintiff has failed to allege or demonstrate

harm associated with the format of his medical visits. Additionally, plaintiff claims he suffers from

bouts of anxiety, depression, and visual and auditory

hallucinations but when he has reported these bouts

or symptoms to mental health personnel, he has been

denied treatment. However, plaintiff has failed to allege facts demonstrating the defendants possessed a

“sufficiently culpable state of mind” rising to the level of deliberate indifference or that his claims are

56a

anything more than a disagreement with the medical

professionals over the proper course of treatment.

See Farmer, 511 U.S. at 834, 839-40. Thus, plaintiff’s

allegations fail to rise to the level of egregious intentional misconduct required to satisfy the exacting deliberate indifference standard. See Gobert, 463 F.3d

at 351. Negligence does not constitute a violation of

the Eighth Amendment. Unsuccessful medical

treatment, acts of negligence or medical malpractice,

and disagreements as to diagnosis or treatment do

not constitute deliberate indifference. Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Dissatisfaction with medical treatment or diagnosis does

not constitute “deliberate indifference” to a serious

medical need and does not rise to the level of the denial of a constitutional right. Estelle v. Gamble, 429

U.S. at 106; Johnson v. Treen, 759 F.2d 1236, 1238

(5th Cir. 1985). At most, plaintiff’s allegations constitute nothing more than negligence or a disagreement

with the medical professionals over the proper course

of treatment. Plaintiff has failed to show either that

the defendants acted with deliberate indifference or

that he was harmed as a result of the defendants’ actions. Therefore, the defendants’ motion to dismiss

should be granted.

Additionally, the defendants’ alleged failure to

follow prison regulations, rules or procedures does

not rise to the level of a constitutional violation.

Stanley v. Foster, 464 F.3d 565, 569 (5th Cir. 2006);

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir.

1986). Therefore, plaintiff’s allegations fail to state a

claim upon which relief may be granted. Thus, the

defendants’ motion should be granted.

57a

VI.

Deprivation of Property

Finally, plaintiff complains that the confiscation

of his typewriter without compensation is theft.

Plaintiff claims the typewriter was being used to file

the grievances it “becomes obvious the motive for the

confiscation.”

A claim that an individual has been deprived of

property by a person acting under color of law states

a claim for a violation of the due process clause of the

Fifth Amendment to the United States Constitution.

Deprivations of property by prison officials, however,

even when intentional, do not violate the due process

clause so long as an adequate post-deprivation remedy exists. See Hudson v. Palmer, 468 U.S. 517, 533,

104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Geiger v. Jowers, 404 F.3d 3771, 374 (5th Cir. 2005)

(concluding that plaintiff failed to state a claim regardless of whether the deprivation of property was

the result of negligence or intentional misconduct).

Texas provides such a remedy. See Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994) (holding

that, in Texas, the tort of conversion is an adequate

post-deprivation remedy); Thompson v. Steele, 709

F.2d 381, 383 (5th Cir. 1983) (holding that a state

action for damages is an adequate remedy), cert. denied, 464 U.S. 897 (1983). As a result, plaintiff has

failed to establish his constitutional rights were violated in connection with the deprivation of property.

Further, plaintiff’s claim of retaliation, as explained

above, is speculative and conclusory. Thus, plaintiff’s

allegations are insufficient to state a claim upon

which relief may be granted. Accordingly, plaintiff’s

claims are frivolous and fail to state a claim upon

which relief may be granted.

58a

Recommendation

The defendants’ motion to dismiss should be

granted. Accordingly, plaintiffs’ complaint should be

dismissed with prejudice.

Objections

Within fourteen days after being served with a

copy of the magistrate judge’s report, any party may

serve and file written objections to the findings of

facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed

findings of facts, conclusions of law and recommendations contained within this report within fourteen

days after service shall bar an aggrieved party from

the entitlement of de novo review by the district

court of the proposed findings, conclusions and recommendations and from appellate review of factual

findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass

v. United Services Automobile Association, 79 F.3d

1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. §

636(b)(1); FED. R. CIV. P. 72.

SIGNED this 9th day of March, 2020.

/s/ Zack Hawthorn

Zack Hawthorn

United States Magistrate Judge

59a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

[filed June 18, 2018]

DENNIS WAYNE HOPE

VS.

Civil No. 9:18-cv-0027

TODD HARRIS, et al.,

AMENDED COMPLAINT

Jurisdiction and Venue

1.

This is an action for injunctive, declaratory

and monetary relief for violations of the Eight and

Fourteenth Amendments of the United States

Constitution and 42 U.S.C. § 1983. Jurisdiction lies

under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).

