Garrett v. Thaler

Filing 134

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: denying 101 MOTION for Summary Judgment , 118 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL GARRETT,
Plaintiff,
VS.
LORIE DAVIS,
Defendant.

March 20, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:13-CV-70
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Plaintiff Michael Garrett (Garrett) is a prisoner housed in the Texas Department of
Criminal Justice - Correctional Institutions Division (TDCJ-CID) McConnell Unit and he
has sued the TDCJ-CID Director,1 complaining of the conditions of his confinement. In
particular, he alleges that the prison schedule, noise, light, and inmate counts prevent him
from getting more than four hours of continuous sleep and that six hours of sleep is a
basic need, part of the minimal civilized measure of life’s necessities. He contends that
sleep deprivation presents serious health risks and that Defendant is deliberately
indifferent to that health risk. Garrett seeks declaratory and injunctive relief to require
administrative changes that expand the amount of continuous sleep he can get.
Pending before the Court is Defendant’s Motion for Summary Judgment (D.E.
101). The Motion challenges whether Garrett can establish (1) a violation of the Eighth
Amendment and/or (2) entitlement to injunctive relief. On December 9, 2016, United
States Magistrate Judge B. Janice Ellington issued a Memorandum and Recommendation
1

When this action was filed in March 2013, Rick Thaler was TDCJ-CID Director. See D.E. 1, 16. In June 2013,
William Stephens became TDCJ-CID Director. See D.E. 32. Effective May 1, 2016, Lorie Davis replaced William
Stephens as TDCJ-CID Director and she is the current Defendant.

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to Deny Defendant’s Motion for Summary Judgment (D.E. 118), finding that Garrett had
raised disputed issues of material fact regarding both his right and his remedy. After
obtaining an extension of time, Defendant timely filed objections (D.E. 127) on January
11, 2017, to which Plaintiff has responded (D.E. 130).
Defendant’s objections are not clearly itemized. However, the Court has extracted
from her briefing the following issues:
A. Whether the Walker case is binding precedent and dictates
a different result;
B. Whether the Magistrate Judge is permitted to treat sleep
deprivation as a substantial health risk on this record;
C. Whether Garrett’s evidence, on which the Magistrate
Judge relied, is competent;
D. Whether the Magistrate Judge misplaced the burden of
proof on this record; and
E. Whether this action is barred by limitations.
The Court considers each objection below and concludes that the objections are without
merit. Defendant’s motion for summary judgment should be, and is, DENIED.
DISCUSSION
A. Walker is Not Binding, Requiring a Different Result.
In the context of nearly identical allegations, the Fifth Circuit dismissed a
prisoner’s sleep deprivation claim in Walker v. Nunn, 456 Fed. App’x 419 (5th Cir. 2011)
(per curiam). The Fifth Circuit determined that the Walker “opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.” Id., fn*. That rule states that such opinions “are not precedent, except under
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the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show
double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the
like).”
On May 7, 2013, the Magistrate Judge dismissed Garrett’s case as failing to state a
claim upon which relief could be granted. D.E. 16. That decision was largely based
upon the Walker decision. On appeal, the Fifth Circuit reversed and remanded, stating,
Walker constitutes persuasive authority yet was decided on
summary judgment on a developed record, and it nowhere
indicates how many hours were devoted to sleep (presumably
more than four) under the prison schedule at issue. Analysis
of deprivation of “the minimal civilized measure of life’s
necessities” and “deliberate indifference” are fact-intensive
inquiries not easily determined without discovery.
Garrett v. Thaler, 560 Fed. App’x 375, 379 n.3 (5th Cir. 2014) (citations omitted).
Thus in light of the Fifth Circuit’s designation of Walker as an unpublished
opinion and Walker’s analysis applying to the specific allegations in that case, it is clear
that Walker’s holding is not binding here. In fact, its scope is questionable, given its lack
of specificity regarding the amount of sleep at issue. However, it remains persuasive
authority and must be carefully considered when evaluating the facts developed on this
record.
The Court rejects Defendant’s argument that Walker dictates any particular result
because varying facts may justify different relief, even under its subsidiary holdings. The
Court further rejects Defendant’s contention that, as determined in Walker, the exact
prison schedule at issue passes constitutional muster because it is reasonably related to
Defendant’s penological interests. This issue is discussed more fully below. These are
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fact-intensive issues that must be addressed on an individual case-by-case basis.
Defendant’s first objection is OVERRULED.
B. Sleep Deprivation is a Substantial Health Risk.
The Magistrate Judge held that, as a matter of law, sleep is one of life’s basic
needs, deprivation of which can state an Eighth Amendment claim. D.E. 118, p. 7. For
this proposition, she cited case law from the Second Circuit, Northern District of New
York, and the District of Delaware. Defendant dismisses those cases as “of dubious
value” and argues that this proposition conflicts with Walker, which should be binding on
this Court (an argument already rejected).
Walker does not reject sleep claims in their entirety. Quoting a prior case, both
Walker and the previous appellate opinion on this case recite, “Sleep undoubtedly counts
as one of life’s basic needs.” Walker, supra at 421 (quoting Harper v. Showers, 174 F.3d
716, 720 (5th Cir. 1999)); Garrett, 560 Fed. App’x 378 (same). The dismissal of the
claim in Walker was not based on the failure to identify a serious health risk but on the
lack of evidence of deliberate indifference. Furthermore, defendants could not be held
liable for the acts of subordinate employees because the prisoner had not demonstrated
the elements of a failure to supervise claim.
Evidence of the health risks of sleep deprivation are apparent from the analysis of
the Center for Disease Control (CDC), as posted on its website. Courts are permitted to
take judicial notice of information appearing on government websites, if the information
is not subject to reasonable dispute because it can be accurately determined from sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); e.g., Ball v.
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LeBlanc, 792 F.3d 584, 591 (5th Cir. 2015) (approving the district court’s taking of
judicial notice of the website materials on the National Weather Service’s website
relating to the correlation between heat and death in adjudicating a claim that involved
atmospheric heat at the prison); Gent v. CUNA Mut. Ins. Soc'y, 611 F.3d 79, 84 (1st Cir.
2010) (taking judicial notice of material on CDC website regarding Lyme disease—
cause, symptoms, and treatment).
The Court agrees with the Magistrate Judge that sleep deprivation can support an
Eighth Amendment claim and that CDC website materials may be used to support the
determination of whether there is a disputed issue of material fact regarding the amount
of sleep required as a basic life necessity and the health risks associated with sleep
deprivation, along with whether Defendant should have been aware of this obvious health
risk. It thus rejects Defendant’s argument that this statement of the law is based on
“dubious” extra-jurisdictional cases or conflicts in any way with Walker. The Court
OVERRULES Defendant’s second objection, which asserts that the claim of a substantial
health risk was not properly made on this record.
C. Garrett’s Evidence is Competent.
Defendant claims that Garrett’s Spears hearing testimony may be treated as
allegations, but not as factual evidence.

