Rodgers Patrick v. Martin et al
Filing
469
Memorandum Opinion and Order (Ordered by Judge Matthew J. Kacsmaryk on 7/16/2020) (vls)
Case 2:16-cv-00216-Z-BR Document 469 Filed 07/16/20
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
GWENDOLYN DOLORES RODGERS
PATRICK, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
ALTON RODGERS, DECEASED,
Plaintiff,
v.
BARRY MARTIN, et al.,
Defendants.
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2:16-CV-216-D-BR
MEMORANDUM OPINION
AND ORDER
Plaintiff Gwendolyn Dolores Rodgers Patrick (“Patrick”) brings this lawsuit under 42
U.S.C. § 1983; Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131
et seq.; and Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794, against
Defendants Texas Department of Criminal Justice (“TDCJ”), Texas Tech University Health
Sciences Center (“TTUHSC”), the State of Texas, Barry Martin (“Warden Martin”), Dustin
Anderson (“Sgt. Anderson”), Jamie Burkholder (“Sgt. Burkholder”), Julio Lucero (“Sgt. Lucero”),
Michael Jackson (“Sgt. Jackson”), Trevin Mogilnicki (“Sgt. Mogilnicki”), Curtis Taylor (“Officer
Taylor”), Mario Randal (“Officer Randal”), and Certified Medication Aide Karen Raper (“CMA
Raper”) based on the in-custody death of her son Alton Rodgers (“Rodgers”) after he sustained
injuries from multiple assaults by his TDCJ cellmate, Joe Greggs (“Greggs”). 1
Numerous individual defendants have been voluntarily dismissed or otherwise terminated from this lawsuit.
Consequently, the only claims remaining are those against the parties identified in this introduction. Where terminated
or dismissed individuals are agents of entities that remain a party to this suit, the Court considers their actions in
determining if the entity maintains liability under the ADA or the RA.
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Patrick claims that Officer Taylor, Officer Randal, CMA Raper, Sgt. Anderson, Sgt.
Lucero, Sgt. Jackson, Sgt. Mogilnicki, Sgt. Burkholder, and Warden Martin — in his official
capacity only — were deliberately indifferent to Rodgers’s safety and health in violation of the
Eight Amendment; that both Warden Martin and TDCJ violated Rodgers’s right of access-to-thecourts through the destruction of critical evidence to her claims 2; and that TDCJ, TTUHSC, and
the State of Texas violated Rodgers’s rights under the ADA and the RA. Defendants have filed
eight motions seeking summary judgment on all claims against them. 3
For the reasons that follow, the Court grants summary judgment to all defendants on all
claims — except for Patrick’s claims of “deliberate indifference to safety” pending against Officer
Taylor, Officer Randal, Sgt. Burkholder, and Sgt. Mogilnicki. As discussed below, Patrick has
provided sufficient summary judgment evidence that a genuine issue of material fact exists
regarding whether these four defendants had actual knowledge of the practice of “pencilwhipping” at the Clements Unit — particularly on the cell block where Rodgers was housed with
Greggs. Consequently, Patrick has raised a genuine issue of material fact that these defendants
were aware of a substantial risk of harm to Rodgers’s safety and consciously disregarded that risk
by failing to correct the “pencil-whipping” practice. Thus, as outlined in this Memorandum
Opinion, these defendants are not entitled to qualified immunity on these claims.
2
Patrick concedes that her access-to-the-courts claim against TDCJ pursuant to Section 1983 is not viable given
Eleventh Amendment immunity protections. See (ECF No. 381). As the Court will explain later in this Memorandum
Opinion, this claim therefore should be denied with prejudice. The Court notes that Patrick’s access-to-the-courts
claim against the State of Texas was previously dismissed with prejudice after Patrick conceded the claim was not
viable. (ECF No. 232). However, Patrick continues to pursue her access-to-the-courts claim against Warden Martin,
requesting declaratory relief. That claim is discussed in Section IV(A)(2).
Defendants also objected to Patrick’s summary judgment evidence — specifically, the form of the evidence. (ECF
No. 396 (Officer Randal) at 1–2, ECF No. 397 (TDCJ) at 3–4, ECF No. 398 (State of Texas) at 1–2, ECF No. 399
(Barry Martin) at 4–5, ECF No. 405 (TDCJ sergeants) at 1–2, ECF No. 403-2 (CMA Raper) at 4–5, and ECF No. 4071 (TTUHSC) at 5–6). Officer Taylor did not file a reply to Patrick’s MSJ Responses and, therefore, did not make these
same objections. Because Patrick did not comply with relevant Local Rules, the Court ordered Patrick to revise her
briefing and evidence citations therein to comply with these rules. (ECF No. 415). Patrick filed corrections as required.
Thus, the Court finds the defendants were not prejudiced and that the evidence should not be excluded.
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FACTS
This lawsuit arises out of the death of Rodgers while he was incarcerated at the Clements
Unit of TDCJ. According to Patrick’s fifth amended complaint, Rodgers was housed at the
Clements Unit from 2011 to the time of his death on January 18, 2016. The Court lays out the
relevant material facts as follows:
Rodgers was received by TDCJ for his current sentence on June 9, 2006, at the age of 21.
(TDCJ DEFS MSJ APPENDIX (hereinafter “TDCJ-APP”) 4 1459, 1462). About four months prior
to that date, Rodgers’s height and weight was recorded as 6’3” and 145 pounds. Id. at 1459.
Rodgers was serving a life sentence for capital murder. Id. Rodgers began his incarceration at the
Polunsky Unit and then spent time at the Michael Unit. (TDCJ-APP 1462). He was eventually
transferred to the Clements Unit of TDCJ located in Amarillo, Texas, in 2014. Id. Rodgers also
served a prior sentence with TDCJ and appears to have been incarcerated most of his adult life.
(PLAINTIFF’S APPENDIX (hereinafter “P-APP”) 47).
I. Rodgers’s Mental and Physical Health Through November 2015
On October 6, 2011, Rodgers was sent to “Skyview,” a TDCJ mental-health facility at the
Michael Unit. (P-APP 46, 50). At the time, Rodgers exhibited signs of disorganization and
confused wording. Id. at 46. He was diagnosed with psychotic disorder NOS, or “not otherwise
specified.” Id. It was noted during an evaluation on October 10, 2011, that Rodgers was “very thin
for his height,” and “undernourished,” although his weight was not taken. (P-APP 51–52).
Citations to the record throughout this Memorandum Opinion are to documents filed under seal. Specifically, this
Court cites the appendices attached to the motions for summary judgment, to the responses, and to the replies.
However, the evidence cited within this Memorandum Opinion, after redaction for sensitive information or
information protected from release under the law, is also publicly available and contained, as redacted, in the record
at (ECF Nos. 444–46). Therefore, this Memorandum Opinion is not filed under seal.
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He remained at Skyview for acute patient treatment until January 26, 2012. (P-APP 46, 50). Upon
his release, his official diagnosis changed to schizophreniform disorder. Id.
Rodgers was diagnosed with varying forms of psychosis and mental health illness at
Skyview in 2011 and 2012. See (P-APP 45–54, 59–92). During his time at Skyview, Rodgers
presented with and self-reported symptoms consistent with those diagnoses such as auditory
hallucinations, see (P-APP 47, 51, 61, 86), rambling speech, see (P-APP 47, 62, 68, 75, 86, 90),
and paranoia, see (P-APP 52–53, 86, 92).
Upon his return to the Michael Unit on January 26, 2012, Rodgers was placed in outpatient
services and the Treatment and Prevention Relapse Program. (P-APP 46). He was reviewed every
90 days for medication compliance and was admitted again to Skyview on March 30. Id. During
his second admission, his diagnosis was changed to bipolar 1 disorder with psychotic features. Id.
Additionally, Rodgers was reported as being “manic, not taking medicine, hygiene issues.” Id. He
was also described as “not eating” and unable to function at this unit of medical assignment.
(P-APP 68). During an examination on April 2, Rodgers was classified with an “inability to care
for [his] own basic needs.” (P-APP 82).
On April 5, a hearing was held at Skyview to determine if Rodgers could be provided
antipsychotic medication without his consent. (P-APP 90). This hearing arose due to medication
compliance issues and deterioration. Id. It was determined that medication could be compelled as
needed because Rodgers’s failure to comply with his medications was “likely to cause serious
harm to [him] and/or others.” Id. It was also determined that this failure was “likely to result in
continued suffering from severe and abnormal mental, emotional, and physical distress or
deterioration of [his] ability to function independently.” Id. After several different periods of
treatment in mid-2012, Rodgers was discharged from Skyview.
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Rodgers was once again sent to Skyview from the Michael Unit on June 12, 2014. (P-APP
93). This occurred after he reported hearing voices for approximately three years, consistent with
his initial inpatient treatment. This appears to be his last treatment at Skyview. At this time, his
diagnosis was antisocial personality disorder and schizophrenia, with an indication of numerous
other mental health issues and diagnoses in the past. Id.
However, Rodgers intermittently continued to present with and self-report the same or
similar symptoms until late-2015. See, e.g., (P-APP 93) (providing evidence that Rodgers
experienced auditory hallucinations — in this case, hearing voices — in 2014 and evidence that
he began hearing those hallucinations three years earlier); (P-APP 128, 130, 144, 157) (providing
evidence that Rodgers experienced the same kind of auditory hallucinations in 2015); (P-APP 108–
112, 117) (providing evidence that Rodgers experienced visual hallucinations — in this case,
alleged blindness — in 2015); (P-APP 109, 216) (providing evidence that Rodgers experienced
paranoia — in this case, complaints of food being poisoned and bleach being thrown in the eyes
— in 2015). Dr. Homer Venters, Patrick’s medical expert, concluded that the Skyview diagnoses
were “generally reflect[ive of] lifelong mental health diagnoses” and that “the following three and
a half years [were] remarkably consistent with the established trajectory of lifelong serious mental
illnesses.” (P-APP 21) (quoting Dr. Venters referring to the three and a half years during which
Rodgers continued to be housed at the Michael Unit and was intermittently being treated at
Skyview during that time). Dr. Venters’s opinions and other evidence shows that at various points
in time Rodgers’s mental health illnesses were treated as “chronic” conditions. See, e.g., (P-APP
93) (indicating in 2014 that Rodgers was on an “Individualized Treatment Plan for Psychiatry
Chronic Care”); (P-APP 61) (indicating in 2012 that Rodgers had been previously assigned to a
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“Chronic Treatment Track”); see also (P-APP 172) (suggesting that Rodgers’s mental health
illnesses were “chronic”).
After his transfer to the Clements Unit on October 28, 2014, Rodgers continued to display
signs of mental health issues. (TDCJ-APP 1462, P-APP 108). Based on complaints of vision
problems and displays of paranoia, the medical staff at the Clements Unit evaluated Rodgers on
July 23, 2015. (P-APP 111). Rodgers complained that someone had “thrown bleach” in his eye
and that he was losing his ability to see. Id. Four days later on July 27, Rodgers was referred to a
specialist regarding his vision, although it appeared that his vision concerns might have been
related to his mental health issues. (P-APP 118). In September 2015, an ophthalmologist evaluated
Rodgers and discerned no evidence of blindness, but instead determined that Rodgers was
“malingering.” See (P-APP 24, 126, 194, 197).
On August 5, 2015, TTUHSC psychiatrist Ikechukwu Ofomata conducted a follow-up
psychiatric evaluation of Rodgers or “telepsychiatry encounter” via video teleconference. (P-APP
127). The record indicates that prior to their first meeting, Dr. Ofomata “review[ed Rodgers’s]
disciplinary records and use of force records for the previous two years, along with his medical
and mental health records.” (P-APP 128). At the time of this encounter, Rodgers was currently
prescribed Haldol and Benadryl for side effects for bipolar disorder and was still reporting “hearing
voices.” Id. Rodgers was once again diagnosed with antisocial personality disorder at this
evaluation. Id. at 127–128.
On September 10, 2015, Rodgers was tested for levels of Haldol in his system, and the
results indicated that he was not taking his medications. (P-APP 128). Rodgers had a long history
of medication compliance issues. See, e.g., (P-APP 46, 59, 61, 66, 90, 93). On October 13, Dr.
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Ofomata discontinued Rodgers’s Haldol prescription due to non-compliance in taking the drug as
prescribed. See (P-APP 128, 139–141).
Also before the Court is Rodgers’s TDCJ Health Summary for Classification Form on
October 13, the same day that his Haldol prescription was discontinued. This document indicates
that he had a “PULHES” classification of “S3NR” and certain medical restrictions. (P-APP 200).
According to Patrick’s correctional practices expert Frank AuBuchon, the former Administrator
for Classification Operations at the TDCJ Classification and Records Headquarters:
This PULHES classification is an indication that offender Rodgers has a significant
mental health issue. Further, the form shows that Rodgers has a restriction that he
must be housed on a facility that has extended medical department hours and a
restriction that a member of the Mental Health Department must be consulted
before taking disciplinary action against the offender.
(P-APP 205). The Court notes that Rodgers’s October 13 TDCJ Health Summary for
Classification Form expressly provides “no restriction” for Rodgers’s basic housing assignment:
the “single cell only” and “special housing” options on the form are blank. (P-APP 200).
The record indicates that Rodgers filed two I-60 requests on October 20 and 23, 2015, to
be placed back on his antipsychotic medication, but these requests were never granted. See (P-APP
142, 144). He was, however, interviewed cell-side on October 23 by TTUHSC Mental Health
Clinician Gerald Granat after making these requests. See (P-APP 157, 160-63). During the
interview, Rodgers denied experiencing any hallucinations. See (P-APP 157, 162). Granat
concluded that Rodgers exhibited no symptoms of psychosis, mania, depression, or any other
mental health problem. (P-APP 161). Dr. Ofomata’s own treatment records pertaining to Rodgers
indicate that:
Rodgers was previously diagnosed with varying forms of psychosis and mental
health illnesses, see (P-APP 131, 133–34);
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Rodgers met with and reported hearing voices to Dr. Ofomata on August 8, see
(P-APP 130);
Dr. Ofomata’s goals for Rodgers on August 8 and November 20 — before and
after taking Rodgers off of his antipsychotic medication — were for him to
avoid suicidal, homicidal, assaultive, and self-injurious behavior and to comply
with medications to normalize mood and ameliorate psychotic behavior, see (PAPP 132, 152); and
Dr. Ofomata prepared Rodgers’s October 13 TDCJ Health Summary for
Classification Form, which indicates that Rodgers had a “PULHES”
classification of “S3NR” and certain medical restrictions, see (P-APP 200).
Dr. Ofomata was scheduled to see Rodgers on November 10, 2015, but Rodgers was
disciplined for TDCJ rule violations before this visit occurred. Id. Consequently, the visit was
rescheduled to November 20. Id. On November 20, Dr. Ofomata observed Rodgers exhibiting
signs of depression — but not psychosis or mania. Id. Dr. Ofomata diagnosed Rodgers with
Intermittent Explosive Disorder and indicated that he wanted to keep Rodgers on his caseload to
be seen periodically. Id. The record shows that no further sick calls were requested by Rodgers
and no further examinations were made after November 20.
Patrick’s correctional medicine expert Dr. Homer Venters opined that Rodgers should have
been placed in a single cell while housed at the Clements Unit because “persons with psychotic
disorders particularly, even when they are faring well, can experience high levels of paranoia,
agitation that may not be noticeable to clinical staff or that may not be reported to clinical staff.”
(P-APP 180). Relatedly, Mr. AuBuchon opined that “TDCJ and its employees should have, if
nothing else, provided enhanced monitoring of Rodgers given his mental health status.” (P-APP
205). However, TTUHSC’s own medical expert Dr. Benjamin Leeah concluded based on his
review of the summary judgment evidence that Rodgers “did not suffer from any chronic medical
conditions.” (TTUHSC-APP 13).
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II. Rodgers and Greggs Become Cellmates
Greggs was housed on the ECB unit in cell C-210 on November 10. (TDCJ-APP 1462).
Rodgers was housed on the ECB unit in cell C-210 five days later on November 15. Id. Prior to
his assignment to cell C-210, Greggs had received 15 major disciplinary convictions during his
time at TDCJ. The period during which he received these convictions lasted from his entry into
TDCJ on September 13, 2013, until March 31, 2015, the date of his last major disciplinary
conviction prior to his housing assignment to cell C-210. His disciplinary convictions included
refusing to accept a housing assignment, threatening a staff member, sexual misconduct,
attempting to establish an inappropriate relationship with a staff member, fighting with another
inmate without injuries, and threatening to escape. Id. The most recent of these was his disciplinary
conviction on March 31, 2015, for threatening a staff member. Id.
Prior to Rodgers’ assignment to cell C-210, he received 22 major disciplinary convictions
during his time at TDCJ. The period during which he received these convictions lasted from his
entry into TDCJ on June 9, 2006, until November 6, 2015, the date of his last major disciplinary
prior to his housing assignment to cell C-210. His disciplinary convictions included fighting with
another inmate with injuries, verbal and physical staff assaults, possession of a weapon, and sexual
misconduct. Id. The most recent of these was his disciplinary conviction on November 6, 2015,
for fighting with another inmate. Id. His prior cellmate, Raymond Reyes (“Reyes”), stated that
Rodgers always ate Reyes’s meals, which consisted of beans, vegetables, and peanut butter, and
always used Reyes’s $25 of commissary for chips, soup, and large quantities of cookies and candy.
(TDCJ-APP 43). Reyes admitted to fighting with Rodgers over who would clean up the cell and
at which times. Id. Reyes also stated Rodgers was non-compliant in taking his medications. Id.
Following Rodgers’s death, Greggs was moved to Administrative Segregation. Id. at 1464.
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III. Timeline of Assaults by Greggs and Indictment
Greggs admitted to assaulting Rodgers on several occasions between January 5 and January
17, 2016, the day before Rodgers was discovered unresponsive and subsequently declared dead.
(P-APP 338–346). Specifically, Greggs was charged by indictment with five separate assaults on
Rodgers, which allegedly occurred on January 5, 8, 9, 14, and 17 of 2016. (P-APP 338). 5
A. Defendant Interactions with Rodgers in January 2016, after Assaults
From November 30, 2015, until January 5, 2016, the door to cell C-210 remained closed.
(P-APP 604–829). On January 5, TDCJ Correctional Officer Manuel Ramirez and TDCJ
employees Charlie Gonzales and Autumn Venable opened the door to Rodgers’s cell C-210 to
escort him to have beard photographs taken, as he had permission to grow a beard. (TDCJ-APP
38). Mr. Gonzales described Rodgers as being “in good spirits” and “laughing” with other inmates
on that day. Id. The logs reflect that the cell door of C-210 was opened at 12:14 p.m. to escort
Rodgers to have beard photographs taken in the hallway. (P-APP 319). These logs indicate that
C-210 was opened and closed again at 12:20 p.m. that same day to return Rodgers to the cell. Id.
In his initial interviews with OIG, Greggs repeatedly stated the first assault occurred on
January 8, and that two additional assaults occurred on January 14 and January 17. (TDCJ-APP 6,
16, 221, 719). However, Greggs was indicted and charged with five separate assaults, with the first
occurring on January 5, although the precise time of day when any of the fights occurred is unclear
from the statements given. (P-APP 338). Although January 5 was the first day that Greggs
Though it is not evidence, a recent pleading shows that Greggs pleaded guilty to five counts of aggravated assault
corresponding to these dates. Federal Rule of Evidence 201 states that a court may take judicial notice of an
“adjudicative fact” if the fact is “not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned.” The Court has confirmed that Greggs pleaded guilty and, furthermore, the parties do
not dispute the factual dates in the corresponding charging instruments of the criminal case with the dates the assaults
occurred. However, there is no summary judgment evidence concerning which injuries occurred during which specific
altercations. (The sole exception to this is the bruise observed on Rodgers’s cheek on January 10, 2016, which
necessarily occurred in a fight prior to that date.)
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assaulted Rodgers, no one noticed any injuries to Rodgers when he was escorted for beard photos.
This is possibly because the initial physical altercation between the cellmates had not occurred by
this point in the day.
Correctional officers routinely failed to perform cell searches required by TDCJ policy for
contraband in the ECB block at Clements Unit and routinely falsified cell search records to indicate
such searches were performed. (P-APP 1013–1023). This misconduct occurred during the months
that Greggs and Rodgers were housed together in cell C-210. Id. Correctional Officers Kayla
Chapman (P-APP 980–981), Raul Bernal (P-APP 832), Curtis Taylor (P-APP 992–993), and Jason
Dorsey (TDCJ-APP 1742–1748) testified that correctional officers at the Clements Unit engaged
in “pencil-whipping.” “Pencil-whipping” is the practice of falsely indicating that required duties
— especially mandatory random cell searches — were performed when completing paperwork
and forms. However, none of these individuals testified that sergeants or supervisors trained them
to pencil-whip or that any sergeants or supervisors were directly aware of this behavior.