2.

Venue for this action lies in the Court under

28 U.S.C. § 1391 (b)(2) because the events and

omissions giving rise to the claims occurred in the

Eastern District of Texas.

3.

Plaintiff relies on Rule 15 (a), Fed. R. Civ. P.

to amend this complaint without leave of the Court

or agreement of defendants. The date of service for

Defendants answer was June 1, 2018.

PARTIES

4.

Plaintiff Dennis Wayne Hope is a person of

full age of majority who is and was incarcerated in

the Texas Department of Criminal Justice–

Institutional Division (herein after TDCJ-ID),

Polunsky Unit in Livingston, Texas.

5. Defendant Todd Harris is the Senior Warden

at the Polunsky Unit within TDCJ-ID in Livingston,

60a

Texas. He is aware of the conditions and treatment

of which plaintiff complains and has refused to take

action to correct the situation. He is denying Plaintiff

his Due Process and violating his Eigth and

Fourteenth Amendments of the United States

Constitution. He is being sued in his official and

individual capacities.

6.

Defendant Chad Rehse is the Major at the

Polunsky Unit within TDCJ-ID in Livingston, Texas.

He oversees the conditions of confinement and

treatment of prisoners in Administrative Segregation

(herein after Ad. Seg.) and at various times pertinent

herein was a member of the State Classification

Committee (herein after SCC). He is denying

Plaintiff his Due Process and Eight and Fourteenth

Amendments of the United States Constitution. He

is being sued in his official and individual capacities.

7.

Defendant Leonard Echessa is the Deputy

Director of Support Operations within TDCJ-ID and

is responsible for the overall treatment, conditions of

confinement and classifications of Plaintiff at various

times pertinent herein. He is aware of the situation

and has refused to take corrective actions and correct

the situation. He is denying Plaintiff his Due Process

and Eigth and Fourteenth Amendments of the

United States Constitution. He is being sued in his

official and individual capacities.

8.

Defendant Joni White is the Assistant

Director of Classifications within TDCJ-ID and

responsible for the overall classifications of the

department, including Ad. Seg., at various times

pertinent herein. She is aware of the situation and

refuses to correct the situation or take corrective

action. She is denying Plaintiff his Due Process and

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Eigth and Fourteenth Amendments of the United

States Constitution. She is being sued in her official

and individual capacities.

9.

Defendant Kelly Enloe was the Chairperson

for the SCC and is now a member of the SCC within

TDCJ-ID. She is responsible for conducting reviews

of prisoners in their classifications. She is aware of

the situation and refused to take corrective action.

She is denying Plaintiff Due Process and Eight and

Fourteenth Amendments of the United States

Constitution. She is being sued in her official and

individual capacities.

10. Defendant Melissa Benet is a member of the

SCC within TDCJ-ID and responsible for conducting

reviews of prisoners classifications. She is aware of

the situation and refused to take corrective action.

She is denying Plaintiff his Due Process and Eight

and Fourteenth Amendments of the United States

Constitution. She is being sued in her official and

individual capacities.

11. Bonnie Fiveash is a member of the SCC

within TDCJ -ID and responsible for conducting

reviews of prisoners classifications at various times

pertinent herein. She is aware of the situation and

refused to take corrective action. She is denying

Plaintiff Due Process and Eight and Fourteenth

Amendments of the United States Constitution. She

is being sued in her official and individual capacities.

FACTUAL ALLEGATIONS

Plaintiff Dennis Wayne Hope is a 49 year old

prisoenr who has been continiously held in solitary

confinement (Ad. Seg.) for over twenty-three (23)

years.. He is currently housed on the Security

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Housing Unit (“SHU”) at the Polunksy Unit with

“Death Row”. He is housed in a 9’x 6’ single cell no

larger than a parking space and about 3’x 3’ of that

space is all that’s left for him to move around in the

cell- He remains in this cell 24 hours a day on

average of 174 days a year. The remaining 191 days

in the year he spends an average of 23 hours a day in

the cell.

13. All meals given to Mr. Hope is done so

through a tray slot opening in the cell door.

Everything passed to him comes through the tray

slot. He eats all of his meals alone and in the cell.

Many of the food trays he is given are dirty and

unsanitary. The trays often have food on them from

previous meals or grooves carved in them from other

prisoners. These trays are only used for solitary

confinement prisoners.