By relying on those mere allegations, the

Magistrate Judge inverted the burden of proof, requiring Defendant to disprove Garrett’s
allegations in a no-evidence summary judgment challenge. Defendant contends that the
Magistrate Judge thus reached the wrong result.

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Verified pleadings and Spears hearing testimony given under penalty of perjury
are both matters related to allegations that also serve as competent summary judgment
evidence. Walker, supra at 425; see also Hart v. Hairston, 343 F.3d 762, 765 (5th
Cir.2003); Grimon v. Collins, 30 F.3d 1491 (5th Cir. 1994). The Court OVERRULES
Defendant’s third objection as addressed to the competency of Garrett’s Spears hearing
testimony as summary judgment evidence.
D. Defendant Failed to Satisfy its Burden.
Defendant argues, “In sum, the plaintiff in Walker not only offered more
compelling allegations than in this case, but offered vastly superior evidence to support
them.” D.E. 127, p. 4. The question here is not whether the case stated is more or less
compelling than the Walker case. Rather, the Court must determine if Garrett supplied
some evidence on each element of his claims sufficient to raise a disputed issue of
material fact.
The only element that Defendant challenges as missing is deliberate indifference.
Defendant does not appear to attack the sufficiency of the evidence to raise a disputed
issue of material fact, but rather questions whether Walker, as a matter of law, preempts
the issue. Defendant argues that Walker determined that the exact prison schedule at
issue here passes constitutional muster. However, Walker was determined on its own
record and this Court must evaluate the evidence on a case-by-case basis. Garrett, 560
Fed. App’x at 379 n.3.
As already discussed, Walker is not binding and did not insulate any issue from
future consideration. It ruled in favor of the prison—on that record—because its Director
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negated the element of deliberate indifference by testifying regarding the need for the
particular 24-hour prison schedule as a legitimate penological interest. Walker failed to
controvert that evidence. Walker, supra at 423. Thus there was no disputed issue of
material fact for the jury to determine.
Here, there is no evidence addressing any alleged legitimate penological interest to
support the particular schedule established with only small blocks of time for sleep.
Defendant’s evidence addresses only Garrett’s overall prison schedule (D.E. 101-1), his
work schedule (D.E. 101-2), and the Warden’s assurance that Garrett is not required by
any rule or policy of the prison to actively participate in prisoner counts. Nothing
addresses why there is no block of time exceeding four hours in which noise, light, and
meal times are not likely to interrupt sleep. Nothing controverts Garrett’s testimony that
guards’ use of high-powered flashlights during counts wakes him unnecessarily, even if
he does not have to actively participate in the counts.
Defendant does not contend that this record contains evidence of a legitimate
penological interest. Instead, she argues that any requirement that she proffer evidence to
that effect constitutes an impermissible reversal of the burden of proof. But that is not an
accurate application of the law. Plaintiff’s burden is to show that the condition of
confinement violates a constitutional right. It is then Defendant’s burden to identify a
legitimate penological interest that supports a finding that the decision was a reasonable
infringement of Plaintiff’s rights under circumstances of incarceration. E.g., Fontroy v.
Beard, 559 F.3d 173, 177–78 (3d Cir. 2009); Salahuddin v. Goord, 467 F.3d 263, 274–75
(2d Cir. 2006); Akers v. McGinnis, 352 F.3d 1030, 1048 (6th Cir. 2003).
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Defendant’s burden is a light one—to supply a rationale as to how the
constitutional intrusion is related to a penological interest. Fontroy, supra. It has been
described as a “relatively limited burden of identifying” the interest. Salahuddin, supra.
But it must be more than a conclusory assertion. Fontroy, supra. Once that is done,
Defendant’s policy is entitled to substantial deference and the burden of proof returns to
Plaintiff.