Additionally, there is evidence that correctional officers or other individuals forged the sergeants’
initials or signatures on these forms on some occasions. (P-APP 316).
The Court has reviewed the Security Search Logs provided by Patrick for the months of
November and December 2015 and January 2016. (P-APP 420–603). The Court has also reviewed
the cell door logs for the ECB pod for these same months, which show when and how long cell
doors were open on a given day. (P-APP 604–829). The Court has further reviewed the comparison
table of these logs and records generated by Patrick’s counsel that show how often cell searches
were performed and when correctional officers falsified Security Search Logs. (P-APP 1013–1023,
1025–1029). These records clearly indicate that correctional officers seldom performed required
cell searches. They also clearly indicate that sergeants and supervisors initialed or signed the
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Security Search Logs without actively confirming the searches for contraband were performed.
Specifically, Sgt. Anderson was disciplined for signing cell search logs when searches were not
completed. (P-APP 362). Sgt. Burkholder was disciplined for the same reason. (P-APP 364).
Similarly, Sgt. Jackson was disciplined for a violation of PO-07.004 for failing to complete
unannounced inspections of cell searches. 6 (P-APP 370). Finally, Sgt. Lucero was disciplined for
signing cell search logs when searches were completed incorrectly. (P-APP 375).
Security cell searches of cell C-210 were scheduled nine times during November 2015 to
January 2016. (P-APP 420–603). The searches were scheduled for November 9, 19, 21, and 25;
December 8, 18, and 31; and January 6 and 14. Id. The January 6 and 14 searches in 2016 were
scheduled on and near three significant dates — the day after the first altercation between Rodgers
and Greggs (January 5), the day of the next-to-last altercation (January 14), and four days prior to
Rodgers being found unresponsive (January 18).
On January 6, Correctional Officer Jason Dorsey stated that he performed a search of cell
C-210, which Sgt. Lucero initialed as confirmed the same day. (P-APP 553). Sgt. Lucero disputed
the legitimacy of these initials, which do appear to be different from initials he stated were
legitimate. (P-APP 216). Nevertheless, he acknowledged that he wrongly initialed other cell
searches without first confirming the search actually occurred. (P-APP 217). Additionally, on
January 14, Correctional Officer Franco stated that he performed a search of cell C-210, which
Sgt. Jackson initialed as confirmed the same day. (P-APP 569). Sgt. Jackson stated that his initials
and signature were forged and that he did not complete any documentation on Security Search
Logs during December 2015 or January 2016. (P-APP 893). The evidence also indicates that
Jackson did not authorize incomplete cell searches, but rather failed to perform the requisite random check to ensure
cell searches were being conducted.
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correctional officers were not following proper procedures in conducting daily bed checks,
medication distribution, and other types of searches. (P-APP 362–383).
On January 10, CMA Raper expressed a concern to an unidentified officer accompanying
her during medical distribution regarding the lack of lighting in Rodgers’s cell. The officer
responded to her concern by stating that most inmates were workers that slept at different times
and wanted their cells to be dark. (RAPER-APP 44–46). Additionally, on January 10, Officer
Taylor noticed a bruise on Rodgers’s cheek and failed to report the injury to his sergeant as
required. (P-APP 996–1002). Sgt. Mogilnicki was the supervising sergeant on the ECB pod on
January 10. See (P-APP 846). Sgt. Mogilnicki had knowledge that the prisoners on ECB were
“close custody” prisoners that had a history of disciplinary problems and were more prone to
fighting than some other cell blocks. (P-APP 869). Despite knowing this, Sgt. Mogilnicki failed to
act when Officer Taylor reported signs of a future altercation with inmates in a different cell,
intervening only when an actual fight occurred. (P-APP 996–1002). Based on this past interaction
with Sgt. Mogilnicki, Officer Taylor did not report the injuries or possible altercation or initiate an
inmate protection investigation when he observed Rodgers’s injury. Id.
On January 11, CMA Raper again expressed her concern regarding the lack of lighting in
Rodgers’s cell, this time to a second unidentified officer accompanying her during medication
distribution. The officer responded that most inmates were workers that slept at different times and
wanted their cells to be dark. He further stated that the unit pod lights could not be turned on,
though the inmates’ personal cell lights could be. He also shined a flashlight into Rodgers’s cell.
(RAPER-APP 46–49, 66). 7
Information received from CMA Raper reflects that inmates generally preferred the main lights off and had the
ability to turn on their individual cell lights. Additionally, correctional officers were equipped with flashlights to
illuminate the cells while conducting rounds and performing job functions. (TDCJ-APP 635).
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Officer Randal personally observed Rodgers as many as six times on January 17 — the day
before Rodgers died — and personally interacted with Rodgers at least once that day. (P-APP 935–
37, 974–75, 1024). On that same day, CMA Raper expressed concern to Officer Randal that
Rodgers was always on his bunk, always on his side, and always facing the wall of his cell and
also that his cell was always dark. (RAPER-APP 59–60, 78–82). Officer Randal could not recall
whether he observed Rodgers under the covers of his bed or what Rodgers was wearing that day.
(P-APP 936).
On January 17, both Rodgers and his cellmate told Officer Randal that Rodgers could not
climb down from the top bunk of his bed due to his medication. (TDCJ-APP 2170–71). On that
day, (1) Officer Randal directed Rodgers to roll over, (2) Rodgers did so, and (3) Officer Randal
observed no signs of pain, bruising, injury, or emaciation. (TDCJ-APP 2172, 2186, 2210–12).
Officer Randal responded to CMA Raper’s concerns regarding Rodgers’s lack of movement and
the lack of lighting in Rodgers’s cell by stating that: (1) he assumed the cell was dark because
Rodgers had been working; (2) he heard two different identification numbers and two different
names when she asked for inmate identification on that occasion; (3) just a few days before,
Rodgers participated in a photography session and rose from his bed to take an identification
photograph; and (4) TDCJ officers perform bed counts where the inmates have to get out of bed
and come to the cell door. (RAPER-APP 59, 61). Based on these facts, CMA Raper assumed that
Rodgers was sleeping on prior occasions when she observed him in the same position and did not
interact with him. (RAPER-APP 59). Officer Randal explained these interactions with Rodgers to
CMA Raper when she expressed her concerns to him on January 17 during medication distribution.
Although she did not have similar interactions with Rodgers during her medication distribution
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rounds on previous days, her concerns were alleviated by her understanding of Officer Randal’s
interactions with Rodgers during his rounds.
B. Rodgers is Discovered Unresponsive in his Cell on January 18, 2016
At approximately 7:20 a.m. on January 18, 2016, Sgt. Anderson approached cell C-210 as
part of his daily rounds and to assist with inmate recreation. (P-APP 1–2). While observing the
inmates inside the cell, he noted Rodgers was unresponsive. Id. The door to cell C-210 was opened
at 7:23 a.m. (P-APP 713). Officers arrived, placed Rodgers on a gurney, and wheeled him to the
medical building. (P-APP 6–8 (Video Recording and Transcript of Recording)). At 7:26 a.m.,
CO3 8 Officer Gabriel Padilla (“Officer Padilla”) was assigned to secure cell C-210 and ‘document
activity.” (TDCJ-APP 770). At 7:40 a.m., CO3 Officer Kayla Chapman (“Officer Chapman”)
relieved Padilla from duty for ten minutes. Id. Cell C-210’s door closed at 7:42 a.m. (P-APP 713).
At 7:50 a.m., Padilla returned to resume the duty of guarding the cell. (TDCJ-APP 770). The cell
remained closed and was observed by one or more of Officer Padilla, Officer Chapman, and Sgt.
Anderson from 7:42 a.m. until the arrival of agents of the Texas Office of the Inspector General
(“OIG”) at 9:14 a.m. (P-APP 713, TDCJ-APP 770, TDCJ-APP 34).
C. Notification of Warden Martin
At his deposition, Warden Martin testified that he first received a telephone call from Duty
Warden Nash on the morning of January 18. (TDCJ-APP 1816). Nash informed Warden Martin
that Rodgers was found non-responsive in cell C-210 and was in transit off unit. Id. Warden Martin
further testified that he was not present at the Clements Unit at the time he received the phone call
from Duty Warden Nash. Id. Warden Martin estimated that he arrived at the Clements Unit around
10:00 a.m. that morning. Id.
8
For the purposes of this Memorandum Opinion, the abbreviation “CO3” refers to a third-class correctional officer.
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Warden Martin testified that he was away from the Clements Unit the week prior and
planned to take a holiday on Monday, January 18 — Martin Luther King Jr. Day — and Tuesday,
January 19. (P-APP 386). Duty Warden Nash produced and emailed a timeline to Warden Martin
on January 19 at 11:59 a.m. In the timeline, Nash indicated that Warden Martin was notified of the
incident at 8:30 a.m. (TDCJ-APP 760, 764). Warden Martin testified that he received further
phone calls as the morning progressed and that the incident was “worse than we originally
thought.” (P-APP 385). This information persuaded him to cancel his holiday plans and drive to
the Clements Unit. Id.
Warden Martin testified he arrived at the Clements Unit shortly after OIG arrived. Id.
Warden Martin was scheduled to retire just two weeks after Rodgers’s death, but upon TDCJ’s
request, he agreed to remain on duty and assist with the investigation into wrongdoing by staff
members at his unit. (P-APP 387).
D. OIG Investigation Begins
OIG personnel did not arrive at the scene until after 9:00 a.m. on January 18. (TDCJ-APP
34). The OIG investigation into Rodgers’s condition and eventual death began promptly at 9:14
a.m. when Roger Kendall (“OIG Kendall”) arrived at the Clements Unit. (TDCJ-APP 34). OIG
Kendall recalled the following:
On January 18, 2016 I responded to the Clements Unit to assist with the
investigation in this case. I went to the Expansion Cell Block (ECB), on the
Clements Unit and took custody of cell C-210, from Correctional Sergeant Dustin
Anderson at approximately 9:14 AM.
I photographed the outside approach to the cell and also the interior of the cell. I
searched the inside of the cell and found no evidence of a struggle or conflict. No
evidence was collected from the cell at that time.
At 9:29 AM, I received a state issued offender pair of pants and shirt from
Correction Sergeant Brian Noak who had just removed those items from TDCJ
Offender Joe Greggs.
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At 10:01 AM, I received a state issued offender jumper from Correctional Officer
Donald Teague who had recovered that item from the Clements Unit Infirmary after
it was cut off of Offender Alton Rodgers during treatment. The clothing items and
a CD containing a download of the photos taken will be held as evidence and
forwarded to the OIG Region C Headquarters in Abilene, Texas, to be held as
evidence.
On January 18, 2016 at 11:31 AM, I returned to ECB Cell C-210 and swabbed a
stain from the ceiling over the top bunk of that cell. I swabbed the stain using sterile
swab saturated in 0.9% Sodium Chloride Irrigation solution obtained from
Clements Unit Medical Staff. The stain and swab had a light brown appearance. . ..
(TDCJ-APP 770).
Cell door logs indicate ECB cell C-210 was opened on the following dates and times
between January 18 and January 22, 2016:
1/18/16: opens at 7:23 a.m., closes at 7:42 a.m.;
1/18/16: opens at 9:17 a.m., closes at 9:29 a.m.;
1/18/16: opens at 11:33 a.m., closes at 11:38 a.m.;
1/18/16: opens at 12:56 p.m., closes at 3:24 p.m.;
1/19/16: opens at 7:26 a.m., closes at 7:45 a.m.;
1/19/16: opens at 9:54 a.m., closes at 12:24 p.m.;
1/20/16: opens at 9:06 a.m. and immediately closes;
1/20/16: opens at 4:39 p.m., closes at 5:11 p.m.;
1/20/16: opens at 5:40 p.m., closes at 5:41 p.m.; and
1/22/16: opens and closes several times during Serious Incident Review.
(P-APP 713).
Several cell-door openings are omitted from the OIG investigative report, but all of these
omissions occurred after: (1) photographs of the cell’s condition were taken; (2) OIG viewed the
cell; and (3) certain evidence was collected. No summary judgment evidence reflects that other
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individuals entered the cell between the time Rodgers and Greggs were extracted and OIG arrived
to take possession of it.
Officer Donald Teague provided OIG Kendall with the jumpsuit that Rodgers was wearing
when he was found unresponsive. (TDCJ-APP 18, 34). The video cameras in the ECB were not
always set to record, and they were not recording the C pod of the ECB on January 18.
(TDCJ-APP 2). On that date, OIG Kendall collected the video evidence of Rodgers’s removal from
his cell and transportation to the medical department. (P-APP 6–8 (Video Recording and
Transcript of Recording)).
E. Cleaning of the Cell by SSI Hefner
Inmate Jason Hefner was a support services inmate (“SSI”) at the Clements Unit during
the period surrounding Rodgers’s death. He performed trustee duties, including janitorial work
and reporting maintenance issues.
SSI Hefner learned of Rodgers’s death after his own release from state custody. Believing
he had information relevant to the case, SSI Hefner contacted Patrick’s attorneys and eventually
executed an affidavit recounting his work in cell C-210. In relevant part, the affidavit states that
SSI Hefner cleaned cell C-210 on January 18 and recalls that the facility was poorly maintained.
(P-APP 902–903). During his deposition, SSI Hefner further testified about his cleaning of the
ECB block where Rodgers was incarcerated and the deplorable conditions therein — including the
conditions in cell C-210. (P-APP 902–903). The Court discusses the specifics of Hefner’s claims
below in Section IV(B)(3) of this Memorandum Opinion.
Based on SSI Hefner’s statements, Patrick alleges destruction of evidence, resulting in a
denial of access-to-the-courts. The alleged lost evidence includes (1) video recordings, (2) bodily
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fluid swabs, (3) Rodgers’s mattress, and (4) the original condition of cell C-210. This alleged loss
of evidence is discussed below in Section IV(B)(3).
F. Serious Incident Review by Huntsville TDCJ
TDCJ expert witness Eric James Guerrero testified at deposition that it is common for local
OIG investigators to “release” a cell after initially gathering evidence without waiting for TDCJ
Huntsville to complete the Serious Incident Review. However, Guerrero clarified that OIG will
not “release[]” the cell until they are persuaded that the evidence is collected. (P-APP 227). He
further testified that local OIG investigators do not customarily send TDCJ an “official release”
before janitorial staff are permitted to clean a cell — and did not do so before cleaning cell C-210.
(P-APP 228). Here, summary judgment documents reflect that: (1) OIG investigators
photographed cell C-210 on January 18, the date Rodgers was found unresponsive; (2) Deputy
Warden Nash emailed Warden Martin before the cell was “released” to Clements Unit personnel
for janitorial cleaning; and (3) TDCJ Huntsville completed the Serious Incident Review on January
22, 2016. (TDCJ-APP 760, 764, TDCJ-APP 770, TDCJ-APP 1458).
G. Rodgers’s Physical Condition and Autopsy Findings
Rodgers lost approximately 23 pounds — 14% of his total bodyweight — between October
13, 2015, when his weight was recorded at his psychiatric consultation, and January 18, 2016, the
day he was discovered unresponsive in his cell. This weight loss led to his death. (P-APP 14–15,
18). No TDCJ employee that interacted with or observed Rodgers reported or documented any
weight loss from November 2015 through January 18, 2016. Additionally, in the days (and
potentially weeks) prior to January 18, he developed pneumonia, a very large bedsore, and
pulmonary embolisms, or blood clots in the lungs. (P-APP 30–42). He also had visible injuries to
his body, partially due to Greggs’ assault. Id.
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Greggs’s assaults on Rodgers resulted in bruising, wounds, head fractures, blunt force
trauma brain bleeding, and other injuries. (P-APP 15, 16, 18, 30). Rodgers’s medical condition
appeared very severe to those who treated him on January 18 after his removal from the cell.
(P-APP 6, 8–11 (Video transcript)). Rodgers was found with a large, festering bed sore and
appeared exceedingly thin. (P-APP 18). The medical records and autopsy indicate he was
“cachectic,” or malnourished, either by nature of an untreated medical condition or through
insufficient nutrient intake. (P-APP 15, 30). Rodgers’s ultimate cause of death was a brain bleed
sustained during Greggs’s assault. Id.
H. Factual Allegations in Pleadings
Finally, the Court reviewed Patrick’s Fifth Amended Complaint and weighed all factual
allegations that are documented by consistent summary judgment evidence. (ECF No. 282).
LEGAL ANALYSIS
In a civil case, “[a] party may move for summary judgment, identifying each claim or
defense — or the part of each claim or defense — on which summary judgment is sought.” FED.
R. CIV. PROC. 56(b). When a summary judgment movant does not have the burden of proof on a
claim, it can obtain summary judgment by pointing the court to the absence of evidence on any
essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once it does so, the nonmovant must go beyond its pleadings and designate specific facts
demonstrating that there is a genuine issue of material fact for trial. See id. at 324–25; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). A genuine issue of
material fact exists if the evidence is such that a reasonable trier of fact could return a verdict for
the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element renders all other facts immaterial.
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See TruGreen Landcare, L.L.C. v. Scott, 512 F. Supp. 2d 613, 623 (N.D. Tex. 2007) (Fitzwater,
J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little, 37
F.3d at 1076.
“A qualified immunity defense alters the usual summary judgment burden of proof.”
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Michalik v. Hermann, 422 F.3d 252,
262 (5th Cir. 2005)). Specifically, when qualified immunity has been raised, “[t]he moving party
is not required to meet [his] summary judgment burden for a claim of immunity.” Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks omitted) (citing Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003)). Instead, “[i]t is sufficient that the movant in good faith
pleads that [he] is entitled to qualified immunity. Once [he] asserts this affirmative defense, the
burden shifts to the plaintiff to rebut it.” Id. (internal quotation marks and emphasis omitted); see
also McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam)
(stating that “[o]nce qualified immunity is asserted, the burden shifts to the plaintiff to demonstrate
the inapplicability of the defense”); Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537
F.3d 404, 419 (5th Cir. 2008) (noting that when a government official pleads qualified immunity,
the plaintiff must “rebut the defense by establishing that the official’s allegedly wrongful conduct
violated clearly established law and that genuine issues of material fact exist regarding the
reasonableness of the official’s conduct”). 9
Once the burden of proof shifts to the plaintiff, the plaintiff must negate qualified
immunity. Brown, 623 F.3d at 253. This burden is not satisfied through a mere showing of “some
metaphysical doubt as to the material facts” or by “conclusory allegations,” “unsubstantiated
Because Warden Martin, Sgt. Anderson, Sgt. Burkholder, Sgt. Lucero, Sgt. Jackson, Sgt. Mogilnicki, Officer Taylor,
Officer Randal, and CMA Raper have asserted their entitlement to qualified immunity in their summary
judgment motions, the burden has shifted to Patrick to demonstrate that they are not entitled to qualified immunity.
See, e.g., McClendon, 305 F.3d at 323.
9
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assertions,” or “only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal quotation marks and
citations omitted). Instead, on summary judgment, “the plaintiff can no longer rest on the pleadings
. . . [, ]and the court looks to the evidence before it. . . .” McClendon, 305 F.3d at 323 (internal
quotation marks omitted) (citing Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). However, the
court looks to this evidence “in the light most favorable to the plaintiff,” McClendon, 305 F.3d at
323, with “all inferences . . . drawn in his favor.” Brown, 623 F.3d at 253.
The Court now addresses Defendants’ respective motions for summary judgment in the
instant case. Its analysis involves the following steps:
First, because several defendants assert the defense of qualified immunity in their motions,
the Court will restate the applicable test for determining whether a defendant is entitled to qualified
immunity. Additionally, the Court will restate the applicable law regarding deliberate indifference
to safety and health, as it is essential for evaluating several of the motions.
Second, the Court will examine the motions made by the correctional officer defendants
and Defendant CMA Raper. It will apply the law regarding deliberate indifference to prisoners’
safety and health to each of these defendants.
Third, the Court will examine the motions made by the sergeant defendants, applying the
appropriate law regarding deliberate indifference to each sergeant defendant.
Fourth, the Court will examine the motion made by Defendant Warden Martin. It first will
examine Patrick’s deliberate indifference claim against Warden Martin and Warden Martin’s
Eleventh Amendment immunity defense to that claim. Then, it will examine Patrick’s access-tothe-courts claim against Warden Martin.
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In the fifth, sixth, and seventh steps of its analysis, the Court will examine the motions filed
by TDCJ, TTUHSC, and the State of Texas. It will restate the applicable law regarding the ADA
and the RA and then examine whether TDCJ, TTUHSC, and the State of Texas have violated it.
I
In this section, the Court states the applicable law regarding qualified immunity and
deliberate indifference to prisoners’ safety and health.
A. Qualified Immunity under 42 U.S.C. § 1983
Pursuant to 42 U.S.C. § 1983, private citizens may sue public officials in federal courts for
violations of federal statutory or constitutional rights that those officials have committed against
them. See Monroe v. Pape, 365 U.S. 167, 171 (1961). However, public officials enjoy an immunity
from liability under Section 1983 known as qualified immunity. When properly applied to public
officials, qualified immunity “protects all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 34l (1986).