Prisoners in general

population (herein after G.P.) don’t deal with these

unsaitary trays. These trays have actually caused

prisoenrs to get sick from the “Norovirus”. The meals

are cold even though delivered in a “Hot Cart” and

the food portions are noticeably smaller than those

given to G.P. prisoners. Many of the condiments like

mustard and syrup are not provided to solitary

confinement prisoners because they are more

difficult to remove from the trays and floors after

having sat for hours. Warden Harris and Maior

Rehse continue to subject Mr. Hope to these

unsanitary feeding and living conditions. In the over

23 years Mr. Hope has been subjected to this

treatment he has suffered food poisoning over a

dozen of times.

14. Prior to being removed from the cell for any

reason Mr. Hope is required to submit to a strip

search. For over 23 years he has been unnecessarily

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removed of his dignity. On average he is strip

searched four (4) times daily just to participate in

recreation and shower. Deputy Director Eschessa,

Warden Harris and Maior Rehse have all ordered

Ad. Seg. prisoners be treated in this manner.

Prisoners in G.P. might get pat searched once a day

depending on where they are going. Mr. Hope is then

required to squat down with his hands placed behind

his back and place his hands through a tray slot to

be handcuffed. Failure to comply with this order can

result in him being disciplinary or gassed with a

chemical agent (pepper spray). Mr. Hope suffers from

chronic lower back pain and the bending at that

angle causes him great pain in his lower back and

places great strain on his shoulders and rotator cuffs.

Warden Harris and Maior Rehse are aware of this

and refuse to allow him to be handcuffed in the front

thereby subjecting him to unnecessay physical pain

and being deliberately indifferent to hi medical

needs.

15. While in the “SHU” Mr. Hope is limited to

how much property and what kind of property he can

possess. He is only allowed to possess two (2) cubic

feet (l’x l’x 2’) of property. This drastically reduces

the amount of reading material, clothing, pictures

and other personal items such as commissary

hygiene items. This amount is significantly smaller

than that of G.P. prisoners as is the amount of

commissary too. Additionally, he cannot possess a

razor, pencil sharpener or clothing that has elastic in

it.

16. Due to beinghoused in solitary confinement

Mr. Hope is denied almost all human contact. the

only human contact he has had with another human

in the last 23 years is with officers and medical staff.

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He is denied contact visits with family and when

allowed visits it is done through a plexiglass

partition and they must talk over a phone. He is

denied access to a television and hasn’t seen one

since January 31, 1996. He is only permitted to use a

telephone in an emergency situation and that must

first be approved by administration. He can then

only call a person on his approved visitors list which

consists of ten (10) people (as opposed to 20 for G.P

prisoners), the call must be collect, to a land line,

monitored by the person supervising the call and last

no longer than five (5) minutes. G.P. prisoners on the

other hand are allowed to make unlimited calls daily

with no duration restriction. The collect call averages

$15.00 per five (5) minutes whereas prisoners in G.P.

pay about .23¢ a minute. This creates a significant

financial hardship on prisoners housed in Ad. Seg.

and impedes on their ability to retain close ties with

family. In the 23 years Mr. Hope has been confined

to Ad. Seg. he has only made one (1) phone call,

when his mother died in 2013. He is denied the

opportunity to socialize with other prisoners,

participate in religious activities, group recreation

and vocational programs. By contrast, prisoenrs in

G.P. work, socialize, live in dormitories, have

educational and vocational training, attend religious

services and have group recreation opportunities.

The condition of Mr. Hope’s confinement in Ad. Seg.

almost totally deprives him of human contact,

mental stimulus, physical activity, personal property

and human dignity. Continued and continuing

confinment under these conditions for over 23 years

is inhumane and imposes atypical and significant

hardship compared to ordinary prison life.

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17. Five (5) days a week Mr. Hope can come out

of his cell for recreation for up to two (2) hours in a

cage that is roughly four (4) times the size of his cell.

this providing there is no staff shortage or inclement

weather.

18. The “SHU” is loud and excessive amounts of

noise can be heard 24/7. Prisoners beat and bang on

doors, walls, holler through cell doors, argue and talk

to themselves day and night- The housing area is a

constant roar with frequent loud bangs and

outbursts of noise- Many times the officers cannot

hear other prisoners because of the loud roar of the

pods. Officers contribute to the noise by hollering

which cell door they want opened as the intercoms on

the pods do not work. Officers slam doors and beat a

tray slot bar against the bars to get prisoners and

the picket officers attention. These loud noises day

and night deprive Mr. Hope of any quality sleep and

only allows him to sleep fitfully several hours at a

time. This has added to his anxiety and depression

that he is suffering. Sleep is a basic human need

that he is being deprived of by Warden Harris and

Major Rehse.