Fontroy, supra; Salahuddin, supra; Akers, supra.

Plaintiff must then

demonstrate that the prison policy should nevertheless be rejected, based on (1) whether
the stated rationale withstands scrutiny; (2) whether inmates have an alternative means of
exercising their constitutional right; (3) what burden on prison resources would be
imposed by accommodating the right; and (4) whether alternatives to the regulation can
fully accommodate the inmate's rights at de minimis cost to valid penological objectives.
Akers, supra (citing Turner v. Safley, 482 U.S. 78, 90 (1987)).
Because Defendant did not claim any legitimate penological interest for the
particular schedule, Plaintiff was not put to his proof on the four issues used to test the
necessity for any impingement of his constitutional right to sufficient sleep. This is
precisely where Walker is distinguishable.

In Walker, the defendant claimed a

penological interest, but the inmate did not then offer evidence on any of the four
methods for challenging whether that interest supported the constitutional intrusion. The
prison in Walker won that issue by default so the Walker case does not pretermit the
question here.
The Magistrate Judge did not reverse the burden of proof nor did she “default” on
considering the legitimate penological interest. Defendant simply failed to address the
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issue. Plaintiff demonstrated some evidence that his Eighth Amendment rights were
violated and thereby shifted the burden to Defendant to identify a legitimate interest for
the policies affecting Plaintiff’s sleep. Only after that interest was identified would the
burden shift back to Plaintiff to show that the policy was not appropriate under all of the
circumstances. The Court OVERRULES Defendant’s fourth objection regarding the
evidence and the placement of the burden of proof.
E. This Action is Not Barred by Limitations.
Garrett has submitted sufficient evidence to raise disputed issues of material fact
regarding whether he was deprived of the minimal civilized measure of life’s necessities
through Defendant’s deliberate indifference to the substantial risk caused by the
restrictions on his ability to sleep for at least six continuous hours—a basic human need.
Defendant suggests that, if Plaintiff has a claim, it accrued when the prison schedule was
changed in 2000. Because that was thirteen years prior to his filing of this action, the
case is barred by limitations. D.E. 127, p. 7.
The limitations bar is an affirmative defense and Defendant did not plead it in her
answer (D.E. 36). Fed. R. Civ. P. 8(c). Neither did her motion for summary judgment
address it. D.E. 101. Furthermore, a cause of action for a continuing tort such as Garrett
alleges does not accrue until the defendant's tortious act ceases. Upjohn Co. v. Freeman,
885 S.W.2d 538, 542 (Tex. App.--Dallas 1994, writ denied), cited with approval by Tuft
v. Texas, 410 F. App'x 770, 774 (5th Cir. 2011). Without pleading this defense, seeking a
judgment on the basis of the defense, and briefing the matter of a continuing tort,

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Defendant has not demonstrated any error on the basis of limitations.

The Court

OVERRULES Defendant’s fifth objection.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Defendant’s objections, and all other relevant documents in the record, and having made
a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Defendant’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendant’s Motion for Summary
Judgment (D.E. 101) is DENIED.
ORDERED this 20th day of March, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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