Qualified immunity serves several important goals. Perhaps most crucially, courts have
expressed a concern over “the deterrent effect that civil liability may have on the willingness of
public officials to fully discharge their professional duties.” Sanchez v. Swyden, 139 F.3d 464, 467
(5th Cir. 1998) (citing Pierson v. Ray, 386 U.S. 547, 555 (1967); Anderson v. Creighton, 483 U.S.
635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); and Scheuer v. Rhodes, 416 U.S.
232, 239–41 (1974)). Qualified immunity therefore counters this deterrent by helping to protect
public officials from liability. Additionally, qualified immunity helps to “avoid excessive
disruption of government.” Malley, 475 U.S. at 341 (internal quotation marks omitted). To this
end, qualified immunity serves to terminate a claim against a public official as soon as possible in
a judicial proceeding — even before discovery — “and permit the resolution of many insubstantial
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claims on summary judgment.” Id.; see also Siegert v. Gilley, 500 U.S. 226, 232 (1991) (quoting
Harlow, 457 U.S. at 818).
The Supreme Court has articulated a two-part test for determining if a “public official” is
entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). First, a court must
determine whether the defendant’s conduct violated a federal right. Tolan v. Cotton, 572 U.S. 650,
656 (2014). Second, a court must determine “whether the right in question was ‘clearly
established’ at the time of the violation.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
Regarding the second part of the test, “[g]overnmental actors are shielded from liability for
civil damages if their actions did not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Tolan, 572 U.S. at 656 (internal quotations
marks and citations omitted). More precisely, for a violation of clearly established federal rights
to occur, “[p]re-existing law must dictate, that is, truly compel (not just suggest or allow or raise a
question about), the conclusion for every like-situated, reasonable government agent that what the
defendant is doing violates federal law in the circumstances.” See Pierce v. Smith, 117 F.3d 866,
882 (5th Cir. 1997) (emphasis in original omitted). If officers of reasonable competence could
disagree as to whether the plaintiff’s rights were violated, the officer’s qualified immunity remains
intact. See Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citing Malley, 475 U.S. at
341). In essence, “the salient question . . . is whether the state of the law” at the time of an incident
provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’”
Tolan, 572 U.S. at 656 (citing Hope, 536 U.S. at 741). Finally, in order to qualify as “clearly
established,” the law in question should not be defined at a “high level of generality” but instead
should be “particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017).
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As stated earlier, a qualified immunity defense alters the usual summary judgment burden
of proof. Brown, 623 F.3d at 253. If the moving party in a summary judgment motion “plead[s]
his good-faith entitlement to qualified immunity, the burden of proof shifts to the non-moving
party to rebut it. See Hathaway, 507 F.3d at 319. It is the plaintiff’s burden to present evidence
that a defendant is not entitled to qualified immunity when that defense is raised. See Bazan ex rel.
Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001). However, although “[t]he plaintiff
bears the burden of negating qualified immunity, . . . all inferences are drawn in his favor.” Brown,
623 F.3d at 253.
Pursuant to 42 U.S.C. § 1983, Patrick has sued Officers Taylor and Randal, CMA Raper,
Sgts. Anderson, Lucero, Jackson, Mogilnicki, and Burkholder, and Warden Martin in his official
capacity for violating Rodgers’s federal rights. Specifically, she sues them for violating Rodgers’s
Eighth Amendment right to be free from cruel and unusual punishment by acting with deliberate
indifference toward his safety and health. These defendants have since asserted the defense of
qualified immunity and moved for summary judgment on that ground. Therefore, to survive
summary judgment, Patrick must raise a genuine issue of material fact with respect to both parts
of the qualified immunity test. Since the first part requires an actual violation of federal rights, it
is necessary to discuss the law regarding violations of the Eighth Amendment through deliberate
indifference.
B. Violation of the Eighth Amendment Through Deliberate Indifference to Prisoners’
Safety and Health
The Eighth Amendment prohibits the infliction of cruel and unusual punishments, and “the
treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment.” Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002)
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(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). This treatment and these conditions include
includes both the safety and health of prisoners.
1. Deliberate Indifference to Prisoners’ Safety
First, regarding safety, the Eighth Amendment imposes a duty on prison officials to protect
prisoners from violence at the hands of other inmates. Farmer, 511 U.S. at 832. However, they are
not expected to prevent all inmate-on-inmate violence. Id. at 834. A plaintiff making a claim for
failure to protect from inmate-on-inmate violence must prove two elements. First, the plaintiff
“must show that he [was] incarcerated under conditions posing a substantial risk of serious harm.”
Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (citing Newton v. Black, 133 F.3d 301, 308
(5th Cir. 1998)). This requirement of a substantial risk is the objective element of the claim.
Second, the plaintiff must show “that prison officials were deliberately indifferent to his need for
protection.” Jones, 188 F.3d at 326. This requirement of deliberate indifference is the subjective
element of the claim. See Farmer, 511 U.S. at 837 (“reject[ing] petitioner’s invitation to adopt an
objective test for deliberate indifference”).
The deliberate indifference requirement is an extremely high standard to meet. See
Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 882 (5th Cir. 2004)
(“We begin by emphasizing that our court has interpreted the test of deliberate indifference as a
significantly high burden for plaintiffs to overcome.”). A prison official acts with deliberate
indifference to a substantial risk of serious harm “only if (A) he knows that inmates face a
substantial risk of serious bodily harm and (B) he disregards that risk by failing to take reasonable
measures to abate it.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (emphasis added)
(citing Farmer, 511 U.S. at 847); see also Reeves v. Collins, 27 F.3d 174, 176–77 (5th Cir. 1994).
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Regarding (A), knowledge of deliberate indifference requires that “the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995)
(quoting Farmer, 511 U.S. at 837). By contrast, “[a]n official’s failure to alleviate a significant
risk that he should have perceived but did not, while no cause for commendation cannot . . . be
condemned as the infliction of punishment.” Farmer, 511 U.S. at 838 (emphasis added).
2. Deliberate Indifference to Prisoners’ Health
Second, regarding health, the Eighth Amendment also imposes a duty on prison officials
to provide adequate medical care to prisoners. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).
Courts have tended to analyze this duty under two distinct but related approaches.
The first approach follows the standards used to assess claims for failure to protect from
inmate-on-inmate violence. Under this approach, a claim for failure to provide adequate medical
care has both an objective and a subjective element. See Rogers v. Boatright, 709 F.3d 403, 407
(5th Cir. 2013) (“Eighth Amendment claims have objective and subjective components.”). For the
objective element, “[t]he plaintiff must prove objectively that he was exposed to a substantial risk
of serious harm.” Lawson v. Dallas Cty., 286 F.3d 257, 262 (5th Cir. 2002) (citing Farmer, 511
U.S. at 834). For the subjective element, “the plaintiff must show that jail officials acted or failed
to act with deliberate indifference to that risk.” Id.
The second approach places greater focus on the nature of the plaintiff’s medical needs.
Under this approach, “[a] plaintiff making a claim for failure to provide adequate medical care
“must prove that care was denied and that this denial constituted ‘deliberate indifference to serious
medical needs.” See Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (quoting Estelle, 429
U.S. at 104). A serious medical need is “one for which treatment has been recommended or for
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which the need is so apparent that even a layman would recognize that care is required.” Gobert,
463 F.3d at 345 n.12 (emphasis added). “[T]he facts . . . must clearly evince the medical need in
question and indicate that the denial of treatment was much more likely than not to result in serious
medical consequences.” See Johnson, 759 F.2d at 1238 (emphasis added).
Regardless of the approach used, the deliberate indifference requirement under either
approach is similar to the deliberate indifference requirement for a claim of failure to protect from
inmate-on-inmate violence. See Farmer, 511 U.S. at 837 (stating “that a prison official cannot be
found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate health or
safety” (emphasis added)). A showing of deliberate indifference requires the plaintiff to submit
evidence that prison officials “refused to treat [the prisoner], ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Johnson, 759 F.2d at 1238. Neither unsuccessful medical
treatment, acts of negligence, medical malpractice, nor a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances, constitute deliberate indifference. See Hall v. Thomas,
190 F.3d 693 (5th Cir. 1999); Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999); Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
For both ease of expression and conformity with existing case law, this Memorandum
Opinion will use the phrase “claims for deliberate indifference to safety” and variants thereof to
refer to claims for failure to protect from inmate-on-inmate violence. Similarly, this Memorandum
Opinion will use the phrase “claims for deliberate indifference to health” and variants thereof to
refer to claims for failure to provide adequate medical care.
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C. The Law Regarding Deliberate Indifference Is Clearly Established
The preceding discussion is pertinent to overcoming the first part of the qualified immunity
test: establishing that a federal right has been violated. To survive summary judgment, however,
the second part of the test must also be overcome. Specifically, Patrick must show that the law
regarding deliberate indifference to prisoners’ safety and health was “clearly established” at the
time of the incident. See Tolan, 572 U.S. at 656.
Here, the relevant law was clearly established. 10 In Farmer, Estelle, and the lines of cases
following from each, the Supreme Court is clear that prison officials have duties to protect
prisoners from violence and to provide them adequate medical care. They cannot be deliberately
indifferent to their safety and health. As Section I(B) showed, the Court of Appeals for the Fifth
Circuit has affirmed, followed, and expanded upon the holdings of the aforementioned cases.
Every reasonable prison official would, in light of the law established by these cases, conclude
that the conduct alleged by Patrick violates federal law. This Court finds that no officer of
reasonable competence could disagree whether the alleged conduct violated Rodgers’s rights.
Patrick therefore has overcome the second part of the qualified immunity test.
Since the second part has been overcome, Patrick only has to raise a genuine issue of
material fact as to the first part. That is, she only has to raise a genuine issue of material fact as to
whether each defendant asserting qualified immunity did in fact violate Rodgers’s Eighth
Supreme Court justices and Fifth Circuit judges have recently criticized qualified immunity doctrine in select cases
and controversies. See, e.g., Cole v. Carson, 935 F.3d 444, 477 (5th Cir. 2019) (Ho and Duncan, JJ., dissenting), as
revised (Aug. 21, 2019), cert. denied sub nom. Hunter v. Cole, No. 19-753, 2020 WL 3146695 (U.S. June 15, 2020)
(“[S]ome have criticized the doctrine of qualified immunity as a historical and contrary to the Founders’ Constitution
. . . . As originalists, we welcome the discussion.”); Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting
from denial of certiorari) (“I have previously expressed my doubts about our qualified immunity jurisprudence. . . .
Because our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”
(citations omitted)). However, this recent jurisprudence and commentary does not affect the outcome or analysis in
this case.
10
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Amendment rights through acting with deliberate indifference to his safety and health. The Court
now turns to the summary judgment evidence before it to answer this question.
II
In this section, the Court examines the summary judgment motions made by Defendants
Officer Taylor, Officer Randal, and CMA Raper. As stated in Section I(A), Patrick has sued these
Defendants under 42 U.S.C. § 1983 for violating Rodgers’s Eighth Amendment right to be free
from cruel and unusual punishment. Specifically, Patrick alleges that Officers Taylor and Randal
acted with deliberate indifference to his safety and health, while CMA Raper acted with deliberate
indifference only to Rodgers’s health. The Court begins by examining Patrick’s claims of
deliberate indifference to safety.
As noted earlier, Patrick’s claim for deliberate indifference to safety has an objective
element that she must establish. This objective element is not defendant-specific: it does not
require a separate and particularized inquiry for each defendant. Consequently, the Court starts by
determining whether Patrick is able to establish this element for summary judgment purposes.
A. Rodgers Was Incarcerated Under Conditions Posing a Substantial Risk of
Serious Harm from Inmate-on-Inmate Violence
To meet her summary judgment burden for the objective element of her claim for deliberate
indifference to safety, Patrick must show that there is a genuine issue of material fact that
conditions at the Clements Unit constituted a substantial risk of serious harm to Rodgers from
inmate-on-inmate violence. The Court finds that she has met this burden based on the summary
judgment evidence before it. The conditions under which Rodgers was incarcerated include, but
are not limited to, the following.
First, Rodgers’s cellmate Greggs assaulted Rodgers on five occasions and caused
significant injuries to Rodgers as a result. (P-APP 15, 16, 18, 30, 338–346).
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Second, Rodgers was “cachectic,” or malnourished, due to either an untreated medical
condition or insufficient nutrient intake. (P-APP 15). He also had a large bedsore when he was
ultimately provided medical care and treatment for his injuries. (P-APP 18). Furthermore, there is
evidence that Rodgers’s malnourished condition occurred over the course of several days or weeks.
(P-APP 40–42). This contributed to his inability to recuperate from injuries caused by violent
interactions with his cellmate. Id. Indeed, as a result of this, Greggs ended up outweighing Rodgers,
placing Rodgers in a disadvantaged position during any confrontation. (ECF No. 361-7 at 9).
Third, correctional officers were not diligent in performing required random cell searches
on the ECB block at the Clements Unit that housed Rodgers. There are three sources of evidence
for this conclusion.
To start, a demonstrative table produced by counsel for Patrick compares the cell searches
that correctional officers claim to have performed with the cell door activity logs. (P-APP 1013–
1023). This helps the Court determine if a logged or required cell search was actually performed.
(P-APP 420–603, 604–829). The table reveals that correctional officers routinely failed to perform
TDCJ-required cell searches for contraband in the ECB block at the Clements Unit. It further
reveals that those correctional officers routinely falsified such records to indicate those type of
searches were performed. Id. This behavior was known as “pencil-whipping.” (P-APP 980).
Additionally, according to the deposition testimony of Officer Chapman, Officer Chapman
and other correctional officers “wrote down” that they performed security searches “even if [they]
didn’t do it.” (P-APP 980–981). This is a clear instance of pencil-whipping.
Finally, in his deposition testimony, Officer Taylor admitted to engaging in pencilwhipping of cell searches and improperly conducting bed book counts. (P-APP 992–993).
Moreover, he indicated that when other correctional officers engaged in pencil-whipping, they
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would “roll the door” to make it look like the door had been opened to conduct a cell search. This
is because these correctional officers were aware that such searches were monitored. He further
indicates that these correctional officers were attempting to hide such pencil-whipping behaviors
from whoever monitored the “computerized records.” Id. All of this evidence indicates that
correctional officers failed to properly perform assigned cell searches.
Fourth, TDCJ procedures were also not followed regarding daily bed checks, medication
distribution, and food distribution. Since these procedures are designed to ensure inmate welfare
and safety, a failure to properly conduct them creates a risk of harm to inmates. This failure is
established by the deposition testimony of several correctional officers.
Specifically, Officer Chapman indicated that other correctional officers mentoring her
trained her improperly in conducting bed checks, medication distribution, and food distribution.11
For example, Officer Chapman indicated that she was trained by Correctional Officer Raul Bernal
(“Officer Bernal”) not to properly conduct bed book counts. Id. In fact, her testimony indicates
that she was aware of the need to visually inspect each inmate’s identification card at the cell door
when conducting such counts according to procedure. However, her testimony states that she was
told by Officer Bernal that she only needed to verbally “get [the inmate’s] name and number”
instead of following this procedure. Id. The same lack of diligence and adherence to procedure
occurred with medication distribution and food distribution. Id. Officer Bernal testified that he was
trained to “just get through” bed book counts not by following proper procedures, but rather by
promoting speed over diligence. (P-APP 832). Officer Randal testified that he believed he was
11
TDCJ has policies and written guidance regarding the proper procedures to be followed in conducting bed checks
and cell searches. (P-APP 350). TDCJ policy identifies a “cell search” as a “physical examination of an offender’s
assigned housing area for contraband.” Id. Cell searches are required at least once per calendar month, with a list of
cells to be searched designated by the warden or the warden’s designee. (P-APP 351). Bed checks are required twice
daily and are designed to determine that a “living, breathing” body is being counted at a particular location.
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properly performing a cell search by simply visually inspecting the cell without ever opening the
cell door at all. (P-APP 263–274).
All of this evidence shows that (1) Rodgers was injured by and in danger from other
prisoners; (2) he was malnourished; and (3) the correctional officers did not perform the required
cell searches, bed checks, and other safety observations of inmates in accordance with TDCJ
policies. As outlined above, their failure to perform the basic functions of their jobs relating to
prisoner safety resulted in a substantial risk of serious harm to inmates, including Rodgers. Patrick
has therefore shown that there is a genuine issue of material fact as to whether Rodgers was
incarcerated under conditions that posed a substantial risk of serious harm to him. Having
determined this, the Court now turns to the motions of specific Defendants.
B. Officer Taylor
Officer Taylor moves for summary judgment on Patrick’s deliberate indifference claims
against him in his individual capacity. First, Officer Taylor argues that Patrick’s claim for
deliberate indifference to safety fails because there is no evidence that he was subjectively aware
of a substantial risk of serious harm to Rodgers. Second, Officer Taylor argues that Patrick’s claim
for deliberate indifference to health fails because there is no evidence that Officer Taylor was
aware of and ignored Rodgers’s serious medical needs. Officer Taylor contends that the failure of
these claims means that there is no genuine issue of material fact that a violation of Rodgers’s
federal — in this case, constitutional—rights has occurred. Thus, Officer Taylor asserts entitlement
to qualified immunity on both claims.
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1. Officer Taylor Was Deliberately Indifferent to Rodgers’s Safety
As explained earlier, Patrick already has established the objective element of her deliberate
indifference to safety claim against Officer Taylor. The Court now finds that she has also
established the subjective element of that claim.
As stated in Section I(B)(1), the subjective element is met only if a prison official knows
that an inmate faces a substantial risk of serious harm and disregards that risk by not taking
reasonable measures to abate it.
Here, Officer Taylor knew that Rodgers faced a substantial risk of serious harm from other
inmates but disregarded the risk. He knew that the ECB pod housed high-risk inmates.
(P-APP 992–993). However, by his own admission, he engaged in the practice of pencil-whipping
cell search logs and observed other correctional officers do the same. (P-APP 992–993). To engage
in pencil-whipping is clearly a failure to take reasonable measures to abate the risk of violence
between inmates.
Additionally, Officer Taylor saw an injury on Rodgers’s cheek on January 10, 2016, but
he failed to report this injury to his supervising sergeant as required. (P-APP 994–995). Despite
believing that Sgt. Mogilnicki — his supervising sergeant on shift that night — would not have
responded to the injury if informed of it, Officer Taylor nevertheless acknowledged that he should
have reported it. Id.
The Court therefore finds that Officer Taylor has met the subjective element for Patrick’s
claim of deliberate indifference to safety. Hence, Patrick has successfully established both
elements of her deliberate indifference to safety claim against Officer Taylor for summary
judgment purposes.
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2. Officer Taylor Was Not Deliberately Indifferent to Rodgers’s Health
The Court, however, does not find that Patrick has established her claim against Officer
Taylor for deliberate indifference to health. As stated in Section I(B)(2), there are two approaches
under which claims for deliberate indifference to health can be examined. However, under both
approaches, Patrick would need to show that Officer Taylor acted with deliberate indifference to
Rodgers. Specifically, she would need to show that he knew of and disregarded some serious
medical need of Rodgers or a substantial risk of serious harm to his health.
Here, there is no summary judgment evidence that Officer Taylor even knew that Rodgers
had a serious medical need or faced a substantial risk of serious harm to his health. The Court
looks first at knowledge of serious medical needs.
Rodgers’s weight loss does not qualify as a serious medical need because it would not have
been obvious to Officer Taylor that treatment was needed for it. Moreover, there is no evidence
that Officer Taylor was made aware of the need for treatment. For instance, there is no evidence
that Rodgers requested assistance from Officer Taylor regarding his weight loss. There also is no
evidence that Officer Taylor observed that he was unable to function due to his weight loss.
Similarly, the bruise on Rodgers’s cheek does not qualify as a serious medical need. A minor bruise
would not have indicated any obvious medical need to a layman, but rather a safety need. Finally,
there is no evidence that Officer Taylor had ever observed Rodgers experiencing any type of
mental health crisis.
Regarding knowledge of risks to health, Officer Taylor did not know that Rodgers had any
serious medical need, so he could not have known that he faced any substantial risk of serious
harm to his health arising from any purported medical needs. And there is nothing else in the record
that would indicate that some other substantial risk of serious harm to his health existed.
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Again, as stated in Section I(B)(2), there are two approaches to deliberate indifference to
health claims — one of which mirrors deliberate indifferent to safety claims and therefore has an
objective and a subjective approach. Officer Taylor did not meet the subjective element of that
approach because he did not act with deliberate indifference to Rodgers’s health. Hence, the Court
does not need to consider the objective element of that approach at all. Indeed, to resolve Patrick’s
claim under both approaches, it is instead sufficient to find Officer Taylor did not act with
deliberate indifference to Rodgers’s health. This is because if Officer Taylor did not with deliberate
indifference to Rodgers’s health in general, then he clearly did not act with deliberate indifference
to his “serious medical needs.” Consequently, Patrick has failed to establish her claim for
deliberate indifference to health against Officer Taylor.