19. The use of chemical agents (weapons) such

as tear gas, pepper spray and pepper balls is common

on the “SHU”. In the last two (2) years Mr. Hope has

been exposed at least ten (10) times through no fault

of his own. On August 6, 2017 Mr. Hope was exposed

to pepper spray through no fault of his own and at

the direction of Major Rehse. Again on July 28, 2017

he was exposed to pepper spray for a prolonged

period. Major Rehse instructed officers not to turn

the exhaust fans on to clear out the gas because

prisoners were making to much noise. On May 31,

2017 he was again exposed to pepper spray when

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another prisoner was sprayed and there was a delay

in removing the gas from the air. Major Rehse

instructs officers to delay clearing the air of gas so

that other prisoners are exposed to it and will “think

twice before making them gas them”. He

intentionally allows the gas to linger in the air well

after the incident that involved the use of the gas is

over. This subjects Mr. Hope and others to

unnecessary exposure of chemical agents (weapons)

deliberately at the direction of Major Rehse. He has

been subjected to exposure of pepper spray and Tear

gas for over two (2) decades due to being housed in

Ad. Seg. and must suffer from the short-term and

long-term effects of these gases- Officials are

aggressive and careless with their use of these

chemical agents (weapons) and use them in excessive

amounts in unwarranted situations with no regard

to the other Prisoners they expose to these gases.

20. A minimum of four (4) times a year the

“SHU” is locked down to be searched, this is in

addition to cells being randomly searched and

inspected every other day. All Prisoners are searched

as is their property and all of the cells. These

lockdowns range from 14-30 days each. By contrast,

prisoners in G.P. are locked down twice a year.

21. While on lockdown Mr. Hope is given a

“Johnny” (2 sandwiches in a sack with one being

peanut butter) for each meal. All meals are in the

form of a “Johnny” while on lockdown. The calories

in the “Johnny” are significantly less than the food

served on the tray. The reduced calorie diet Mr. Hope

is subjected to causes weight loss and constipation.

Warden Harris is responsible for ensuring prisoners

are provided adequate food that is sufficient in

calorie and nutritional value. He refuses to provide

67a

prisoners these

lockdowns.

basic

human

needs

during

22. Prisoners serving in “Support Service”

capacities sweep and mop the walkways and clean

the showers. However, during lockdown the

walkways are not mopped and the showers are not

cleaned. Although showers are ran three (3) times a

week during lockdown the showers are not cleaned

during this period. The showers have mold and

mildew on the walls, ceiling and door. Mr. Hope

stopped going to the shower and only showers in his

cell to reduce the chances of catching a “Staph

infection” or skin rash. Major Rehse is exposing

prisoners to unsanitary living conditions that

jeopardize prisoners health.

23. Mr. Hope’s access to legal material is

drastically reduced du2 to being housed in solitary

confinement. Three (3) times a week he is allowed to

order three (3) cases from the unit law library. If he

wants a certain key in Civil or Criminal law he must

order one at a time and is not allowed access to the

book. Many times he is forced to order the table of

contents and order each key in an effort to find what

he is looking for. This research process takes

significantly longer than if he were afforded the

opportunity to go to the law library or check out the

entire legal book. He is also denied access to other

prisoners who are knowledgeable in the law. If a

holiday falls during a weekday then he is only

afforded access to the materials two (2) times a week.

Warden Harris is restricting prisoners access to legal

material in solitary confinement in an effort to

hinder their access to courts.

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24. On February 22, 2012 Major Virgil

McMullen ordered Mr. Hope’s cell searched. Mr.

Hope had been having outside advocates contact

classification about his continued confinement in

solitary. As a result of this search no contraband was

found, but his typewriter was taken (Mr. Hope used

the typewriter to file grievances and write letters to

officials) and not returned. Fifteen minutes after

placing Mr. Hope back into his cell, the search team

returned to search the cell again. Mr. Hope

discovered a 10” screwdriver near the toilet in a red

mesh bag com only used to transport prisoners

property. When he requested they get a video camera

he was sprayed with pepper spray and ordered to

submit to handcuffs, which he did. For eight days

Mr. Hope was left nude in a cell with the pepper

spray still on his body and nothing to clean it off

with. He was not given food for forty-eight (48) hours

per Major McMullen. Prior to this incident Mr. Hope

and Major McMullen had run ins about why he is

still in solitary confinement and whether a razor was

a weapon. Mr. Hope challenged Major McMullen’s

interpretation of what a weapon is through the

grievance process to the warden and regional

director. Major McMullen took exception to that and

it is Mr. Hope’s belief that the 10” screwdriver was

planted in his cell and was not accidentally left in his

cell. Mr. Hope was charged with possession of a

weapon for picking up the screwdriver that was left

in his cell. A subsequent investigation revealed the

screwdriver belonged to the search team as

evidenced by the serial number on it.