*
*
*
Therefore, the Court finds that Officer Taylor is not entitled to qualified immunity on
Patrick’s claim of deliberate indifference to Rodgers’s safety, and his motion for summary
judgment on this claim is DENIED. However, the Court finds that Officer Taylor is entitled to
qualified immunity on Patrick’s claim of deliberate indifference to Rodgers’s health.
Consequently, his motion for summary judgment on this claim is GRANTED, and this claim
against him is DISMISSED with prejudice.
C. Officer Randal
Officer Randal moves for summary judgment on Patrick’s deliberate indifference claims
against him in his individual capacity. First, Officer Randal argues that Patrick’s claim for
deliberate indifference to safety fails because there is no evidence that he was subjectively aware
of a substantial risk of serious harm to Rodgers. Second, Officer Randal argues that Patrick’s claim
for deliberate indifference to health fails because there is no evidence that Officer Randal was
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aware of and ignored Rodgers’s serious medical needs. Officer Randal contends that the failure of
these claims means that there is no genuine issue of material fact that a violation of Rodgers’s
constitutional rights has occurred. Thus, Officer Randal asserts entitlement to qualified immunity
on both claims.
1. Officer Randal Was Deliberately Indifferent to Rodgers’s Safety
The standards that the Court used in Section II(B)(1) with respect to Officer Taylor apply
to Patrick’s deliberate indifference to safety claim against Officer Randal. Under those standards,
Officer Randal, like Officer Taylor, is not entitled to qualified immunity on that claim.
Officer Randal knew that the ECB pod housed high-risk inmates and that it was not
unlikely that they might injure one another. (P-APP 265–266). Nevertheless, according to his own
testimony, he did not require inmates to get out of bed to perform bed checks, despite the training
he received in how to properly conduct a bed check. (P-APP 263–274). He also did not open cell
doors during cell searches, despite indicating he did so on the logs. Id. In fact, between November
2015 and January 18, 2016, Officer Randal indicated that he completed nineteen cell searches,
none of which actually resulted in opening a cell door. Id.
Hence, like Officer Taylor, Officer Randal knew that Rodgers faced a substantial risk of
serious harm from other inmates and disregarded that risk. Consequently, the Court finds that
Officer Randal has met the subjective element for Patrick’s claim of deliberate indifference to
safety. Patrick has therefore successfully established both elements of her claim for summary
judgment purposes.
2. Officer Randal Was Not Deliberately Indifferent to Rodgers’s Health
The standards that the Court used in Section II(B)(2) with respect to Officer Taylor also
apply to Patrick’s deliberate indifference to health claim against Officer Randal. Under those
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standards, Officer Randal, like Officer Taylor, is entitled to qualified immunity on that claim. This
is because there is no summary judgment evidence that Officer Randal even knew that Rodgers
had a serious medical need or faced a substantial risk of serious harm to his health. The Court starts
with knowledge of serious medical needs.
Patrick’s claim concerns Officer Randal’s conduct during a bed check of Rodgers’s cell on
January 17, 2016. Under TDCJ policy, correctional officers must require prisoners in a cell to get
out of or down from beds during bed checks. When Officer Randal requested this while performing
a bed check of Rodgers’s cell, both Rodgers and Gregg told Officer Randal that Rodgers could not
climb down from the top bunk of their bed due to Rodgers’s having been medicated for that
evening. (TDCJ-APP 2170–71). According to his testimony, Officer Randal decided not to require
Rodgers to climb down because in his experience, it was unsafe to require medicated inmates to
climb down from the top bunk of their beds. (TDCJ-APP 2136–38, 2181–85). Indeed, the summary
judgment record indicates that Officer Randal had once observed a medicated inmate almost injure
himself while climbing out of bed. See (TDCJ-APP 2184–85). Because of this, Officer Randal
instead asked Greggs to bring him Rodgers’s identification card. (TDCJ-APP 2185). He then told
Rodgers to turn over in the bed and state his name and number so that they could be matched with
the card. Id.
In doing this, Officer Randal did indeed fail to comply with TDCJ policy regarding bed
check. However, his failure does not rise to the level of deliberate indifference because there is no
evidence that he knew of but disregarded a serious medical need of Rodgers. Rodgers’s inability
to climb out of bed due to being medicated for the night would not indicate to a layman that he
had a serious medical need that required treatment. The fact that Rodgers received injuries leading
to his death the following day does not affect this point. The injuries that he received from Gregg
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probably were inflicted during the night of January 17, 2016 — after Officer Randal had completed
the bed check. Hence, Officer Randal would not have been able to know about those injuries —
let alone disregard them.
Regarding knowledge of substantial risks to health, Officer Randal did not know that
Rodgers had any serious medical need, so he could not have known that he faced any substantial
risk of serious harm to his health arising from any purported medical needs. And there is nothing
else in the record indicating that some other substantial risk of serious harm to his health existed.
Like Officer Taylor, Officer Randal did not act with deliberate indifference to Rodgers’s
health. Hence, as with Officer Taylor, the Court does not need to consider the objective element
under any approach to claims for deliberate indifference to health. Consequently, Patrick has failed
to establish her claim for deliberate indifference to health against Officer Randal.
*
*
*
Therefore, the Court finds that Officer Randal is not entitled to qualified immunity on
Patrick’s claim of deliberate indifference to Rodgers’s safety, and his motion for summary
judgment on this claim is DENIED. However, the Court finds that Officer Randal is entitled to
qualified immunity on Patrick’s claim of deliberate indifference to Rodgers’s health.
Consequently, his motion for summary judgment on this claim is GRANTED, and this claim
against him is DISMISSED with prejudice.
D. CMA Raper
CMA Raper moves for summary judgment on Patrick’s deliberate indifference to health
claim against her. CMA Raper argues that Patrick’s claim of deliberate indifference to health fails
because there is no evidence that CMA Raper acted with deliberate indifference to Rodgers’s
health. Consequently, CMA Raper contends that she is entitled to qualified immunity on this claim
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because there is no genuine issue of material fact that a violation of Rodgers’s constitutional rights
has occurred.
The Court finds that CMA Raper is entitled to qualified immunity on this claim and
GRANTS her motion for summary judgment on it. Specifically, the Court finds that Patrick has
not raised a genuine issue of material fact that CMA Raper acted with deliberate indifference to
Rodgers’s health.
As stated in Section I(B)(2), there are two approaches for examining claims for deliberate
indifference to health. But regardless of which approach is used, Patrick would need to show that
CMA Raper acted with deliberate indifference to Rodgers in some form. Specifically, she would
need to show that CMA Raper knew of and disregarded some serious medical need of Rodgers or
a substantial risk of serious harm to his health.
Here, CMA Raper’s conduct did not amount to deliberate indifference. It is true that the
correctional officer escorting CMA Raper did not follow proper TDCJ procedure in distributing
medication to Rodgers by having him open the cell door to take the medication. (TDCJ-APP 1193).
But a failure to follow this procedure does not, by itself, rise to the level of deliberate indifference.
At best, it is just negligence. Additionally, medication aides such as CMA Raper are under no duty
or expectation to assess a patient’s health status as they deliver medication (TTTUHSC-APP 11).
The correctional officer’s failure to follow TDCJ procedure cannot be imputed to CMA Raper.
The Court also rejects the argument that CMA Raper knew of and disregarded a serious
medical need of Rodgers or a substantial risk of serious harm to his health when she personally
observed Rodgers. The summary judgment evidence indicates that CMA Raper personally
observed Rodgers on January 10, 11, 12, 13, 14, and 17 of 2016 while distributing medications to
inmates in the Clements Unit. On three of those days — January 10, 11, and 17 — she expressed
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concern to the officer accompanying her that Rodgers’s cell was always dark. 12 Each time, the
officer responded by stating that, usually, the inmates were workers that slept at different times
and that they wanted their cells to be dark. 13 On January 17 in particular, Officer Randal also told
her that (1) he heard two different identification numbers and voices when she asked for inmate
identification; (2) Rodgers had gotten up to take his new inmate identification picture only a few
days prior; and (3) TDCJ officers perform bed counts that require inmates to come to the cell door.
(RAPER-APP 59, 61). CMA Raper also heard two different identification numbers and two
different voices when she asked Rodgers and his cellmate for inmate identification, which led her
to assume that she had heard Rodgers speak. Although she was unable to see Rodgers’s face or
body due to Rodgers facing the wall, his bedsheets, and the lack of lighting in his cell, see
(RAPER-APP 61–62, 65, 82), she “assumed [Rodgers] was asleep” based on what Officer Randal
told her. See (RAPER-APP 59, 61).
The Court finds that even when viewed in a light most favorable to Patrick, this evidence
would not be sufficient for a reasonable jury to find that CMA Raper knew and disregarded that
Rodgers had a serious medical need or faced a substantial risk of serious harm to his health. This
is for the following two reasons:
First, regarding serious medical needs, while CMA Raper did observe Rodgers’s lack of
movement, there is nothing in the record suggesting that it would have been obvious to her that
On January 10, 2016, CMA Raper delivered medications to Rodgers’s cell. See (RAPER-APP 64, 80). At the time,
she expressed her concern to an unidentified accompanying correctional officer that Rodger’s cell was always dark.
See (RAPER-APP 44). The next day on January 11, she again delivered medications to Rodgers’s cell, see (RAPERAPP 64, 80), and again expressed the same concern to a different unidentified officer with her. See (RAPER-APP 45–
46). Finally, on January 17, the day before Rodgers died, she expressed the same concern to yet a third officer —
Officer Randal — while distributing medication, adding this time that Rodgers was always on his bunk, always on his
side, and always facing the wall of the cell. See (RAPER-APP 59–60, 78–82).
13
The officer accompanying CMA Raper on January 11, 2016, also told her that only the inmate’s personal cell lights
— and not the unit pod lights — could be turned on and shined his flashlight in Rodgers’s cell. (RAPER-APP 46).
12
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the motionlessness was due to some serious medical need. To the contrary, she had been told by
Officer Randal that the cellmates worked, from which she inferred that Rodgers was sleeping.
Second, regarding risks to health, CMA Raper assumed that Rodgers had spoken during
medication distribution, and nothing before the Court suggests that she was ever informed of any
risk of harm to Rodgers’s health, let alone a substantial one. And as stated earlier, she concluded
that Rodgers’s lack of movement was due to his sleeping rather than any such risk of harm.
Perhaps most importantly, even if CMA Raper did know about Rodgers’s serious medical
needs or about substantial risks of serious harm to his health, the record clearly shows that she did
not disregard them. Instead, she repeatedly voiced her concerns to the officers accompanying her
about the lack of lighting in Rodgers’s cell, and she voiced her concern about Rodgers’s lack of
movement to Officer Randal. And every time she voiced a concern, she was provided an
explanation that assuaged it. Perhaps she should have done more, but no reasonable jury could
conclude that she disregarded any medical needs or risks. At most, the evidence shows that she
was negligent, not deliberately indifferent.
Since CMA Raper did not act with deliberate indifference to Rodgers’s health, the Court
does not need to consider the objective element under any approach to claims for deliberate
indifference to health. To resolve Patrick’s claim under any approach, it is sufficient to find that
CMA Raper did not act with deliberate indifference to Rodgers’s health. Hence, Patrick has failed
to establish her claim for deliberate indifference to health against CMA Raper.
*
*
*
Therefore, the Court finds that CMA Raper is entitled to qualified immunity on Patrick’s
claim of deliberate indifference to Rodgers’s health. Consequently, her motion for summary
judgment on this claim is GRANTED, and this claim against her is DISMISSED with prejudice.
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III
In this section, the Court examines the summary judgment motions made by Defendants
Sgt. Anderson, Sgt. Burkholder, Sgt. Lucero, Sgt. Jackson, and Sgt. Mogilnicki (collectively, “the
sergeants”). As stated in Section I(A), Patrick has sued the sergeants under 42 U.S.C. § 1983 for
violating Rodgers’s Eighth Amendment right to be free from cruel and unusual punishment.
Specifically, Patrick alleges that the sergeants acted with deliberate indifference to Rodgers’s
safety and health.
It is an established rule that there is no vicarious or respondeat superior liability of
supervisors — such as the sergeants — under 42 U.S.C. § 1983. See Thompkins v. Belt, 828 F.2d
298, 303–04 (5th Cir. 1987) (“Under section 1983, supervisory officials are not liable for the
actions of subordinates on any theory of vicarious liability.”) (citations omitted). Hence, the
sergeants here cannot be held vicariously liable for any of the constitutional violations committed
by the correctional officers they were supervising.
“However, a supervisor may be held liable if there exists either (1) his personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation” Id. at 304 (citing Harvey v.
Andrist, 754 F.2d 569, 572 (5th Cir. 1985)). Consequently, to establish her claims against the
sergeants for deliberate indifference to safety and health, Patrick must show at least one of two
things. She must show either that the sergeants were personally involved in the constitutional
deprivation that Rodgers suffered or that they performed some wrongful conduct that has a
sufficient causal connection with that deprivation. The Court begins by analyzing Patrick’s
arguments for the latter.
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A. The Sergeants Are Not Liable for Implementing a Policy That Deprived Rodgers of
His Constitutional Rights
Patrick argues that the sergeants acted with deliberate indifference to Rodgers’s safety and
health by perpetuating and participating in a widespread systemic failure to adequately perform
duties. The Court understands Patrick here to be arguing the following. Even if the sergeants were
not personally involved in the deprivation of Rodgers’s constitutional rights, they are still liable
for that deprivation. And this is because their perpetuation and participation in the alleged systemic
failure described above constitutes wrongful conduct that has a sufficient causal connection with
Rodgers’s deprivation.
The Court rejects this argument because there is no sufficient summary judgment evidence
that the sergeants implemented whatever policy led to this alleged failure. “Supervisory liability
exists even without overt personal participation in the offensive act if supervisory officials
implement a policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ and
is ‘the moving force of the constitutional violation.’” Thompkins, 828 F.2d at 304 (citations
omitted). When a supervisor does not knowingly disregard the safety or health of a specific
defendant, he cannot be held liable unless he failed to correct a policy he knew was
unconstitutional and his failure to correct it caused the defendant’s injuries. See id. (stating that if
the defendant “did not knowingly disregard [the plaintiff’s] pleas to see a doctor, he cannot be held
liable unless he knew the jail’s system was so deficient as to expose prisoners to substantial risk
of significantly unmet serious medical needs—i.e., was unconstitutional—and failed to properly
attempt to correct it, and unless his action or inaction in this respect caused Thompkins’ injuries”
(emphasis in original)).
Here, Patrick has not provided sufficient evidence that the sergeants implemented any
policy that resulted in a violation of Rodgers’s constitutional rights. Patrick attempts to argue that
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the pervasiveness of pencil-whipping by correctional officers and the obviousness of the risks it
poses to Rodgers’s safety and health are sufficient circumstantial evidence to show that the
sergeants had implemented a deficient supervisory policy. But the Court rejects this argument for
the following three reasons.
First, the testimony of the correctional officers who were supervised or trained by these
sergeants does not indicate a policy of tolerating or even an approval of the pervasive pencilwhipping. Instead, it at most indicates some knowledge of understaffing and some knowledge
about the possibility that pencil-whipping may occur in such situations. As outlined in III(B)(iii),
none of this is evidence of any direction or approved custom to falsify logs or fail to perform cell
searches. Second, the correctional officers at times appeared to take affirmative steps to hide their
pencil-whipping behavior from their sergeants. This indicates that they knew that their sergeants
would disapprove of their actions if the sergeants found out about it. Third, there is no evidence
that correctional officers went unpunished if their sergeants discovered that they were pencilwhipping.
Patrick also attempts to argue that this case is analogous to Pugh v. Rockwall Cty., CIV. A.
3:98-CV-2142-P, 2000 WL 730426 (N.D. Tex. May 19, 2000) (unreported). In Pugh, a pre-trial
detainee plaintiff sued a jail administrator defendant for implementing a policy where jailers would
fail to visually inspect, count, protect, and document prisoners, which resulted in harm to the
plaintiff. The court denied the defendant’s motion for summary judgment on the basis of qualified
immunity, finding that the plaintiff had raised genuine issues of material fact as to whether a
deficient policy had been implemented. However, this Court notes two important differences
between Pugh and the instant case.
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First, the appropriate standards for Pugh and the instant case are different. For pretrial
detainees, a condition or restriction of pretrial detention that is not reasonably related to a
legitimate government objective constitutes an unconstitutional punishment. See Hare v. City of
Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998) (“Conversely, if a restriction or condition is not
reasonably related to a legitimate [government] goal—if it is arbitrary or purposeless—a court
permissibly may infer that the purpose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.” (quoting Bell v. Wolfish, 441 U.S. 520,
539 (1979)). “This standard is contrasted with the requirement of ‘deliberate indifference’, which
has been employed in cases involving prisoner claims of Eighth Amendment violations . . . .”
Hare, 135 F.3d at 326 (citing Estelle, 429 U.S. at 104–05). The standard for pretrial detention is
higher than the deliberate indifference standard for prisoners. See Hare, 135 F.3d at 327 (stating
that the standard of care for pretrial detention claims is at minimum deliberate indifference but
suggesting that it is actually somewhere between deliberate indifference and negligence). This
means that the appropriate standard in Pugh is more demanding. Hence, even if the facts in Pugh
and the instant case were essentially the same, this does little to show that the Court should reach
the same outcome in this case as in Pugh.
Second, in Pugh, the defendants’ subjective awareness of the prisoners’ safety differed
from the Defendants’ subjective awareness in the instant case. The defendants in Pugh were clearly
aware of the safety risks to the prisoners and disregarded them. Pugh, 2000 WL 730426 at *9–10.
The facts in that case indicate that “[the defendant] knew that these maximum-security inmates
were not being regularly monitored or even checked. In fact, [he] knew that the jailers were
falsifying the hall log, which may cause outside observers . . . to believe the inmates were being
observed more regularly.” Id. at *10. By contrast, the summary judgment evidence in this case
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indicates that out of the sergeants, only Sgt. Burkholder can be said to have had a comparable
mental state, at least as it pertains to pencil-whipping. As outlined below, only Sgt. Burkholder
might have had knowledge that the correctional officers were falsifying records or failing in their
duties to monitor inmates.
Thus, Pugh is distinguishable from the instant case in very important respects. For all the
reasons discussed above, the Court finds that the sergeants are not liable for implementing a
deficient policy that deprived Rodgers of his constitutional rights.
B. Some Sergeants Are Liable for Depriving Rodgers of Constitutional Rights
Patrick also argues that the sergeants were personally involved in the deprivation of
Rodgers’s constitutional rights. Specifically, she argues that they acted with deliberate indifference
to Rodgers’s safety and health by failing to properly oversee the correctional officers who
ultimately engaged in pencil-whipping in the Clements Unit where Rodgers was housed. The Court
finds that Patrick has raised a genuine issue of material fact as to whether Sgts. Burkholder and
Mogilnicki personally deprived Rodgers of his constitutional rights in this manner. It does not,
however, find that she has done so with respect to the other sergeants.
In presenting its reasoning for this conclusion, the Court begins by stating the standards for
supervisory liability when a supervisor is personally involved in the deprivation of constitutional
rights. Then, it restates relevant background facts about the sergeants’ duties and conduct. Finally,
it examines the liability of the sergeants, collectively and individually.
1. Supervisory Liability When Supervisors Are Personally Involved in the
Deprivation of Constitutional Rights
It is first necessary to state the applicable law regarding supervisory liability when a
supervisor is personally involved in depriving a defendant of his constitutional rights. When a
supervisor deprives a defendant of rights in this fashion, it is through a failure to adequately
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supervise or train. A three-part test exists to determine whether a supervisor’s failure to adequately
supervise or train constitutes deliberate indifference. Specifically, “[i]n a Section 1983 claim for
failure to supervise or train, the plaintiff must show that: (1) the supervisor either failed to
supervise or train the subordinate official; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts
to deliberate indifference.” Goodman v. Harris Cty, 571 F.3d 388, 395 (5th Cir. 2009) (internal
quotation marks omitted) (citing Smith v. Brenoettsy, 158 F.3d 908, 911–12 (5th Cir. 1998)).
The standard for deliberate indifference in the third part of the Goodman test is identical to
the standard discussed in I(B)(i). Specifically, “[f]or an official to act with deliberate indifference,
the official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Goodman, 571 F.3d at 395.
(internal quotation marks omitted) (citing Smith, 158 F.3d at 912). Then, knowing that there is a
substantial risk of serious harm, he must disregard that risk. See Farmer, 511 U.S. at 837 (stating
“that a prison official cannot be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and disregards an excessive risk to
inmate health or safety”).
“To establish deliberate indifference, a plaintiff usually must demonstrate a pattern of
violations and that the inadequacy of the training is obvious and obviously likely to result in a
constitutional violation. . . . Where a plaintiff fails to establish deliberate indifference, the court
need not address the other two prongs of supervisor liability.” Goodman, 571 F.3d at 395 (internal
quotation marks and citations omitted).
With this law in place, it is appropriate to examine the relevant facts pertaining to the
sergeants’ duties and conduct.
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2. Background Regarding the Sergeants’ Duties and Conduct
On September 15, 2014, TDCJ issued Security Memorandum SM-03.02 (rev. 5), which
was the policy in place regarding randomized cell searches during the times relevant to this lawsuit.
(P-APP 350). This policy defines a “cell search” as a “physical examination of an offender’s
assigned housing area for contraband.” Id. Cell searches are required at least once per calendar
month, with a list of cells to be searched designated by the warden or the warden’s designee.
(P-APP 351). Correctional officers document a cell search on a “Security Search Log,” indicating
cells searched for the day and any contraband found. Id. Security supervisors are required to
“randomly” examine completed cell searches to ensure these searches were properly completed by
correctional officers as indicated by the Security Search Log. Id. A “random” examination can be
performed by observing the search, reviewing video footage of the search, or performing a followup search of the cell. Id. When a supervisor performs a random cell search confirmation by one of
these methods, the supervisor must indicate the search was properly performed. The supervisor
must do this by initialing the Security Search Log in the appropriate box next to the original entry
of the cell search that was conducted. Id.
TDCJ also issued Post Order PO-07.005 (rev. 7) to outline the specific duties of sergeants
in complying with SM-03.02 (rev. 5). (TDCJ-APP 981–982). This post order indicates that
sergeants are responsible for being the first line of supervisors to confirm that correctional officers
properly performed cell searches. Specifically, they are to randomly examine an unspecified
number of searches performed on a shift by the correctional officer under their supervision. Id.
TDCJ also issued PO-07.004 (rev. 8) to outline the specific duties of lieutenants in
complying with SM-03.02 (rev. 5). (TDCJ-APP 945). This order requires lieutenants to conduct
“frequent” and “unannounced” inspections of all areas where staff are assigned and to ensure
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adequate staff are assigned to perform all essential functions. Id. Lieutenants also can sign Security
Search Logs and are required to ensure “cell searches, common area searches, and cell inspections”
are conducted in accordance with SM-03.02. (TDCJ-APP 946).
The Court has reviewed the Security Search Logs that Patrick provided for the months of
November and December 2015 and January 2016. (P-APP 420–603). The Court was also provided
the cell door logs for the ECB pod for these same months, which indicate when and how long cell
doors on the ECB pod were opened on a daily basis. (P-APP 604–829). The Court has also
reviewed the comparison table of these logs and records generated by Patrick’s counsel that
indicates how often cell searches were not performed and when Security Search Logs were
falsified by correctional officers. (P-APP 1013–1023, 1025–1029). These records clearly indicate
that correctional officers were not performing these cell searches much of the time. They also
clearly indicate that sergeant or lieutenant supervisors were frequently initialing or signing
Security Search Logs without actively confirming that searches for contraband were performed.
Security cell searches were scheduled nine times during November and December 2015
and January 2016 for cell C-210 — Rodgers’s and Greggs’s cell. (P-APP 420–603). These
searches were scheduled for November 9, 19, 21, and 25, December 8, 18, and 31, and January 6
and 14. Id. The Court specifically notes that two security searches were scheduled on C-210 during
the month of January 2016. Id. Since these were after the first assault by Greggs is shown to have
occurred, the Court examines both closely.
First, on January 6, Correctional Officer Jason Dorsey indicated he performed a search of
cell C-210, which was initialed as confirmed by Sgt. Lucero that same day. (P-APP 553). Sgt.
Lucero disputes the legitimacy of these initials, which do appear to differ from initials that he
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indicated were legitimate. (P-APP 216). Nevertheless, he acknowledges that he wrongly initialed
other cell searches that he did not personally confirm through proper procedures. (P-APP 217).
Second, on January 14, Correctional Officer Franco indicated that he performed a search
of cell C-210, which was initialed as confirmed by Sgt. Jackson that same day. (P-APP 569). Sgt.
Jackson claimed that his initials and signature were forged and that he had not completed any
documentation on Security Search Logs during the months of December 2016 or January 2016.
(P-APP 893).
In light of the summary judgment evidence before it, the Court finds that Patrick has raised
a genuine issue of material fact that the sergeants’ supervision over all of these searches was
inadequate. This is because the officers beneath them engaged in widespread pencil-whipping. It
also finds that these searches could have revealed evidence of inmate-on-inmate violence
involving Rodgers. Finally, the Court finds that she has raised a genuine issue of material fact as
to whether these searches could have prevented violence against Rodgers or his death. After all, if
a failure to supervise or train correctional officers regarding any searches led to Rodgers’s attacks
and eventual death, then it would be regarding these searches.
Consequently, Patrick has raised a genuine issue of material fact as to the first two parts of
the Goodman test. She has shown that there is a genuine issue of material fact as to whether the
sergeants failed to supervise or train and whether this failure led to the deprivation of Rodgers’s
constitutional rights. The only question remaining for the Court is whether there is a genuine issue
of material fact as to the third part of the test: whether the sergeants’ failure to supervise or train
amounted to deliberate indifference. The Court now turns to the sergeants’ subjective awareness
of the correctional officers’ pencil-whipping.
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3. Some of the Sergeants’ Failure to Supervise or Train Amounted to
Deliberate Indifference to Rodgers’s Safety
To determine the sergeants’ subjective awareness of their subordinates’ pencil-whipping,
the Court examines the sergeants collectively and then individually.
Regarding the sergeants collectively, Patrick argues that because the sergeants knew the
Clements Unit was understaffed, they were aware of the pencil-whipping that occurred as a result
of the understaffing. The Court rejects this argument and finds that the sergeants did not have
subjective awareness of pencil-whipping merely from knowledge of understaffing.
Correctional Officer Jason Dorsey (“Officer Dorsey”) testified that sergeants had
knowledge of understaffing issues in regard to cell searches. (TDCJ-APP 1742–1748). Officer
Dorsey stated that three individuals were needed to conduct a proper cell search on the C-pod, due
to security concerns. Id. Frequently, only one officer would walk the pod due to the need for
officers in the administrative segregation unit and other areas of the prison. Id. Despite this, when
sergeants were contacted about the inability to conduct a search due to lack of staffing, the
sergeants would either respond “it needs to be done,” or they would come down themselves to the
pod to assist with the search. Id. Officer Dorsey admitted that such searches were not always
performed, but he did not know if sergeants were aware of this fact. Id. Officer Bernal testified
that he frequently failed to perform cell searches as required, but he too did not indicate that any
sergeants were aware of this failure. (TDCJ-APP 1764–1765). Officer Chapman testified that it
was other correctional officer mentors, including Officer Bernal, who instructed her not to follow
procedures in bed book count and in Security Search Logs. (TDCJ-APP 2280–2282). It was not
sergeants, captains or majors. Id. The Court also notes the deposition testimony of Officer Taylor,
which stated that he did not know if the sergeants knew that cell searches were not performed
because they were not on the pod during any of the searches. (P-APP 992–993). Officer Taylor
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also testified that he never observed a sergeant or supervisor participate in the “door rolls” other
officers used to avoid actually searching a cell. (P-APP 993).
There is nothing in this collective testimony before the Court indicating that any sergeants
ever told subordinates to pencil-whip forms or otherwise fail to perform searches. Rather, the
general response by the sergeants when asked was to “get it done” or that help would be sent. No
correctional officer indicated that the sergeants had an attitude of deliberate indifference to the
practice of pencil whipping. It also does not follow from the sergeants’ awareness of the
understaffing that they knew their orders to “get it done” in conducting cell searches were ignored.
After all, the testimony in the record indicates that the sergeants would assist in searches on
occasion and that the correctional officers would sometimes perform the search with insufficient
backup at risk to themselves. (P-APP 216–218). Although searches were frequently not performed,
this circumstantial evidence is insufficient to impute knowledge to the sergeants about this
practice. This is especially true given the testimony of the direct orders by sergeants in general to
perform the tasks when confronted with understaffing issues.
Four of the five sergeants in this lawsuit received disciplinary action because of their failure
to adequately conduct random checks to ensure cell searches were properly performed.
Specifically, Sgt. Anderson was disciplined for signing cell search logs when searches were not
completed. (P-APP 362). Sgt. Burkholder also was disciplined for the same reason. (P-APP 364).
Sgt. Jackson was disciplined for a violation of PO-07.004 in failing to complete unannounced
inspections of cell searches. (P-APP 370). Sgt. Lucero was disciplined for signing cell search logs
when searches were completed incorrectly. (P-APP 375). 14 In addition, one major was terminated,
two captains were disciplined, three lieutenants were disciplined, one additional sergeant not a
14
By contrast, Sgt. Mogilnicki does not appear to have been disciplined for this type of incident.
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party to this suit and ten correctional officers were disciplined, and one correctional officer
resigned from his position. (TDCJ-APP 148–149). However, based on the post orders these various
officers were found to have violated, these disciplinary proceedings did not require a finding of
subjective knowledge of the violation.
Thus, Patrick has not raised a genuine issue of material fact through disciplinary records
or other summary judgment evidence that the sergeants collectively acted with deliberate
indifference to Rodgers’s safety or health by their failure to adequately supervise the correctional
officers under them.
Regarding the sergeants individually, the Court examines each sergeant in the following
subsections. It finds that only Sgt. Burkholder’s and Sgt. Mogilnicki’s failure to supervise or train
amounted to deliberate indifference. 15
a. Sgt. Anderson
Sgt. Anderson testified that he properly supervised his subordinates concerning bed checks
and cell searches and was not aware that some may have failed to adequately perform their duties
under his supervision. (P-APP 854–855). Specifically, Sgt. Anderson indicated that if an inmate
did not get out of his bunk when a correctional officer was performing a bed book count, he would
go to the pod and check on the inmate by instructing him to come to the cell door. Id. Additionally,
Sgt. Anderson testified that he would personally observe bed book counts a few times a week, if
not daily, to make sure his subordinate officers were performing them correctly. Id. He never
observed them performing the bed book counts incorrectly. Id. When confronted with concerns
15
As the Court’s analysis indicates, the sergeants performed their duties with varying degrees of oversight. The Court
agrees that as the level of oversight and supervision by the sergeants on the pod during the shift decreased, the
likelihood of pencil-whipping behavior by that sergeant’s subordinate correctional officers increased. It is reasonable
to also consider whether an individual sergeant had knowledge of pencil-whipping behaviors by correctional officers
on the Clements Unit based on the time each sergeant spent overseeing these officers during the performance of their
duties on the pod.
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from his subordinates regarding time constraints, Sgt. Anderson stated that he told them to “take
as much time as [they] need to get it done.” Id. When deposed about the practice of pencilwhipping at the Clements Unit, Sgt. Anderson denied any knowledge of such practices:
Q.
During the time that you were a sergeant in ECB, 2015, 2016 time period,
did you ever discover that cell search logs were being filled out without cell
searches being done?
A.
No.
Id. Admittedly, Sgt. Anderson acknowledged that he would sign and initial the cell search logs of
his subordinates without visually observing them complete the cell searches. Id. But he did this
because he believed that his signing or initialing was only an indication that the searches had been
performed, not that he had witnessed them being performed. Id. No inference can be drawn that
he signed off or initialed the cell search logs with a subjective awareness of pencil-whipping.
The Court concludes that Patrick has failed to raise a genuine issue of material fact that
Sgt. Anderson had a subjective awareness of the pencil-whipping behaviors of his subordinate
officers. Hence, Patrick has failed to meet her summary judgment burden on the third part of the
Goodman test as it pertains to Sgt. Anderson.
b. Sgt. Lucero
Sgt. Lucero testified that he was familiar with the concept of pencil whipping. (P-APP 216–
218). Sgt. Lucero denied having any knowledge that his subordinates were engaged in this practice
prior to being disciplined in the matter concerning Rodgers. Id. Further, there is no summary
judgment evidence that Sgt. Lucero was aware that other individuals at the Clements unit engaged
in pencil-whipping, despite his knowledge of what the term means. Id. Specifically, he testified:
Q.
Did you ever feel like the officers were hiding the way they did things from
their sergeants or their supervisors?
A.
No.
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Q.
When did you become aware that cell searches were being documented but
not completed?
A.
After this incident.
Id. Sgt. Lucero testified that when he received complaints about time constraints from his
correctional officers, he would try to “get down there [to the pod] and help them” conduct the
searches himself. Id. Sgt. Lucero did admit to signing cell search logs without confirming or
observing the actual search—but based on the correctional officers’ representation. Id.
The Court concludes that Patrick has failed to raise a genuine issue of material fact that Sgt.
Lucero had a subjective awareness of pencil-whipping at the Clements Unit prior to the incident
with Rodgers. After all, a supervisor can be familiar with the term for taking short-cuts and forging
documentation without the knowledge or belief that such behavior is occurring under his
supervision. Hence, Patrick has failed to meet her summary judgment burden on the third part of
the Goodman test as it pertains to Sgt. Lucero.
c. Sgt. Jackson
Sgt. Jackson was deposed concerning his actions in supervising the ECB cell block and
completing or initialing cell search logs during the months of December 2015 and January 2016.
Sgt. Jackson testified that his initials and signature were forged on the cell search logs. (P-APP
889–893). He testified that, with all of his other duties, he simply did not realize he was not signing
cell search logs for a long period of time or that such completion of paperwork should have been
part of his daily duties. Id. This evidence shows that Sgt. Jackson either did not supervise any cell
searches on the C-block or ECB block during the months of December 2015 or January 2016 or
did not properly complete forms or paperwork concerning any random searches. Although this
potentially indicates a failure to properly perform his own job duties and to supervise his
subordinates, it does not rise to the level of deliberate indifference. There is no summary judgment
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evidence that Sgt. Jackson condoned the behavior of falsifying cell search logs or improperly
trained his subordinates in performing such searches. Sgt. Jackson also testified that he never
instructed anyone to engage in pencil-whipping or saw evidence of pencil-whipping prior to the
incident with Rodgers:
Q.
Did you come across any of this before being disciplined in connection to
this incident?
A.
No.
Q.
On no paperwork you reviewed at any point in time as a sergeant?
A.
No. . . .
(P-APP 897).
However, Patrick argues that Sgt. Jackson’s failure to conduct even a single supervisory
check on the cell searches raises a genuine issue of material fact. Specifically, she argues that this
failure generates the inference that Sgt. Jackson must have known his failure would result in
deficient performance by subordinates. Thus, Patrick concludes, Sgt. Jackson had the subjective
awareness necessary to show deliberate indifference to Rodgers’s safety.
But Patrick’s argument does not explain how Sgt. Jackson’s failure to conduct random
checks on his subordinates’ searches proves that he had subjective awareness that this failure led
to pencil-whipping. Patrick did not present any summary judgment evidence from correctional
officers working under Sgt. Jackson or falsifying such logs that indicate he was aware of pencilwhipping or that he condoned this behavior. Additionally, Sgt. Jackson testified that he conducted
daily observation of the inmates housed on his pod assignments and would “attempt to make
contact with offenders” in their cells “if they got his attention.” (TDCJ-APP 1437).
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The Court concludes that Patrick has failed to raise a genuine issue of material fact that
Sgt. Jackson had a subjective awareness of pencil-whipping. Hence, Patrick has failed to meet her
summary judgment burden on the third part of the Goodman test as it pertains to Sgt. Jackson.
d. Sgt. Mogilnicki
Sgt. Mogilnicki testified that he was familiar with the concept of pencil-whipping in a
general sense but that he only became aware that such practices were happening at the Clements
Unit after Rodgers was found unresponsive. (P-APP 874, 1006). However, he admitted that a
review of some of the cell search logs — which he did not perform until after Rodgers was
deceased and the investigation had begun — indicated that such logs were pencil-whipped. Id. Sgt.
Mogilnicki denied having any knowledge that his subordinates engaged in these practices and
denied promoting such practices based on understaffing. Id. Sgt. Mogilnicki testified that after
Rodgers was found unresponsive and he did a closer review of the cell search logs, he realized that
correctional officers were failing to find contraband with too great a frequency to reflect that an
actual search was conducted. Id. Nevertheless, he did not realize searches were not performed
under his supervision prior to Rodgers’s death. Id.
Most relevant to the Court is Sgt. Mogilnicki’s testimony that he knew “some people did
it [that is, pencil-whipping], and some people didn’t.” Id. However, Sgt. Mogilnicki also stated
that sergeants warned correctional officers against doing it, and he had knowledge of a prior
occasion where an individual caught pencil-whipping was disciplined. Id. Thus, he did not believe
that the behavior was condoned by sergeants or management. Id. He discussed his knowledge in
the following testimony:
A.
Not necessarily a problem. I mean, you knew that some people did it, and
some people didn't.
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Q.
(BY MS. LANE) And there were warnings from
sergeants not to do it?
A.
Yes.
Q.
Were there any trainings related to --
A.
I mean --
Q.
-- deterring pencil whipping?
A.
Just trying to train you how to do your stuff properly.
Q.
Do you remember, at any point in your tenure with TDCJ, hearing about
someone getting disciplined for pencil whipping aside from this incident?
A.
Yes, ma'am.
Q.
And when was that?
A.
I don't know exact dates or years, but people have been caught pencil
whipping counts or cell searches before and have been disciplinaried [sic]
for it.
Q.
Would you consider that frequent discipline?
A.
Like it happens often?
Q.
Yes.
A.
No, ma’am.
Q.
How often do you think it’s happened that you can remember…?
A.
Maybe once a year, twice a year.
Id. It is important to note that Sgt. Mogilnicki believed that management was “correcting” and not
simply ignoring incidents of pencil-whipping behavior on the unit. Further, Officer Taylor stated
that Sgt. Mogilnicki would view the cells of inmates and “nitpick about things wrong with the
cell.” (P-APP 991). Although Officer Taylor expressed this as a complaint that caused more work
for him, it still constitutes a level of supervision over the cell searches and correctional officers.
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Id. Hence, Sgt. Mogilnicki did not merely hope that his own subordinates had refrained from
pencil-whipping once he became aware of its occurrence among correctional officers. Rather, he
believed that the appropriate response was a disciplinary case against the responsible party.
Patrick does not provide additional summary judgment evidence indicating that Sgt.
Mogilnicki failed to adequately respond to any known incident of pencil-whipping. If Sgt.
Mogilnicki’s supervision of correctional officers when performing cell searches were his only
conduct related to Rodgers’s death, then Patrick would indeed fail to raise a genuine issue of
material fact that Sgt. Mogilnicki had the requisite subjective awareness to meet the third part of
the Goodman test.
However, the Court must examine a separate interaction that Sgt. Mogilnicki is known to
have had with a correctional officer — namely Officer Taylor. In an interview with OIG as part of
the investigation, Officer Taylor stated that he did not report an injury he observed on Rodgers’s
cheek during his shift on January 9–10, 2016. (P-APP 842–843). His supervisor at the time to
whom he was supposed to report the injury was Sgt. Mogilnicki. Id. Officer Taylor indicated that
he was aware of his duty to report any injuries to a supervisor but that his sergeant — Sgt.
Mogilnicki — did not respond to reports of threats of fighting in the past. Id. In fact, he “never
came down there.” Id. Officer Taylor in fact stated, “I’ve notified him of the situation and he has
not come down there.” Id. During his deposition concerning his reasons for failing to report
Rodgers’s injury, Officer Taylor further testified that his sergeant would “just let it [the threat]
escalate to a fight” before he did anything. (P-APP 996–1002).
These allegations are supported by evidence that Officer Taylor was the assigned C-wing
rover on this date. (TDCJ-APP 1280). This means that he was responsible for any supervision of
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cell C-210 and, by extension, for the interactions with inmates on the C block. The evidence also
confirms that Sgt. Mogilnicki was on duty as his supervisor. (TDCJ-APP 1279).
There is no evidence in the record cited by Patrick or observed by the Court indicating
what occurred in the previous incident mentioned by Officer Taylor, where he claims that Sgt.
Mogilnicki ignored his report of a threat of violence concerning other inmates only a month before
observing a bruise on Rodgers. Nevertheless, Sgt. Mogilnicki acknowledged that the prisoners on
ECB were “close custody” prisoners who had a history of disciplinary problems and were more
prone to fighting than prisoners in other cell blocks. (P-APP 869).