Prior to this incident Mr. Hope was not being

moved from cell to cell. After the incident Mr. Hope

has been moved to over 263 different cells as of date.

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Unit administration has since changed, but Mr. Hope

continues to get moved to a different cell weekly. In

the last two (2) years Major Rehse has ordered Mr.

Hope’s moves. Major Rehse asserts that since Mr.

Hope was being moved prior to him taking charge he

will continue to get moved even though it serves no

penological interest and was designed to harass and

retaliate against him.

25. When Mr. Hope is moved into a cell it is not

disinfected or otherwise cleaned nor is Mr. Hope

provided with supplies to clean the cells with. Many

times these cells have feces and urine on the walls,

floor and door. Mr. Hope has complained and filed

grievances to no avail. A number of times he was

moved into a cell that had no lights. On June 15,

2016 officers had to literally use their flashlights to

see to move Mr. Hope’s property into the cell. On

December 21, 2017 he was moved into a cell that had

black mold on the back wall and floor, covering about

80% of the back wall. He was forced to move into the

cell and denied cleaning supplies. For thirteen (13)

days he remained in that cell and began coughing. It

took outside advocates contacting the warden to get

him moved from that cell. Both the warden and

Major Rehse are responsible for the frequent moves

and placing Mr. Hope into these unsanitary cells.

They are aware of the problem and on December 26,

2017 Major Rehse personally saw the black mold on

the back wall of cell number 12-EA-11. It was only

when the Asst. Warden (Jefferson) over G.P. sent

someone to inspect the cell and saw the widespread

growth of the black mold did she order him removed

from the cell and moved into another cell. Major

Rehse was deliberately indifferent to Mr. Hope’s

physical and mental health.

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26. Due to being housed in solitary confinement

and requiring an escort everywhere he goes Mr.

Hope has no privacy when consulting with medical or

Mental health personnel. When Mr. Hope is seen in

the examination room at least two officers stand

there with him and listen to everything that is said.

At no time is Mr. Hope afforded any privacy and one

on one consultation with a healthcare pro-rider or

mental health care provider. Many times his medical

appointments are delayed or outright canceled due to

lack of escort officers. It is not uncommon to be rescheduled 3-4 times before seeing a provider. He has

on occasion had to wait over sixty (60) days to see a

provider to get his medications renewed. Medical and

mental health personnel frequently make “cell-side”

visits due to a shortage of staff and lack of escort

teams. When doing so other prisoners can hear what

is being discussed, it’s one of the few times other

prisoners will quieten down about, there is no

privacy. Mr. Hope is denied a proper examination

and his confidentiality in treatment is no longer

confidential, all because he is housed in solitary

confinement where Major Rehse and Warden Harris

require prisoners to be escorted by two (2) officers

anytime they leave a cell. Absent the policies of

Warden Harris and Major Rehse Mr. Hope wouldn’t

be denied privacy in his medical and mental health

consultations and examinations or excessively

delayed in seeing a provider. Each of them are aware

of this problem and refuse to correct it.

27. Mr. Hope has developed chronic lower back

pain from living in cramped quarters for decades.

Mr. Hope never had this problem prior to placement

in solitary confinement. He no longer sleeps on his

mattress, instead he sleeps on his steel bunk so his

71a

back is flat. He has pain in both knees and has

periodic sweeling. Limited movement in such close

confinement for over 23 years has contributed to

these ailments. Major Rehse has personally asked

Mr. Hope why he doesn’t sleep on his mattress and

was made aware of his back and knees ailments.

28. Mr. Hope has reported to mental health that

he deals with bouts of anxiety, depression, visual and

auditory hallucinations, but is denied treatment for

these conditions. He has been told he cannot be

transferred from this environment because he has an

escape on his record from 1994. He also suffers from

insomnia and sleeps fitfully. The noise and constant

slamming of gates and doors every thirty (30)

minutes contributes to this sleep interruption and

deprivation. Sleep is a basic human need. Although

he has had thoughts of suicide he has never acted on

them. The decades of isolation has deteriorated both

his physical and mental faculties.

29. In the 23 years Mr. Hope has been in solitary

confinement he has watched many prisoners

physically harm themselves and some commit

suicide. This has taken a mental toll on him and

effects him daily. He’s not sure how much longer he

can endure this treatment absent judicial

intervention.

30. Warden Harris and Major Rehse are

responsible for ensuring that prisoners in the “SHU”

are house in sanitary living conditions and not

subjected to harassment-, retaliation or cruel and

unsual treatment. Both Warden Harris and Major

Rehse order the moving of Mr. Hope weekly as a

form of harassment and has done so for years

without a valid penological reason. Both of them

72a

have sat on SCC meetings and contributed to the

denial of any meaningful review by not discussing

matters related to the hearing, but instead talking

about the availability of firewood and whether or not

it can be delivered. They are aware of the conditions

Mr. Hope is confined in and deny him adequate

reviews th1t if relevant information was considered

would warrant his release from such restricted

confinement.

31. On 30-day intervals, an entity called the

Administrative Segregation Committee (ASC) holds

a hearing on Mr. Hope. Mr. Hope is never allowed to

attend these hearings. These hearings must be

conducted by the rank of a Captain or above, many

times the Major or Warden conduct them. This

committee has no authority to release Mr. Hope from

solitary confinement. The ASC reviews are a sham

and meaningless because the SCC has already

decided Mr. Hope will remain in solitary for the next

180 days. The six (6) reviews done in between the

180 day SCC reviews are meaningless and

perfunctory.

32. The SCC schedules Mr. Hope a review every

180 days. This committee is supposed to determine

whether prisoners remain in solitary confinement or

if they are released to general population. Mr. Hope

has attended over forty-eight (48) SCC hearings and

remains in solitary. These reviews are perfunctory

and a sham as they don’t consider Mr. Hope’s current

attitude or behavior, they instead rely on an incident

that will never change from over 23 years ago.

33. On June 24, 2016 Mr. Hope appeared before

SCC member Melissa Benet, a SCC member he had

never gone before. He made both oral and written

73a

statement available to her as she looked over his file.

She saw no reason not to release him and informed

him she would release him to a transitional program

and then explained what the program was. She took

his paperwork with her after the eharing. About 3

weeks later Mr. Hope received his hearing record in

the mail. It indicated that he was to remain where he

was at with no explanation for her changing her

mind.

On December 3, 2016 SCC member Benet

conducted Mr. Hope’s SCC hearing. Mr. Hope asked

her why he wasn’t released to the transitional

program like she said she would do in June of 2016.

Ms. Benet stated, “you are high profile, I don’t have

the authority to release you.” When pressed for more

information she informed him, “I was told that’s not

my call.” The purpose for the SCC review is to

determine whether to release the prisoner from

solitary confinement or remain him. While Ms. Benet

conducted the hearing it was meaningless as she

never had the authority to release Mr. Hope. The

hearing was perfunctory and a sham as it was not

used for the intended purpose; to provide Due

Process for those housed in solitary confinement. Ms.

Benet is aware of the effects that long term isolation

has on prisoners subjected to it, both their mental

and physical capacities. She is aware that that

Hope’s treatment is not typical, nor is the amount of

time he has been housed in isolation. She is further

aware that the hardships Mr. Hope endures while in

solitary confinement are significant when compared

to those prisoners housed in G.P. and compared to

the ordinary incident of prison life.

34. On June 8, 2017 SCC Chairperson Kelly

Enloe conducted Mr. Hope’s SCC hearing. Mr. Hope

74a

presented a written request and made a verbal

request to be released to G.P. Ms. Enloe informed

Mr. Hope, “that’s not my decision”. When he asked

her why she is reviewing him if she cannot make a

decision she stated, “because you are on my list”. It

should be of note, for the past six (6) years Mr. Hope

has had outside advocates contact various SCC and

TDCJ officials asking what he must do to be released

to G.P. They spoke and corresponded with Ms. Enloe

at least four (4) times and she had no answers only

quoted policy. At the conclusion of his hearing Ms.

Enloe informed Mr. Hope, ‘‘having people contact the

SCC isn’t going to do you any good, I’ll let Ms. white

know your request”.

While all defendants can make a recommendation

to release Mr. Hope from solitary confinement, Ms.

Enloe had the authority to release Mr. Hope in 2016.

Ms. Enloe has continued Mr. Hope’s isolation despite

her knowledge that he has been in isolation since

1994, that such extraordinarily long solitary

confinement is inherently harmful and that any

penological basis for his isolation expired long ago.

Defendant Enloe never provided any notice for the

reasons for his continued solitary confinement. This

is the height of deliberate indifference.

35. On December 19, 2017 sec member Bonnie

Fiveash conducted the SCC hearing on Mr. Hope.

Mr. Hope submitted a written request and a verbal

request to be released to G.P. Ms. Fiveash never

looked at the paperwork Mr. Hope submitted and

stated, “you’re still in good shape I can’t release you”.

Mr. Hope then asked her if that was even her call to

which she stated, “that would be the Director’s call.”