By “training” Officer Taylor not to report violence, Sgt. Mogilnicki arguably disregarded
Rodgers’s safety. 16 Consequently, the Court finds that, taken in the light most favorable to the
plaintiff, the evidence raises a genuine issue of material fact that Sgt. Mogilnicki acted with
deliberate indifference to Rodger’s safety. Specifically, Sgt. Mogilnicki “trained” Officer Taylor
in a way that ostensibly caused Officer Taylor not to report violence. Hence, Patrick has met her
summary judgment burden on the third part of the Goodman test as it pertains to Sgt. Mogilnicki.
e. Sgt. Burkholder
Sgt. Burkholder testified that he was familiar with the concept of pencil-whipping and had
heard “rumors” that it occurred on the Clements Unit. (P-APP 316). Sgt. Burkholder indicated that
he did not believe and had no reason to suspect that any of his subordinates were failing to complete
required safety checks or counts. Id. However, Sgt. Burkholder stated that he was told to engage
in pencil-whipping when he himself was a correctional officer — even though he refrained from
doing it — and that other correctional officers engaged in this behavior. Id. Sgt. Burkholder
The Court notes that Officer Taylor testified that in this instance in January 2016, he did not believe Rodgers and
Greggs were about to fight or that Rodgers faced a threat. (TDCJ-APP 1402). Nevertheless, Officer Taylor did indicate
that this pattern of response to threats of violence by Sgt. Moglinicki in the past was the reason that Taylor did not
report his observations. Id.
16
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testified that “you hear, but if you don’t see it, then – then it’s just hearsay.” Id. Specifically, Sgt.
Burkholder testified to the following:
Q.
Okay. So are you aware -- were you, at any point prior to this investigation,
aware that that was going on at the Clements Unit?
A.
Aware that people were pencil whipping?
Q.
Yes.
A.
Yes. I would say yes, I was.
Q.
Were you aware that your subordinate officers were pencil whipping?
A.
No.
Q.
But others underneath, different sergeants, were pencil whipping?
A.
You could say that.
Q.
So why did you believe yours weren’t, but others were?
A.
I would hope that my -- the COs that worked under us would have enough
integrity to do their job correctly.
Id. Despite his “hope” that his subordinates were not engaging in pencil-whipping, Sgt. Burkholder
knew that pencil-whipping occurred at the Clements Unit and failed to take specific steps to
counteract this behavior by his subordinates. This is especially clear from his testimony that he
“was not checking” to ensure his subordinates performed their jobs correctly. Id. Additionally, his
only explanation for why he believed that his subordinates were not engaged in pencil-whipping
was his hope that they “had enough integrity to do their jobs.” Id. Unlike Sgt. Mogilnicki, he had
no belief or knowledge that management was correcting the pencil-whipping incidents on the unit.
A mere hope such as this is insufficient to rebut a finding of deliberate indifference. After all, if
Sgt. Burkholder knew correctional officers in the Clements Unit — officers that he knew would,
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at one point or another, come under his supervision — were pencil-whipping, then merely hoping
they would suddenly stop once under his supervision is equivalent to disregarding their behavior.
The Court concludes that Patrick has raised a genuine issue of material fact that Sgt.
Burkholder had a subjective awareness of pencil-whipping. Hence, Patrick has met her summary
judgment burden on the third part of the Goodman test as it pertains to Sgt. Burkholder.
4. The Sergeants Are Not Liable for Deliberate Indifference to Rodgers’s Health
The Court now turns to Patrick’s claim against the sergeants for deliberate indifference to
Rodgers’s health. It finds that she has failed to raise a genuine issue of material fact that the
sergeants knew of and disregarded Rodgers’s medical needs.
As stated in Section I(B)(2), there are two approaches for examining claims for deliberate
indifference to health. Regardless of which approach is used, Patrick would need to show that the
sergeants acted with deliberate indifference to Rodgers. Specifically, she would need to show that
the sergeants knew of and disregarded some serious medical need of Rodgers or a substantial risk
of serious harm to his health.
The sergeants correctly point out that there is no evidence in the record showing that they
were subjectively aware of any of Rodgers’s serious medical needs, let alone that they consciously
disregarded them. Examining the allegations and evidence against each Defendant separately as
required, there is no evidence that any of the sergeants at any time possessed actual subjective
knowledge of Rodgers’s physical or mental health conditions or that any of them did anything to
consciously disregard a need for care for those conditions. For example, no evidence in the record
indicates a subjective awareness of Rodgers’s weight loss by correctional officers or sergeants
before Rodgers was found unresponsive on January 18, 2016. Indeed, when Sgt. Anderson
discovered Rodgers on that date, he immediately sought assistance for him.
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Further, there is no evidence that Rodgers had any condition so obvious to the sergeants
that it would constitute a serious medical need. To the contrary, nothing in the record indicates that
Rodgers had made any complaints about his stomach hurting, his clothes not fitting, or being
hungry. The record is also absent of any evidence that Rodgers was suffering from a mental health
crisis obvious to anyone who observed him. There is also nothing in the record indicating that he
made any efforts to seek medical attention for any issues related to injuries as a result of the
assaults. Finally, there is nothing in the record indicating that he, at the time, reported
hallucinations, hearing voices, a desire to injure himself or others, or any other medical need.
Patrick argues that the sergeants have not demonstrated that they acted in good faith and
attempts to use their disciplinary records to demonstrate their complicity in Rodgers’s death.
Patrick contends their failure to follow TDCJ policy on the dates preceding Rodgers’s death
provides evidence that they failed to properly observe Rodgers and failed to render appropriate
medical attention. She also argues that Rodgers’s mental health condition and past evidence of
fighting with cellmates are evidence of deliberate indifference to his needs.
The Court can certainly conclude from the evidence presented that the sergeants seem to
have violated TDCJ policy and that they failed to perform their assigned duties in several ways on
the dates preceding Rodgers’s death. As stated earlier, however, for the purposes of Patrick’s
claim, the law is clear that the burden is on Patrick to demonstrate that each sergeant acted with
deliberate indifference. Viewing the evidence in the light most favorable to Patrick, at most she
has shown that the sergeants acted with a degree of negligence in failing to follow TDCJ policy
and properly perform their duties. But negligence is not deliberate indifference.
Further, even under the assumption that the sergeants should have somehow noticed
Rodgers’s conditions, deliberate indifference requires actual knowledge of the risk to Rodgers’s
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health. Their failure to alleviate a risk that they should have perceived but did not is insufficient to
demonstrate deliberate indifference.
Having established that the sergeants lacked subjective awareness that Rodgers had a
serious medical need, the Court also concludes that they lacked subjective awareness of a
substantial risk of serious harm to his health. They were aware of no serious medical need posing
such a risk, and nothing else in the record indicates that they were aware of any other similar risk.
The Court concludes that sergeants did not act with deliberate indifference to Rodgers’s
health. Consequently, the Court does not need to consider the objective element under any
approach to claims for deliberate indifference to health. To resolve Patrick’s claim under any
approach, it is sufficient to find that the sergeants did not act with deliberate indifference to
Rodgers’s health. Hence, Patrick has failed to establish her claim for deliberate indifference to
health against the sergeants.
*
*
*
Therefore, the Court finds that Sgts. Anderson, Lucero, and Jackson are entitled to qualified
immunity on Patrick’s claims of deliberate indifference to Rodgers’s safety. Accordingly, their
motions for summary judgment on this claim are GRANTED, and this claim against them is
DISMISSED with prejudice. The Court finds that Sgts. Mogilnicki and Burkholder are not entitled
to qualified immunity on Patrick’s claims of deliberate indifference to Rodgers’s safety, and their
motions for summary judgment on this claim are DENIED. Finally, the Court finds that all of the
sergeants are entitled to qualified immunity on Patrick’s claim of deliberate indifference to
Rodgers’s health. Consequently, their motions for summary judgment on this claim are
GRANTED, and this claim against them is DISMISSED with prejudice.
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IV
In this section, the Court examines the summary judgment motion made by Defendant
Warden Martin.
A. Deliberate Indifference and Failure to Train and Supervise
Warden Martin moves for summary judgment on Patrick’s claims for deliberate
indifference against him in his official capacity. Warden Martin makes three arguments for this
motion. First, he argues that he is entitled to Eleventh Amendment immunity in his official
capacity. Second and relatedly, he argues that he is not a person under 42 U.S.C. § 1983 in his
official capacity. Third, he argues that Patrick is not entitled to declaratory relief because the
declaration requested is not prospective in nature and because there is not an “ongoing” violation
of constitutional rights by Warden Martin in his official capacity. The Court considers these three
arguments in order, grouping the first and second arguments together.
1. Entitlement to Eleventh Amendment Immunity in Official Capacity Cases
Section 1983 does not allow a plaintiff to seek a remedy against a state for alleged
deprivations of civil liberties since “[t]he Eleventh Amendment bars such suits unless the State has
waived its immunity.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (citing Welch v.
Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–73 (1987)). As such, states, officials
of the state acting in their official capacities, and government entities that are considered “arms of
the State” are not “persons” under Section 1983. Will, 491 U.S. at 70–71. Thus, they cannot be
sued in federal court for violations under Section 1983 without the state’s express consent via
waiver of sovereign immunity. Id. at 67. In deciding whether a state has waived sovereign
immunity, courts can find waiver “only where stated ‘by the most express language or by such
overwhelming implications from the text as (will) leave no room for any other reasonable
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construction.’” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling
Co., 213 U.S. 151, 171 (1909)). Thus, this Court now looks to state law to determine if Texas has
waived sovereign immunity for Section 1983 claims.
In Texas, it is well established that “sovereign immunity, unless waived, protects the State
of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue
the State.” Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). 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).
Here, Warden Martin is correct that he is entitled to immunity under the Eleventh
Amendment to the extent that Patrick has sued him in his official capacity for monetary damages. 17
As such, to the extent Patrick requests such damages, her claim against Martin is barred. However,
in her response to Martin’s summary judgment motion, Patrick clearly requests only “declaratory
relief” against Warden Martin in his official capacity for violations of the Eighth Amendment.
(ECF No. 361-4 at 8). Although declaratory relief is not specifically sought by the complaint, the
Court finds Patrick’s request is appropriately considered by her seeking “such other and further
relief.” Id. at ¶ 2. Patrick further argues that as such she is entitled to pursue her claims under the
doctrine of Ex Parte Young, 209 U.S. 123 (1908).
The Supreme Court has recognized that certain types of relief may be pursued against state
actors in their official capacities absent a request for monetary damages. Such relief includes
declaratory and injunctive relief. Both parties appeal to Verizon Maryland, Inc. v. Public Serv.
Com’n of Maryland, 535 U.S. 635 (2002) to support this proposition. However, they do not agree
Patrick makes clear that Warden Martin “is sued in his official capacity under Section 1983. He is not sued in his
individual capacity under Section 1983.” (ECF No. 361-4 at 7).
17
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on how the case applies to the issue — that is, on whether declaratory relief is appropriate. The
Court finds Warden Martin’s interpretation of the case to be correct for the reasons that follow.
2. Declaratory Relief
The Supreme Court has clearly stated that to pursue claims against a state, or state actors
in their official capacities, the relief sought must be prospective and the violation alleged must be
ongoing. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996) (“[W]e often have found
federal jurisdiction over a suit against a state official when that suit seeks only prospective
injunctive relief in order to ‘end a continuing violation of federal law.’” (emphasis added) (citing
Green v. Mansour, 474 U.S. 64, 68 (1985)). Consequently, where monetary relief is not available,
declaratory relief is, for the most part, only available where injunctive relief would also be
available — in situations where it is necessary to address prospective harm.
Accordingly, injunctive relief and declaratory relief will likely be barred in cases involving
the death of an inmate unless such relief is necessary to address prospective violations of rights by
the defendant. “Remedies designed to end a continuing violation of federal law are necessary to
vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence
interests are insufficient to overcome the dictates of the Eleventh Amendment.” Green, 474 U.S.
at 68 (emphasis added) (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102
(1984); Milliken v. Bradley, 433 U.S. 267 (1977)). The Supreme Court in Green also discussed the
propriety of declaratory relief by focusing on the “continuing violation” as opposed to a dispute
about “past actions,” indicating that only relief designed to prevent future violations is appropriate.
See Green, 474 U.S. at 72–73 (holding that a declaratory judgment is not available when the result
would be a partial “end run” around the decision in Edelman v. Jordan, 415 U.S. 651 (1974),
which prohibits such relief to punish past actions).
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Here, Patrick has not alleged facts nor presented any summary judgment evidence to
establish an ongoing violation by the State of Texas or Warden Martin warranting declaratory
relief as recognized by Ex Parte Young. To the extent Patrick is seeking prison reform for other
inmates, it is clear that she “lack[s] standing to assert claims for injunctive or declaratory relief.”
See Walker v. Livingston, No. 09–20508, 381 Fed. Appx. 477, 478–79 (5th Cir. 2010) (citing City
of Los Angeles v. Lyons, 461 U.S. 95 (1983)). Further, she has neither alleged facts nor presented
any summary judgment evidence to establish that the Court can consider or award the declaratory
relief she seeks: that “Defendant Martin, in his official capacity, violated Alton Rodgers’s Eight
[sic] Amendment right to be free of cruel and unusual punishment through deliberate indifference
to his medical and security needs.” (ECF No. 361-4 at 8). In fact, such a declaration as to past
conduct is precisely the sort of “end run” around the Supreme Court’s decisions in Green and
Edelman that has been rejected.
Patrick’s briefing — including both the Response to Warden Martin’s Motion for Summary
Judgment and the corresponding Sur-Reply — provides no support for the ongoing and prospective
nature of the alleged constitutional violations by Warden Martin in his official capacity. See (ECF
Nos. 361-4 and 428-1). Instead, Patrick merely claims that her request for declaratory relief falls
outside of Eleventh Amendment immunity given the reasoning of the Supreme Court in Verizon
Maryland. This Court notes the specific language in Verizon Maryland relied upon by Patrick,
though not specifically cited by her:
As for Verizon's prayer for declaratory relief, even though Verizon seeks a
declaration of the past, as well as the future, ineffectiveness of the Commission’s
action, so that the private parties’ past financial liability may be affected, no past
liability of the State, or of any of its commissioners, is at issue.
Verizon Maryland, Inc., 535 U.S. at 636 (citing Edelman v. Jordan, 415 U.S. 651, 668 (1974)).
Unlike Verizon Maryland, the claims at issue here involve the past liability of the State. Thus, the
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language quoted above cannot support an inference that her request for declaratory relief is not
subject to the restrictions of Eleventh Amendment immunity.
The Court therefore finds that Patrick’s claims for declaratory relief are subject to dismissal
with prejudice on these grounds.
B. Access-To-The-Courts
Warden Martin also moves for summary judgment on Patrick’s access-to-the-courts claim
against him in his individual capacity. Warden Martin makes two arguments for this motion. First,
Patrick’s access-to-the-courts claim fails because there is no evidence that he violated Rodgers’s
constitutional right of access-to-the-courts, which means that he is entitled to qualified immunity.
Second, Patrick’s right of access-to-the-courts claim was not clearly established in January 2016,
which also means that Warden Martin is entitled to qualified immunity. The Court considers these
two arguments using the two-part qualified immunity test outlined in Section I(A) of this
Memorandum Opinion.
1. Evidence of Warden Martin’s Involvement in any Destruction of Evidence
Patrick argues that Warden Martin violated Rodgers’s right of access-to-the-courts through
his involvement in the destruction of evidence that interfered with the ability to file or pursue a
claim. Specifically, she alleges that Warden Martin ordered Rodgers’s cell to be cleaned prior to
inspection by the OIG, had some level of involvement in the destruction of video evidence on the
ECB pod during the ongoing investigation, and failed to preserve the mattress from Rodgers’s cell
during the investigation. Patrick’s allegations are supported only by the testimony from SSI Hefner
in the summary judgment evidence.
The Court rejects Patrick’s argument and finds that she has not raised a genuine issue of
material fact that Warden Martin was involved in the destruction of evidence as alleged.
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Specifically, the Court finds Hefner’s testimony to be unreliable and unsupported by the objective
summary judgment evidence for the reasons discussed below.
2. OIG’s Arrival and Inspection on January 18, 2016 and the Serious Incident
Review by TDCJ at Huntsville
After seeing Rodgers unresponsive in his cell on January 18, 2016, Sgt. Anderson secured
Rodgers’s cellmate Greggs and summoned assistance for Rodgers. (TDCJ-APP 764). At 7:23 a.m.,
the cell door to C-210 opened. (P-APP 713). The cell was secured by correctional officers, and
only TDCJ staff entered the cell to provide assistance to Rodgers and transport him for medical
care that morning. The cell remained closed and was observed by one or more of CO3 Padilla,
CO3 Chapman, and Sgt. Anderson from 7:42 a.m. until the arrival of OIG at 9:14 a.m. (P-APP
713, TDCJ-APP 770, TDCJ-APP 34). OIG Kendall documented the evidence observed during his
investigation that morning, taking photographs of the evidence and the cell. (TDCJ-APP 770).
As outlined in the facts of this case, the cell door was opened several times in the coming
days. However, Patrick’s allegation regarding the loss of potential evidence stems from alleged
tampering with items prior to OIG Kendall’s arrival at 9:14 a.m.
3. Timeline: SSI Jason Hefner’s Credibility and the Objective Evidence
Patrick acknowledges in her Sur-Reply to Warden Martin’s Motion for Summary Judgment
that “the photographs OIG took of Alton’s cell that morning, sometime after 9:14 a.m. (according
to OIG Investigator Kendall’s account), are entirely inconsistent with Jason Hefner’s observations
of the cell.” (ECF No. 428-1 at 8) (emphasis added). The Court agrees. However, the Court
disagrees that this bolsters SSI Hefner’s account of the cell’s cleaning on January 18.
SSI Hefner provided an initial affidavit in support of his recollections of cleaning the cell,
which contained the following excerpts:
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On the day Alton Rodgers was taken from the ECB unit, January 18, 2016, I was
assigned as usual to work in ECB . . . . That morning when we got to ECB it was
obvious that there was some kind of big thing going on. It was a rushed day. From
the moment that the officer came to get us, we were rushed. When we got there, we
knew something had gone wrong.
Warden Martin, Warden Nash, a female Captain, and maybe 2 or 3 OIG officers
were already there. They were saying that Huntsville was on the way. I heard them
saying that Huntsville was going to be there at 8 am. I saw a camera set up on a
tripod . . . .
There was an OIG officer sitting on other side of the desk from another officer.
One of the OIG officers is Fernandez (he was formerly a Potter County
Sheriff).
They were interviewing an officer in the multi-purpose office when I first got there,
but I am not sure which officer…
Warden Martin was red in the face, and he was stomping around and cursing. All
of the officers were on edge and nervous…
I heard Warden Martin give Lt. Thompson a direct order to get someone to clean
that cell.
Lt. Thompson then gave me the direct order to clean the cell…
I noticed the cell door was secured open. The first thing I saw was the trash.
Styrofoam cups were on table and shelf. Food was on the floor. The stainless steel
wall where the toilet and sink and shower were was stained with what appeared to
be urine, and there was stuff in the toilet (feces, waste) and the toilet seat was
covered in filth. I could not tell what it was, but it was coated in filth. There were
pieces of paper—bits and pieces of paper—scattered around the cell. I noticed a
large circle stain on the floor around the drain with slimy residue, where water must
have been left standing. It appeared to me that the backed up drainage had just
been fixed.
Normally there are two mattresses in a cell. In this cell the top bunk mattress was
present but the bottom bunk mattress was not. The steel frame bunk has a two-inch
lip to keep mattresses from slipping off, and there was some kind of dried fluid on
the steel part of the frame on the bottom bunk where the mattress would go but
the mattress was not there…
(P-APP 902–903) (emphasis added).
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First, the Court notes the inconsistencies not only between SSI Hefner’s affidavit and his
deposition testimony, but also between the affidavit and all of the objective evidence in this case. 18
The inconsistencies immediately apparent to the Court are:
Rodgers’s bed was the top bunk, but SSI Hefner stated that the bottom bunk
mattress was missing and had suspicious material. (TDCJ-APP 412, 415).
No OIG personnel were on the scene the day of the incident until after 9:00
a.m. (TDCJ-APP 34). SSI Hefner knew one of the OIG inspectors by name
and claimed that OIG was already conducting interviews when he arrived.
This contradicts the entire OIG investigative report.
SSI Hefner stated that the backup drainage had apparently just been fixed
in the cell he cleaned but also stated in his deposition testimony that it would
take a very long time to arrange plumbing to be fixed in ECB cells.
Furthermore, the extremely narrow window between the time that Rodgers
was extracted and the time that SSI Hefner claimed that he cleaned the cell
would not allow for such a fix.