Mr. Hope asked why he can’t be seen by someone

with the authority to make a decision on his release

75a

and was told, “you need to talk to somebody else

about that, I don’t have that answer we’ll see you in

six (6) months.” Ms. Fiveash never bothered to

review my file or consider any request Mr. Hope

made because she had no intention of releasing him

nor did she have the authority to release him. She is

aware of the inherently harmful effects that long

term isolation causes andboth the mental and

physical ailment Mr. Hope suffers

36. In the 23 years Mr. Hope has been in solitary

confinement he has gone before a number of SCC

embers who saw no reason not to release him to G.P.

SCC member Sheila Leblanc, Steve Rogers, D.

Bilnoski, Lovelady, D. Buckner, April Comstock and

Maryann Comstock had no problem releasing Mr.

Hope after reviewing his file. In fact in April 2007

Mr. Steve Rogers ordered Mr. Hope’s release to G.P.

and to be placed on medium custody. That release

order was removed from his file by Vanessa Jones

the then Chairperson. Again in January 2010 Mr.

Rogers again ordered his release only to have it

overrruled again by Vanessa Jones. From that point

on SCC members have been told not to release

making any hearing he is offered a sham and

meaningless. Mr. Hope has not once been told what

he must do in order to be released to G.P. It is

atypical the way he is treated and the hardships

imposed on him are anything but ordinary as it

relates to prison life.

37. Each of the SCC members have failed to

follow classification policies and use fair procedures

or relevant standards when reviewing Mr. Hope. As

a result they have denied him of any process he is

due and continue to subject him to inhumane

treatment that is decades of solitary confinement.

76a

Officials have decided to ignore criteria set forth in

both their policies and the U.S. Supreme courts

rulings that pertain to prisoners rights while

confined in solitary. The hearings are void of any

substance that would consider his release.

38. Although classification policy provides that

prisoners are allowed to make a verbal and written

statement, it is never considered when Mr. Hope

attends a hearing. Mr. Hope never goes before a SCC

member that has the authority to order his release.

Many times he has been told he will remain in

solitary because he escaped in 1994. His current

behavior or attitude are never considered. He is

never told what is expected of him because they have

no intentions of releasing him from solitary

confinement. The hearing is a sham and designed to

make it look like they are affording Mr. Hope the

little process he is due in accordance with previous

court rulings. With SCC members like Bonnie

Fiveash, Vanessa Jones and Lovelandy making

statements about the physical shape Mr. Hope is in,

it’s clear they have no intentions of releasing Mr.

Hope unless he is disabled or dead. His isolation is

indefinite and the SCC hearings are a sham and

perfunctory by their own admissions. Defendants do

not afford Mr. Hope or other qualified persons or

medical professionals any meaningful opportunity to

weigh in on the continued appropriateness of his

solitary confinement. The initial reason for

placement in solitary continues to be the reason to

continue his solitary confinement. Quite honestly,

that can never change thus allowing defendants to

continue to deny Mr. Hope any meaningful reviews

of Due Process pertaining to beinghoused in solitary

confinement now for over 23 years.

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39. As recently as February 2017 Mr. Leonard

Eschessa, the Deputy Director of Operations stated

that he functions in a capacity to make a decision

whether to release Mr. Hope from solitary, but would

not review his file. Mr. Eschessa is responsible for

ensuring that classification policies are followed to

ensure prisoners are afforded their Due Process. He

was made aware of the physical and mental health

issues Mr. Hope has from being housed in solitary for

decades. He has total disregard for the physical and

mental health of Mr. Hope. He is aware of the

mental and physical toll that prolonged isolation has

on prisoners.

40. In January and February 2017 Joni White,

Assistant Director of classifications was contacted by

outside advocates after years of Mr. Hope sending

her letters asking questions about his continued

isolation and her not responding. She stated that she

would not allow Mr. Hope’s release or make

recommendations for his release. She stated that he

escaped in 1994 and she doesn’t want the

responsibility that goes along with making that

decision. It is Ms. White that has instructed all SCC

members to remain Mr. Hope in solitary. That

decision was made years in advance and continues to

this day. Ms. White was made aware that Mr. Hope

suffers from physical and mental health related

issues due to decades of isolation. More importantly,

Ms. White has been counseled on the effect that longterm isolation takes on the brain and continues to

have total disregard for Mr. Hope’s mental welfare.

41. Defendants are aware that Mr. Hope is being

deprived of his basic human needs and physical

health, enviromental stimulation, social interaction

and dignity on account of long-term isolation.

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Instead, they extend it. Mr. Hope has spent more

time in solitary confinement that he was alive prior

to coming to prison.

42. In December 2005 the Security Precautions

Desginator (SPD) committee reviewed and removed

the “Escape risk” designator from Mr. Hope’s file.

this committee reviews the same classification file

the SCC does to determine if the SPD should be

removed or if the prisoner is still an escape risk.

They determined he was not an escape risk and

removed the SPD (ES) to indicate such. In April 2007

SCC member Steve Rogers reviewed that same file

and determined he wasn’t and escape risk and

ordered his release only to have that hearing record

removed from the file. Again in January 2010 Mr.

Rogers ordered his release only to have it overruled

in violation of classification policies. It’s apparent

Ms. White and Ms. Enloe have been working in

conjunction to deny Mr. Hope any meaningful

reviews or the Due Process afforded him from the

United States Constitution.

43. Mr. Hope’s continued confinement in solitary

confinement has far reaching consequences and

places a stigma on him. Pursuant to Parole rules, an

offender housed in solitary confinement is ineligible

to see a parole commissioner. That means he is never

reviewed by a board member, only his file is

reviewed. The fact Mr. Hope hasn’t had a

disciplinary case in six (6) years, is at the highest

time-earning class, is at Level 1 security detention

status and has completed over 13 correspondence

courses relating to cognitive intervention in never

considered by the parole board. Mr. hope’s custody is

the primary focus because it determines how much

trust they give a person they are considering for

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parole. If a prisoner is housed in solitary

confinement it demonstrates to the parole board that

he cannot be trusted around staff or other prisoners

without being handcuffed and escorted. This

drastically reduces the chances of Mr. Hope ever

getting a favorable parole review. As parole board

members have stated, “If he cannot be trusted

around staff and other offenders, why would we

release him to society?” Mr. Hope has a liberty

interest in remaining free of solitary confinement, as

long as he remains there he is ineligible to be seen by

a parole commissioner or be given a favorable review

for parole.

44. The

appeal

process

for

the

SCC

decisions/hearings is for the prisoner to file a

grievance. The grievance is “investigated” by the unit

warden. The unit warden cannot overrule a SCC

decision and doesn’t get a vote in the SCC hearing. It

is meaningless for a prisoner to appeal their SCC

decision and amounts to no appeal at all. In fact on a

number of the grievances on the SCC hearing, their

response was to write the SCC member; the same

SCC member that he was grieving. Some of their

responses merely tell him when his next review will

be.

45. Mr. Hope is being retaliated against for

exercising his constitutional right to file grievances

and seek redress for actions he feels are unfair as

well as unconstitutional. The weekly cell moves are

without penological interest and clearly for

harassment and retaliatory purposes. They

interefere with Mr. Hope’s ability to sleep,

concentrate on reading and push him into a state of

depression. The unjustified confiscation of Mr.

Hope’s typewriter (property) without compersation is

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an outright theft. When the typewriter was what was

being used to file the grievances it becomes obvious

the motive for the confiscation.

46. Mr. Hope suffers from anxiety and insomnia

in part due to the weekly moves to unsanitary cells

and having to adjust weekly to new “neighbors” and

the different voices and noises he hears in that cell

and around him. Both Warden Harris and Major

Rehse have contributed to these physical and

psychological malidies due to the inhumane

treatment and conditions they subject him to and

denying him basic human needs.

47. Each of the Defendants are aware of the

harmful effects of long-term isolation and the toll it

takes on the human body and brain. Each of the

Defendants in one capacity or another work together

to ensure Mr. Hope continues to be subjected to these

inhumane conditions and have done so for a

prolonged period of time.

PLAINTIFF’S DECLARATION

Pursuant to 28 U.S.C. § 1746, I declare under

penalty of perjury that the foregoing is true and

correct, signed this 13th day of June, 2018.

/s/ Dennis Wayne Hope

Dennis Wayne Hope TDCJ # 579097

Polunsky Unit

3872 FM 350 South

Livingston, Texas 77351

CERTIFICATE OF SERVICE

I Dennis Wayne Hope, Plaintiff Pro Se, hereby

certify that a true and correct copy of the AMENDED

COMPLAINT has been sent to AMY L. PRASAD,

Assistant Attorney General for the State of Texas at

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Office of Ken Paxton, Attorney General of Texas P.O.

Box 12548 Austin, Texas 78711-2548 via U.S. mail

first class postage prepaid this 13th day of June,

2018.

/s/ Dennis Wayne Hope

Dennis Wayne Hope TDCJ # 579097

Polunsky Unit

3872 FM 350 South

Livingston, Texas 77351