SSI Hefner claimed that he heard people saying “Huntsville” would arrive
by 8:00 a.m. on the morning he cleaned the cell. This hearsay evidence is
not consistent with the timeline of events on January 18. After discovering
Rodgers unresponsive at 7:20 a.m., Duty Warden Darrell Nash was notified
at 7:30 a.m, OIG Investigator Tim Burge was notified at approximately 7:35
a.m., Warden Barry Martin was notified at 8:30 a.m., Ginger Thompson
with EAC was notified at 10:20 a.m. (TDCJ-APP 140). OIG Investigator
Burge notified OIG Kendall after his notification. The Court is not
persuaded by Patrick’s argument that SSI Hefner and TDCJ personnel
confused OIG and Huntsville. This is because OIG was clearly already on
the scene the day he cleaned the cell, according to his own statements and
familiarity with those individuals. If “Huntsville” was set to arrive at 8:00
a.m. on the day Hefner cleaned the cell, then a serious inconsistency arises:
Warden Martin had not yet been notified, OIG had not yet arrived on the
scene, and Huntsville was not even notified by that time on January 18. It
appears from all evidence that Huntsville arrived to conduct the Serious
Incident Review on January 22 and not before. The Court also takes judicial
notice that the distance between Huntsville and the Clements Unit is
approximately 530 miles, or over nine hours of driving time.
Such inconsistencies remain even excluding Warden Martin’s testimony that he was not present at the scene on the
morning of January 18 until after OIG had arrived and photographed the scene.
18
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SSI Hefner admitted in deposition testimony that he was uncertain which
day he cleaned the cell and was not sure it was the day Rodgers was
extracted from the cell. (P-APP 916).
SSI Hefner’s account of cleaning the cell on January 18 contradicts the
timeline above indicated by Sgt. Anderson, CO3 Padilla and CO3
Chapman. These individuals took possession of the cell immediately
following Rodgers’s extraction.
Patrick is correct that if SSI Hefner did not clean the cell the morning of
January 18, his entire account of the state of the cell is unreliable due to the
photographs taken by OIG on January 18 between 9:15 a.m. and 9:30 a.m.
During his deposition testimony, SSI Hefner indicated that no commissary
items or personal items of the inmate were in the cell when he cleaned it.
(P-APP 920). However, the pictures taken by OIG Kendall show
commissary and personal items of the inmates in the cell. (TDCJ-APP 271–
275). This contradicts not only SSI Hefner’s testimony regarding the date
that he cleaned the cell, but also his testimony regarding the state of the cell
when he cleaned it.
The Court has viewed the time-stamped and dated photographs taken by OIG Kendall on
January 18, 2016 between 9:15 and 9:30 a.m. (TDCJ-APP 271–275). The photographs show at
least some amount of bedding on each bunk, personal items and commissary items neatly arranged,
no filth in the sink or shower area, no filth on the toilet, no evidence of standing water, and no
evidence of blood or bodily fluids readily apparent. Id. Thus, the Court finds that SSI Hefner’s
account of the condition of the cell is not consistent with the objective evidence before the Court.
The Court thus discounts SSI Hefner’s testimony. Moreover, because no reasonable jury could
accept SSI Hefner’s account, the Court also finds that his testimony does not raise a genuine issue
of material fact.
4. Timeline: Notification of Warden Martin on January 18, 2016
Patrick argues that on the morning of January 18, Warden Martin was present on the unit
prior to 7:42 a.m., when the cell door was closed after Rodgers was extracted from his cell. Patrick
relies on the statements of SSI Hefner to establish that Warden Martin was present at the unit
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earlier than the time that he testified to. For the reasons discussed in Section IV(B)(3), the Court
finds that SSI Hefner’s testimony regarding the date that he cleaned the cell and observed Warden
Martin at the unit is not consistent with objective evidence. Consequently, it further finds that no
reasonable jury could find that he observed Warden Martin on the morning of January 18. Patrick
has not presented any other summary judgment evidence that Warden Martin was present during
the 20-minute time frame that Rodgers’s cell door was open during the extraction or even prior to
the arrival of OIG. Furthermore, Duty Warden Nash’s indication of the time that he notified
Warden Martin corresponds with Warden Martin’s testimony. Warden Martin testified that he was
not present at the Clements Unit when he received the phone call from Duty Warden Nash on the
morning of January 18. Warden Martin estimated he arrived at the Clements Unit at around 10:00
a.m. that morning.
Hence, there is no sufficient summary judgment evidence that Warden Martin was present
at the scene when Rodgers was extracted from his cell prior to the arrival of OIG at 9:14 a.m. This
means that Patrick has failed to raise a genuine issue of material fact that Warden Martin violated
Rodgers’s right of access-to-the-courts through the destruction of evidence.
As stated in Section I(A), there is a two-part test for overcoming qualified immunity. Since
Patrick has failed to show that a violation of a federal right has occurred, the first part of that test
has not been met. Thus, the Court does not need to examine the second part of the test — the
question of whether the right was clearly established at the time of the alleged violation.
Consequently, the Court does not need to examine Warden Martin’s second argument regarding
Patrick’s access-to-the-courts claim. Instead, the Court concludes that Warden Martin did not
violate any federal rights of Rodgers, which suffices to determine whether Warden Martin is
entitled to qualified immunity.
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*
*
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*
Therefore, this Court finds that Warden Martin is entitled to Eleventh Amendment
immunity on Patrick’s claim for deliberate indifference to Rodgers’s safety and health and
qualified immunity on her access-to-the-courts claim. Consequently, Warden Martin’s motion for
summary judgment on both claims is GRANTED, and Patrick’s claim against Warden Martin for
deliberate indifference under the Eighth Amendment is DISMISSED with prejudice.
V
In this section, the Court examines the summary judgment motion made by Defendant
TDCJ. Specifically, TDCJ moves for summary judgment on Patrick’s ADA and RA claims against
it. TDCJ makes two arguments for this motion. First, it argues that Patrick’s ADA claim fails
because there is no evidence that TDCJ intentionally discriminated against Rodgers by failing to
accommodate him. Second, it argues that Patrick’s RA claim fails for the same reasons. The Court
grants TDCJ’s motion for summary judgment for the reasons that follow.
A. Title II of the ADA and Section 504 of the RA
Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Windham v. Harris Cty., Texas, 875 F.3d 229, 234 (5th Cir. 2017) (alteration in original) (quoting
42 U.S.C. § 12132). Similarly, “Section 504 of the [RA] provides that ‘[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance[.]’” Doe v. Columbia-
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Brazoria Indep. Sch. Dist. by & through Bd. of Trs., 855 F.3d 681, 690 (5th Cir. 2017) (alterations
in original) (quoting 29 U.S.C. § 794(a)).
With regard to public entities, Congress intended that Title II “work in the same manner as
Section 504,” and jurisprudence interpreting either statute is generally applicable to both. Hainze
v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (citations omitted).
To make out a prima facie case under Title II, a plaintiff must show “(1) that he is
a qualified individual within the meaning of the ADA; (2) that he is being excluded
from participation in, or being denied benefits of, services, programs, or activities
for which the public entity is responsible, or is otherwise being discriminated
against by the public entity; and (3) that such exclusion, denial of benefits, or
discrimination is by reason of his disability.”
Windham, 875 F.3d at 235 (quoting Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72
(5th Cir. 2004)). Likewise:
[t]he prima facie case of discrimination under the [RA] is operationally identical to
the test under the ADA, requiring a plaintiff to allege: (1) the existence of a program
or activity within the state which receives federal financial assistance; (2) the
plaintiff is an intended beneficiary of the federal assistance; and (3) the plaintiff is
a qualified handicapped person, who solely by the reason of her handicap has been
excluded from participation in, been denied benefits from, or otherwise has been
subject to discrimination under such program or activity.
Melton, 391 F.3d at 676 n.8 (emphasis omitted). 19 Because the legal standards and the
jurisprudence of the ADA and RA are effectively the same, this Court’s analysis of the ADA
should be assumed to extend to the RA unless otherwise stated.
Title II of the ADA and Section 504 of the RA differ on the third element of a prima facie case of disability
discrimination — causation. See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (“The
only material difference between [Title II and Section 504] lies in their respective causation requirements.”). The
proper causation standard under the RA is “whether the discrimination took place ‘solely because of’ the disability.”
Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 505 (5th Cir. 2002); see 29 U.S.C. § 794(a). In contrast, “the ADA
does not require ‘sole causation.’ The proper causation standard under the ADA is a ‘motivating factor’ test.”
Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008); see 42 U.S.C. § 12132. Under the “motivating factor” test,
discrimination “must actually play a role in the [public entity’s] decision making process and have a determinative
influence on the outcome.” Pinkerton, 529 F.3d at 519 (quoting Soledad, 304 F.3d at 503–04). Because Patrick fails
to satisfy the less stringent “motivating factor” requirement, she necessarily fails the more stringent “sole factor” ADA
requirement — in addition to the other reasons her ADA claim fails. See infra Section V(B).
19
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As stated above, the second element of a prima facie case under the ADA is being excluded
from participation in or denied the benefits of programs provided by the public entity (or otherwise
being discriminated against by the entity). “State prisons fall squarely within the [ADA] definition
of ‘public entity,’ which includes ‘any department, agency, . . . or other instrumentality of a State
or States or local government.’” Yeskey, 524 U.S. at 210 (quoting 42 U.S.C. § 12131(1)(B)).
Indeed, the fundamental “program” or benefit offered by prisons includes adequate medical care.
See United States v. Georgia, 546 U.S. 151, 157 (2006).
The third element of a prima facie case under the ADA is that the exclusion by, denial of
benefits from, or discrimination by the public entity in question is by reason of the plaintiff’s
disability. A plaintiff can satisfy this element by advancing a theory of “failure to accommodate.” See
Windham, 875 F.3d at 235 (noting that the plaintiff’s attempt to satisfy the third element of claim
under Title II of the ADA was a theory of failure to accommodate). To succeed on a failure-toaccommodate theory, a plaintiff must “prove: (1) he is a qualified individual with a disability; (2) the
disability and its consequential limitations were known by the [public] entity; and (3) the entity failed
to make reasonable accommodations [for that disability].” Id. at 236 n.8 (quoting Ball v. LeBlanc,
792 F.3d 584, 596 n.9 (5th Cir. 2015)). “Mere knowledge of the disability is not enough” to show that
the covered entity knew of the disability and its consequential limitations. Id. at 236. The plaintiff
must “specifically identify the disability and resulting limitations and request an accommodation in
‘direct and specific’ terms.” Id. at 237 (emphasis added) (citations omitted).
If the plaintiff does not request a reasonable accommodation, “he can prevail only by
showing that ‘the disability, resulting limitation, and necessary reasonable accommodation’ were
‘open, obvious, and apparent’ to the entity’s relevant agents.” Id. (emphasis added) (quoting Taylor
v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996)). More specifically, the “open,
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obvious, and apparent” standard requires the plaintiff to show that the entity’s agents “knew or
should have known” of the plaintiff’s disability, resulting limitation, and necessary reasonable
accommodation. Id. at 237–238 (suggesting that evidence that the defendant’s agents knew or
should have known of the plaintiff’s disability, resulting limitation, and necessary reasonable
accommodation would have satisfied the “open, obvious, and apparent” standard). The “open,
obvious, and apparent” standard is a “narrow exception” to “the generally applicable rule that ‘[i]f
the [plaintiff] fails to request an accommodation, the [public entity] cannot be held liable for failing
to provide one.’” Id. at 239 (alterations in original) (quoting Taylor, 93 F.3d at 165).20
Well-understood and outwardly visible disabilities such as blindness, deafness, or being
wheelchair-bound are cases where the disability, resulting limitation, and reasonable
accommodation are open, obvious, and apparent. See Windham, 875 F.3d at 238 (stating that “wellunderstood and outwardly visible disabilities like, say, blindness, deafness, or being wheelchairbound” “would . . . have been ‘open, obvious, and apparent’ even if [the plaintiff] had never
attempted to explain them”).
B. TDCJ Did Not Fail to Reasonably Accommodate Rodgers’s Disability
Patrick argues that TDCJ violated Title II of the ADA and Section 504 of the RA by failing
to provide him reasonable accommodations for his known physical and mental disabilities.
Specifically, she claims that TDCJ intentionally discriminated against Rodgers by failing to
accommodate his known mental disability with a special housing assignment or a closely
The Fifth Circuit has not yet decided whether an agent’s requisite knowledge is viewed from an objective or
subjective perspective. See Windham, 875 F.3d at 237 (“The parties dispute what type of knowledge is required . . . .
Although our caselaw speaks generally in terms of the entity’s subjective knowledge, we do not appear to have
confronted [the question of what type of knowledge is required]. Nor must we do so now.” (footnotes omitted)).
20
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monitored shared cell and his known physical disabilities with medical treatment. See, e.g., (ECF
No. 282) at ¶¶ 37, 90, 93–95.
In analyzing Patrick’s claims, the Court will assume for the sake of argument that Patrick
has established a genuine issue of material fact as to the first element of an ADA claim: that
Rodgers had a disability that made him a qualified individual under the ADA. Even then, the Court
still rejects Patrick’s argument because she has not shown that TDCJ failed to provide reasonable
accommodations for Rodgers’s disability. More precisely, the Court finds that Patrick has failed
to raise a genuine issue of material fact that the accommodations she describes were open, obvious,
and apparent needs based on the limitations of Rodgers’s disabilities.
Patrick has not argued that Rodgers requested and was denied any accommodation. Rather,
she argues that Rodgers’s disability was open, obvious, and apparent and that the accommodations
she articulates were therefore required. However, as stated earlier, Patrick must also show not only
that the disability was open, obvious, and apparent, but also that the resulting limitation of the
disability and accommodation were as well. To show that the disability, resulting limitation, and
accommodation were open, obvious, and apparent, Patrick must show that they were known or
should have been known by TDCJ employees. The Court examines these first as they pertain
Rodgers’ mental disabilities and then as they pertain to his physical ones.
1. The Limitations of and Accommodations for Rodgers’s Mental Disabilities
Were Not Open, Obvious, and Apparent
Regarding Rodgers’s mental disabilities, TDCJ employees on the Clements Unit
Classification Committee (“UCC”) had some knowledge that Rodgers suffered from mental health
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issues when determining his housing assignments at the Clements Unit. 21, 22 For example, the
record before the Court indicates that Rodgers was treated at the Skyview Unit — a TDCJ Inpatient
Psychiatric Unit — in 2011 and 2012. See (P-APP 45–54, 59–92). During his time at Skyview,
Rodgers was diagnosed with varying forms of psychosis and mental health illness and treated with
different antipsychotic medications. His diagnosis and treatment history are reflected in his TDCJ
Health Summary for Classification Form, dated October 13, 2015. The Form indicates that he had
a “PULHES” classification of “S3NR” and certain medical restrictions. (P-APP 200). 23 According
to Frank AuBuchon, Patrick’s correctional practices expert and the former Administrator for
Classification Operations at the TDCJ Classification and Records Headquarters:
This PULHES classification is an indication that offender Rodgers has a significant
mental health issue. Further, the form shows that Rodgers has a restriction that he
must be housed on a facility that has extended medical department hours and a
restriction that a member of the Mental Health Department must be consulted
before taking disciplinary action against the offender.
(P-APP 205).
When viewed in the light most favorable to Patrick, the evidence indicates that agents on
the UCC were aware of the Skyview treatment records, the TDCJ Health Summary for
The three-person UCC is responsible for assigning inmates to their housing. See (P-APP 231); see also (TDCJ-APP
451-456) (containing various UCC History Forms for Rodgers). Housing assignments, among other things, are
generally made by the UCC in light of an inmate’s medical history and Health Summary for Classification Form. See
(P-APP 231). Rodgers’s most recent Health Summary for Classification Form was prepared by Dr. Ofomata, an agent
of TTUHSC, on October 13, 2015. See (P-APP 200). It is unclear from the record how much of an inmate’s medical
history is considered by the UCC for housing assignment purposes or which individuals from the Clements Unit
comprise the UCC.
22
Rodgers was reassigned from another unit to the Clements Unit on October 28, 2014. See (TDCJ-APP 1462). A
UCC History Form for Rodgers dated on October 29, 2014, conspicuously contains the handwritten notation “*psych.”
See (TDCJ-APP 456). When viewed in the light most favorable to Patrick, this evidence indicates that the UCC had
that form before it reassigned Rodgers to be housed with Greggs in November 2015. See (TDCJ-APP 452).
23
“TDCJ inmates are classified for housing and work using the PULHES system.” Flowers v. Isbelle, No. CIV.A. H12-1165, 2012 WL 6099046, at *1 n.1 (S.D. Tex. Dec. 7, 2012). “The military services established the ‘PULHES’
numeric system for rating a patient’s physical health by assigning a number from one to four in the following
categories: Physical capacity or stamina, Upper extremities, Lower extremities, Hearing—ears, Eyes, and psychiatric.”
Id. (citing Gossage v. United States, 91 Fed. Cl. 101, 103 n.3 (Fed. Cl. 2010)).
21
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Classification Form dated October 13, 2015, or some other records pertaining to Rodgers’s serious
mental health history. Because TDCJ employees knew of Rodgers’s disability, this Court finds
that his disability was open, obvious, and apparent to TDCJ.
Despite potential knowledge of Rodgers’s disability, however, Patrick has not shown that
the resulting limitations of the disability or the need for the accommodation articulated by Patrick
were open, obvious, and apparent to TDCJ. In particular, there also is no evidence that Rodgers
requested an accommodation in direct and specific terms from TDCJ, during the relevant time of
November 2015 to January 2016. There is no evidence that the consequential limitations and
necessary reasonable accommodations stemming from Rodgers’s mental disability were known or
should have been known to any TDCJ employee. Although Patrick argues that TDCJ should have
accommodated Rodgers’s known mental disability with a special housing assignment or a closely
monitored shared cell, she fails to establish a genuine issue of material fact that TDCJ or TDCJ
employees knew or should have known that the limitations resulting from Rodgers’s disability
required him to be single-celled or monitored more closely than other inmates.
Patrick’s final argument to be considered here cites statements by her correctional medicine
expert Dr. Homer Venters and her correctional practices expert Mr. AuBuchon. Dr. Venters opined
that Rodgers should have been single-celled because “persons with psychotic disorders
particularly, even when they are faring well, can experience high levels of paranoia, agitation that
may not be noticeable to clinical staff or that may not be reported to clinical staff.” (P-APP 180).
Similarly, Mr. AuBuchon opined that “TDCJ and its employees should have, if nothing else,
provided enhanced monitoring of Rodgers given his mental health status.” (P-APP 205).
However, these opinions are simply conclusory. As such, they do not raise a genuine issue
of material fact issue as to whether it was open, obvious, and apparent to any TDCJ employee that
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any limitations resulting from Rodgers’s mental disability reasonably necessitated such
accommodations. The Court therefore concludes that the limitations of Rodgers’s disabilities and
the accommodations for them that Patrick articulates were not open, obvious, and apparent.
2. The Limitations of and Accommodations for Rodgers’s Physical Disabilities
Were Not Open, Obvious, and Apparent
As for Rodgers’s physical disabilities, Patrick argues that Rodgers was physically disabled
both because of assaults by his cellmate Greggs and because of weight loss that he experienced
while housed with Greggs.
Regarding Rodgers’s injuries, the Court notes that the summary judgment evidence does
not clearly identify specifically when Rodgers sustained any bone fractures, abrasions, or the brain
bleed discovered during his autopsy. This makes it difficult for Patrick to show that any TDCJ
employee who interacted with Rodgers knew or should have known about his injuries since it is
unclear whether he had them at the time of the interaction. For Patrick to meet her burden, she
must identify an injury that clearly existed at the time of an interaction with a TDCJ employee.
To that end, Patrick makes two arguments. First, she argues that there is evidence that a
TDCJ employee — Officer Taylor — observed a bruise on Rodgers’s check on January 10, 2016,
and failed to report such injury to a supervisor. Second, she argues that there is evidence that
another TDCJ employee — Officer Randal — interacted with Rodgers a week prior to his death.
Patrick further argues that these interactions are sufficient to show that TDCJ employees were
aware that the assaults had occurred.
Here, however, Patrick seems to have conflated the standards for a deliberate indifference
claim with the standards for a claim under the ADA or the RA. As stated earlier, to meet the open,
obvious, and apparent standard, Patrick must show that a TDCJ employee knew or should have
known about these disabilities, the resulting limitations of these disabilities, and the reasonable
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accommodations for these disabilities. Without showing all three of these things, Patrick cannot
meet her burden of showing that Rodgers’s physical disabilities were open, obvious, and apparent.
For Officer Taylor, although he observed a single bruise on Rodgers’s cheek, there is no
evidence that he knew or should have known that the bruise indicated a disability. And there is
certainly no evidence that he knew or should have known that this disability had resulting
limitations or that a reasonable accommodation for it was needed. At very best, his observation
was an indication that Rodgers’s safety might have been at risk.
The absence of evidence is even more glaring with respect to Officer Randal. There is no
evidence that Officer Randal knew or should have known of Rodgers’s injuries (or even his weight
loss) during these interactions. And even if he did, there is no evidence that he knew or should
have known of the resulting limitations of those injuries or that reasonable accommodations were
needed for them.
The foregoing analysis also applies to Rodgers’s weight loss. Patrick argues that the failure
of TDCJ correctional officers to properly conduct randomized cell searches and bed checks led or
contributed to their failure to notice his weight loss. Additionally, she argues that the failure of
TDCJ sergeants to properly supervise these officers also contributed to this failure. But even
assuming that she is correct about all of this, she has failed to provide any evidence that these
officers and sergeants knew or should have known about Rodgers’s weight loss, the resulting
limitations of it, and the reasonable accommodations for it. Again, all three of these must be
established to show that they were open, obvious, and apparent. Patrick has failed to establish these
with respect to both Rodgers’s injuries and his weight loss and thus has failed to meet her burden
for her ADA and RA claims.
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*
*
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*
The Court therefore GRANTS TDCJ’s motion for summary judgment, and Patrick’s ADA
and RA claims against TDCJ are DISMISSED with prejudice. Before concluding this section, the
Court notes that Patrick had previously filed an unopposed motion for the dismissal of her accessto-the-courts claim against TDCJ under Federal Rule of Civil Procedure 41(a)(2). (ECF No. 381).
However, the Court at the time denied that motion because the rule in question applied only to the
dismissal of an entire action, not particular claims. See (ECF No. 388). Considering the matter
now, the Court concludes that the same Eleventh Amendment immunity analysis from Section
IV(A)(1) applies to Patrick’s access-to-the-courts claim against TDCJ. Specifically, to the extent
that Patrick sought monetary damages from TDCJ under Section 1983, her claim is barred on the
grounds that TDCJ is a Texas agency that enjoys Eleventh Amendment immunity from this kind
of lawsuit. Accordingly, the Court also DISMISSES Patrick’s access-to-the-courts claim against
TDCJ with prejudice.
VI
TTUHSC moves for summary judgment on Patrick’s ADA and RA claims against it.
TTUHSC makes, inter alia, two arguments. First, TTUHSC argues that Patrick’s ADA claim fails
because there is no evidence that TTUHSC intentionally discriminated against Rodgers by failing
to provide reasonable accommodations for him. Second, TTUHSC argues that Patrick’s RA claim
fails for the same reasons. For the reasons that follow, the Court grants TTUHSC’s motion for
summary judgment.
*
*
*
Patrick claims that TTUHSC violated Title II of the ADA and Section 504 of the RA by
failing to accommodate his known mental and physical disabilities. Specifically, Patrick claims
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that TTUHSC failed to accommodate, first, his known mental disability with required medical
treatment and medication, a referral for appropriate medical treatment, adequate monitoring after
changing his medication, or an appropriate housing assignment from TDCJ and, second, his known
physical disabilities with required medical treatment. See, e.g., (ECF No. 282 at ¶¶ 92, 94–95).
TTUHSC makes several arguments in response to Patrick’s claims. However, the Court
will address only one of them since it, if correct, is sufficient to justify the Court’s decision to grant
TTUHSC’s motion for summary judgment. As stated in Section V(A), to establish a prima facie
case under Title II of the ADA and Section 504 of the RA, a plaintiff must show that he has a
disability that qualifies him under these acts, that he was excluded in participation from benefits
by, denied benefits by, or subject to discrimination by a public entity, and that the entity did this
because of his disability. The plaintiff can demonstrate the last of these three elements by showing
that the entity in question failed to provide a reasonable accommodation for him. If, however, the
plaintiff does not request a reasonable accommodation, he can prevail only by showing that the
disability, its resulting limitation, and the reasonable accommodation all were open, obvious, and
apparent to the entity. This is accomplished by showing that the entity knew or should have known
about the disability, its resulting limitation, and the reasonable accommodation.
Claims under the ADA and the RA also should be distinguished from claims of insufficient
medical care. See Cadena v. El Paso County, 946 F.3d 717, 726 (5th Cir. 2020). (“The ADA is not
violated by ‘a prison’s simply failing to attend to the medical needs of its disabled prisoners.’”
(quoting Nottingham v. Richardson, 499 F. App’x 368, 377 (5th Cir. 2012)); see also Lee v. Valdez,
No. 3:07-CV-1298-D, 2009 WL 1406244, at *13 (N.D. Tex. May 20, 2009) (“‘Inadequate medical
care,’ however, ‘does not provide a basis for an ADA claim unless medical services are withheld by
reason of a disability.’” (internal quotation marks and citations omitted)).
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Here, the Court assumes for the sake of argument that Patrick has raised a genuine issue of
material fact as to the first and second elements: that Rodgers has a disability that qualifies him
under the ADA and the RA and that he was excluded from participation in benefits by, denied
benefits by, or subject to discrimination by TTUHSC. Thus, to meet her summary judgment
burden, Patrick only needs to raise a genuine issue of material fact as to the third element: that
Rodgers was subject to these things by TTUHSC by reason of his disability. However, Patrick has
not argued that Rodgers requested and was denied any accommodation. Consequently, she must
show that his disability, the resulting limitation of his disability and the accommodations that she
articulates for it were necessary were open, obvious, and apparent. And to show that, she must
show that they were known or should have been known by TTUHSC employees.
For the reasons that follow, the Court finds that she has failed to show this. The Court
explains these reasons as they relate to the three TTUHSC agents relevant to this case:
Dr. Ofomata, Mr. Granat, and CMA Raper.
A. There Is No Evidence That Dr. Ofomata or Mr. Granat Knew or Should Have Known
of the Limitations of and the Accommodations Needed for Rodgers’s Disabilities
According to the record before the Court, prior to his first meeting with Rodgers,
Dr. Ofomata “review[ed Rodgers’s] disciplinary records and use of force records for the previous
two years, along with his medical and mental health records.” (P-APP 128). The medical and
mental health records reviewed by Dr. Ofomata included Rodgers’s Skyview treatment records
and other mental health records pertaining to Rodgers. Among other things, those mental health
records established Rodgers’s extensive treatment for mental health issues, his issues with weight
loss in the past, and his medication compliance issues. (P-APP 45–54, 59–92); (P-APP 47, 51, 61,
86); (P-APP 47, 62, 68, 75, 86, 90); (P-APP 52–53, 86, 92); (P-APP 128, 130, 144, 157); (P-APP
46, 59, 61, 66, 90, 93).
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On August 8, 2015, Rodgers met with and reported hearing voices to Dr. Ofomata. See (PAPP 130). On October 23, 2015, Dr. Ofomata generated a TDCJ Health Summary Classification
Form, which indicates that Rodgers had a “PULHES” classification of “S3NR” and certain
medical restrictions. See (P-APP 200). On the same date, he took Rodgers off of his antipsychotic
medication due to compliance issues. See (P-APP 128, 139-141). 24 On October 23, 2015, Rodgers
submitted a written I-60 request to be put back on his antipsychotic medication because he was
hearing voices. See (P-APP 144). 25
On November 20, 2015, Dr. Ofomata changed Rodgers’s primary diagnosis from
“Psychotic Disorder NOS” to intermittent-explosive disorder — a diagnosis of exclusion. 26
Compare (P-APP 131) with (P-APP 150–51). He concluded from his observations of Rodgers that
no evidence of psychosis or auditory hallucinations was present. (P-APP 150–51). The change in
Rodgers’s diagnosis was made following Mr. Granat’s cell-side visit with Rodgers on October 23,
2015. Dr. Ofomata was aware that Mr. Granat had previously visited Rodgers. (P-APP 128).
Significantly, Rodgers denied experiencing any hallucinations to Mr. Granat during that visit. See
(P-APP 157, 162). Based on Mr. Granat’s observations, Dr. Ofomata concluded that Rodgers
exhibited no symptoms of psychosis, mania, depression, or any other mental health problem. See
(P-APP 161).
Regarding Mr. Granat, the record before the Court indicates that he “review[ed Rodgers’s]
medical records” prior to meeting with him cell-side. (P-APP 157); see (P-APP 160). These
24
Another doctor had prescribed the antipsychotic medication to Rodgers at some point prior to August 8, 2015. See
(P-APP 130).
25
“Offenders can ask for help by using the Offender Request to Official (I-60) form. I-60 forms are available in living
areas and in various other places on the unit.” Nunnelley v. Stephens, No. 2:14-CV-0260, 2015 WL 7566237, at *2
n.2 (N.D. Tex. Nov. 4, 2015) (quoting Offender Orientation Handbook at 70 (Sept. 2015)).
26
A diagnosis of exclusion is a diagnosis reached through a process of elimination.
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medical records included Rodgers’s Skyview treatment records and other mental health records
pertaining to Rodgers. Mr. Granat’s own treatment records pertaining to Rodgers indicate that:
Rodgers was previously diagnosed with varying forms of psychosis and mental
health illnesses, see (P-APP 162–63);
Mr. Granat went to Rodgers’s cell to evaluate him after receiving his written I60 request to be put back on his antipsychotic medication because he was
hearing voices, see (P-APP 157, 160); and
Rodgers complained of being taken off of his antipsychotic medication to Mr.
Granat on October 23, 2015. See (P-APP 157, 160).
All of this evidence clearly shows that Dr. Ofomata and Mr. Granat knew or should have known
that Rodgers had mental disabilities given his medication compliance issues. But there is no
evidence that they knew or should have known that Rodgers’s mental disabilities resulted in
specific limitations that required single cell recommendation or notation for additional monitoring
— the accommodations discussed by Patrick. At very best, their awareness and response to
Rodgers’s I-60 request evinces a failure to accommodate Rodgers’s disability in the manner
requested by Rodgers. However, they do not evince a failure to accommodate it in the manner
articulated by Patrick. This difference is crucial: to meet her summary judgment burden, Patrick
must show that Dr. Ofomata and Mr. Granat failed to accommodate Rodgers’s disability in the
way that she discusses. But she has failed to do this.
Moreover, the record makes it clear that Dr. Ofomata continued to provide Rodgers with
medical care by continuing to see him periodically — it just was not the medical care deemed
appropriate by Patrick’s experts. Although Patrick may disagree with the level of medical care
provided by Dr. Ofomata, she has not shown that he denied Rodgers antipsychotic medication by
reason of his disability. Rather, the evidence indicates that Dr. Ofomata took Rodgers off of his
antipsychotic medication due to compliance issues and declined to place him back on it due to the
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change in his diagnosis. Even if this level of medical care was not sufficient for Rodgers’s medical
needs, a mere failure to provide sufficient medical care does not provide a cause of action under
the ADA, as stated earlier.
As for Mr. Granat, the evidence against Patrick’s claim is even clearer. Rodgers denied
experiencing any hallucinations to Mr. Granat on October 23, 2015. See (P-APP 157, 162). This,
along with other cell-side observations, led Mr. Granat to conclude that Rodgers exhibited no
symptoms of psychosis, mania, depression, or any other mental health problem. See (P-APP 161).
In light of this evidence, no reasonable jury could find that Mr. Granat knew or should have known
that Rodgers’s mental disabilities required him to even receive the accommodation that Rodgers
requested — being put back on antipsychotic medication — let alone the accommodation
described by Patrick. And as noted in the preceding paragraph, even if Rodgers received
insufficient medical care from Mr. Granat, this would be not be sufficient for a cause of action
under the ADA. 27
For all of these reasons, the Court finds that Patrick has failed to show the limitations of
his disability and her specified accommodations for them were open, obvious, and apparent to
Dr. Ofomata and Mr. Granat.
It is unclear whether knowledge can be “aggregated” among employees of an entity or agency to determine whether
a limitation or accommodation was “open, obvious or apparent.” The Court does not need to answer this question
because there is no evidence in the record of any communications between Dr. Ofomata and CMA Raper, or between
Mr. Granat and CMA Raper. See (RAPER-APP 73) (quoting CMA Raper stating: “[W]e’re not privy to any medical
information, just strictly pharmacy.”); (RAPER-APP 84) (quoting CMA Raper responding “[n]o” when asked if she
was aware of Rodgers’s diagnoses or any of his medical conditions before he died). As such, any knowledge that Dr.
Ofomata or Mr. Granat may have had regarding Rodgers’s treatment and serious mental health history cannot be
imputed to CMA Raper. Further, Patrick has not identified any summary judgment evidence indicating shared
knowledge across agencies or entities between TDCJ and TTUHSC.
27
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B. There Is No Evidence That CMA Raper Knew or Should Have Known of Rodgers’s
Disabilities, Their Resulting Limitations, or Reasonable Accommodations for Them
The Court additionally finds that Patrick has failed to raise a genuine issue of material fact
as to whether Rodgers’s physical disabilities were open, obvious, and apparent to CMA Raper.
Patrick has identified summary judgment evidence that:
CMA Raper personally observed Rodgers once on January 17, 2016 — the day
before Rodgers died — and on at least five other days in January 2016, see,
e.g., (RAPER-APP 44, 64, 78–80, 103–105);
Rodgers lost approximately 23 pounds — 14% of his total bodyweight —
between October 13, 2015, and January 18, 2016, and was observed to be
severely emaciated by hospital medical staff, see, e.g., (P-APP 14–15, 18);
Rodgers was beaten by his cellmate five times in January 2016, the first four of
which occurred prior to CMA Raper personally observing Rodgers on January
17, see, e.g., (P-APP 338–341);
in the days and weeks prior to January 17, Rodgers was immobile and bedridden
due to his physical disabilities, which resulted in or contributed to his suffering
from pneumonia, a bedsore, and pulmonary embolisms, or blood clots, see, e.g.,
(P-APP 30–42);
prior to January 17, CMA Raper expressed her concern to two different officers
on two different days that Rodgers’s cell was always dark, see (RAPER-APP
44–50); and
on January 17, CMA Raper expressed her concern to Officer Randal that
Rodgers was always on his bunk, always on his side, and always facing the wall
of his cell and that his cell was always dark. See, e.g., (RAPER-APP 59–60,
78–82).
TTUHSC has identified evidence on summary judgment that:
on January 10, 2016, an officer responded to CMA Raper’s concern regarding
the lack of lighting in Rodgers’s cell by stating that usually the inmates were
workers that slept at different times and wanted their cells to be dark, see
(RAPER-APP 44–46);
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on January 11, a second officer responded similarly to CMA Raper’s concern
regarding the lack of lighting in Rodgers’s cell by stating that the inmates were
usually workers that slept at different times and wanted their cells to be dark,
stating that the unit pod lights could not be turned on while the inmates’
personal cell lights could be, and by shining a flashlight into Rodgers’s cell, see
(RAPER-APP 46–49, 66);
on January 17, a third officer — Officer Randal — responded to CMA Raper’s
concerns regarding Rodgers’s lack of movement and the lack of lighting in
Rodgers’s cell by stating that he assumed that the cell was dark because Rodgers
had been working, that he heard two different identification numbers and two
different names when she asked for inmate identification — just a few days
before Rodgers had gotten up to take his new inmate identification picture —
and that TDCJ officers perform bed counts where the inmates have to get out
of bed and come to the cell door, see, e.g., (RAPER-APP 59, 61);
on that day, in light of the information provided by Officer Randal, CMA Raper
assumed that Rodgers was sleeping, see (RAPER-APP 59);
on that day, CMA Raper could not see Rodgers’s face or body due to Rodgers’s
bedsheets and the lack of lighting in Rodgers’s cell but heard two different
voices and assumed it was him talking, see (RAPER-APP 45, 62, 65–66, 82);
and
on that day, CMA Raper observed that Rodgers’s cell seemed to be in order.
See (RAPER-APP 63).
Given the full context of the summary judgment evidence above, there is insufficient
evidence to raise a genuine issue of material fact that CMA Raper knew or should have known of
Rodgers’s physical or mental disabilities, their resulting limitations, and reasonable
accommodations for them. First, neither Rodgers nor his cellmate communicated anything to CMA
Raper regarding Rodgers’s physical or mental health disabilities. Second, CMA Raper did not
observe Rodgers’s bodily injuries due to Rodgers’s bedsheet covering his body and the lack of
lighting in Rodgers’s cell. She also did not observe Rodgers undergoing a mental health crisis.
Third, CMA Raper’s concerns regarding lack of movement from Rodgers were alleviated by
explanations from Officer Randal and other correctional officers. Fourth and most importantly,
CMA Raper could not even observe Rodgers’s injuries at all and thus could not have known or be
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expected to have known to provide the accommodations described by Patrick — additional
medical care or more intensive medical care. For all of these reasons, the Court finds that Patrick
has failed to show Rodgers’s physical and mental disabilities, their resulting limitations, and the
reasonable accommodations for them were open, obvious, and apparent to CMA Raper. 28
*
*
*
Patrick has failed to raise a genuine issue of material fact from the summary judgment
evidence that the limitations resulting from Rodgers’s disabilities and the need for reasonable
accommodations for them were open, obvious, and apparent to Dr. Ofomata, Mr. Granat, CMA
Raper, or any of TTUHSC’s employees at the Clements Unit. Therefore, the Court GRANTS
TTUHSC’s motion for summary judgment, and Patrick’s ADA and RA claims against TTUHSC
are DISMISSED with prejudice.
VII
The State of Texas moves for summary judgment on Patrick’s ADA and RA claims against
it. The State of Texas makes, inter alia, the following two arguments. First, it argues that to the
extent Patrick seeks to impose liability on the State of Texas for the actions or omissions of TDCJ
or TTUHSC, the State of Texas incorporates the arguments presented in the motions for summary
judgment and briefs in support filed by those agencies. Second, it argues that to the extent Patrick
seeks to impose liability on the State of Texas for its own actions or omissions, Patrick’s theory of
liability fails because it is neither pleaded with the requisite specificity nor supported by the
summary judgment evidence. 29
28
There is no evidence in the record that Rodgers communicated anything regarding his mental disability to CMA
Raper or that he ever exhibited any mental health issues in front of her.
29
The State of Texas raises additional arguments regarding issues including the dismissal of duplicative claims against
it, the lack of responsibility for provision of services by it, and sovereign immunity. Because the court ultimately
concludes that the State of Texas is entitled to summary judgment on other grounds, the court declines to address those
arguments. The State of Texas also argues, among other things, that it is entitled to summary judgment on Patrick’s
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Patrick claims that the State of Texas intentionally discriminated against Rodgers in
violation of Title II of the ADA and Section 504 of the RA by failing to accommodate his known
mental and physical disabilities. Specifically, she claims that the State of Texas discriminated
against him by failing to accommodate these either through the actions or omissions of its agencies,
namely, TDCJ and TTUHSC, or through its own actions or omissions. See, e.g., (ECF No. 282 at
¶¶ 6, 92–96). She further claims that such failures were intentional. Id.
Patrick’s first theory is entirely predicated on the notion that the State of Texas is itself
responsible for the purported violations of the ADA and RA through the actions or omissions of
TDCJ and TTUHSC. Because this Court has already granted summary judgment to TDCJ and
TTUHSC and dismissed Patrick’s ADA and RA claims against them, this theory cannot succeed.
Patrick’s second theory is entirely predicated on the idea that the State of Texas is
responsible for its own purported failure to prevent TDCJ and TTUHSC from violating the ADA
and RA. Again, because this Court has granted summary judgment to TDCJ and TTUHSC and
dismissed Patrick’s ADA and RA claims against them, this theory also cannot stand. 30
*
*
*
Therefore, the Court GRANTS the State of Texas’s motion for summary judgment, and
Patrick’s ADA and RA claims against the State of Texas are DISMISSED with prejudice.
Section 1983 access-to-the-courts claim against it. However, Patrick’s access-to-the-courts claim against the State of
Texas was previously dismissed with prejudice after Patrick conceded the claim was not viable. See (ECF No. 232)on.
30
Assuming arguendo that Patrick’s second theory is predicated on the idea that the State of Texas independently
violated the ADA and RA, the Court finds that there is no competent summary judgment evidence that the State of
Texas, through its own actions or omissions, failed to accommodate, or intentionally discriminated against Rodgers.
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CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court:
DENIES summary judgment to Officer Taylor and Officer Randal on Patrick’s
claims for deliberate indifference to Rodgers’s safety;
GRANTS summary judgment to Officer Taylor (ECF No. 307) and Officer Randal
(ECF No. 337) on Patrick’s claims against them for deliberate indifference to
health, on the grounds of qualified immunity;
GRANTS summary judgment to CMA Raper (ECF No. 323) on Patrick’s claims
of deliberate indifference to health against her, on the grounds of qualified
immunity;
GRANTS, in part, the TDCJ sergeants’ motion (ECF No. 304) for summary
judgment on the grounds of qualified immunity, with the exception that Sgt.
Mogilnicki and Sgt. Burkholder are DENIED summary judgment with respect to
Patrick’s deliberate indifference to safety claims;
GRANTS summary judgment to these and the other sergeants on Patrick’s claims
against them for deliberate indifference to health claims on the ground of qualified
immunity; and
GRANTS Warden Martin’s (ECF No. 319), TDCJ (ECF No. 317), TTUHSC (ECF
No. 325), and the State of Texas’s (ECF No. 341) respective motions for summary
judgment.
Finally, all claims for which summary judgment is granted are also DISMISSED with
prejudice, and Patrick’s access-to-the-courts claim against TDCJ is DISMISSED with prejudice.
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SO ORDERED.
July 16, 2020.
________________________________
MATTHEW KACSMARYK
UNITED STATES DISTRICT JUDGE
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