Kearey v. Currie et al

Filing 61

MEMORANDUM AND RECOMMENDATIONS re 54 MOTION for Summary Judgment. Objections to M&R due by 8/27/2015(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARK JAMAL KEARNEY,
Plaintiff,
VS.
GARY L CURRIE, et al,
Defendants.

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CIVIL ACTION NO. 2:14-CV-39

MEMORANDUM AND RECOMMENDATIONON DEFENDANT
MONROE’S MOTION FOR SUMMARY JUDGMENT
In this prisoner civil rights action, Plaintiff Mark Jamal Kearney challenges certain
practices and policies of the Texas Department of Criminal Justice, Criminal Institutions
Division (TDCJ-CID) on the grounds that they violate his First Amendment right to
practice his Muslim faith, and also his statutory rights under the Religions Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §. 2000cc. In addition, Plaintiff is
suing Carol E. Monroe, the warden of the McConnell Unit (MCU), in his individual
capacity for monetary damages, alleging that Defendant Monroe violated his due process
and Eighth Amendment rights in regards to Plaintiff’s placement in a solitary cell
following disciplinary charges.
Pending is Defendant Monroe’s motion for summary judgment.

(D.E. 54).

Warden Monroe claims that he is entitled to judgment in his favor on Plaintiff’s claims
because he is entitled to qualified immunity.

Id.

Plaintiff has filed a response in

opposition. (D.E. 59), to which Warden Monroe has filed a reply. (D.E. 60).
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For the reasons stated herein, it is respectfully recommended that summary
judgment be granted in favor of Warden Monroe and that Plaintiff’s claims against this
Defendant be dismissed with prejudice.
I.

JURISDICTION.
The Court has federal question jurisdiction over this civil rights action pursuant to

28 U.S.C. § 1331.
II.

PROCEDURAL BACKGROUND.
Plaintiff is a prisoner in the TDCJ-CID and is currently housed at the MCU.
On February 5, 2013, Plaintiff filed his original complaint and named the

following individuals as Defendants: (1) Brad Livingston, the TDCJ Executive Director;
(2) William Stephens, the TDCJ-CID Director;1 (3) MCU Warden Gary L. Currie; (4)
MCU Warden Carol E. Monroe; and (5) Warden L. Clark, the Region IV Director. (D.E.
1, p. 3).
On March 14, 2014, a Spears2 hearing was conducted, following which it was
recommended that Plaintiff’s First Amendment and RLUIPA claims seeking prospective
injunctive relief be retained against Defendants Livingston and Stephens in their official
capacities, and that Plaintiff’s due process and Eighth Amendment claims be retained
against Warden Monroe in his individual capacity only. (D.E. 9). It was recommended
1

Plaintiff named former TDCJ Director Rick Thaler as a defendant; however, William Stephens is the new TDCJCID Director and he was substituted as the proper party defendant.

2

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

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that Plaintiff’s claims against Warden Currie and Warden Clark be dismissed for failure
to state a constitutional violation as Plaintiff complained only that these Defendants
denied his grievances, and it was recommended that all claims for money damages
against Defendants in their official capacities be dismissed as barred by the Eleventh
Amendment. Id. Plaintiff did not file objections to the recommendation, and on June 23,
2014, the Court adopted the recommendation. (D.E. 10). The Court retained Plaintiff’s
RLUIPA and First Amendment claims for injunctive relief against Livingston and
Stephens in their official capacities but stayed those claims pending their resolution in a
similar action, Ali v. Stephens, Case No. 9:09-cv-052 in the United States District Court
for the Eastern District of Texas, Lufkin Division. Id. The Court retained Plaintiff’s due
process claim and Eighth Amendment excessive heat claim against Warden Monroe in
his individual capacity. Id. All remaining claims were dismissed. Id.
On July 23, 2014, the Office of the Attorney General (OAG), as Amicus Curiae,
notified the Court that Plaintiff’s Eight Amendment excessive heat claim could
potentially be related to pending Multidistrict Litigation styled, In re Texas Prison Heat
Litigation, MDL Case No. 2569. (MDL 2569). (D.E. 15).
On July 24, 2014, the OAG filed a motion to sever Plaintiff’s heat claims (D.E.
16), and on July 28, 2014, the OAG filed a notice of appearance in MDL 2569. (D.E.
17).
On August 8, 2014, Warden Monroe filed his Answer. (D.E. 19).

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On August 15, 2014, Plaintiff filed a motion for appointment of counsel, motion to
transfer case, and motion to consolidate. (D.E. 21).
On September 8, 2014, Plaintiff filed his First Amended Complaint and named as
defendants Gary L. Currie, William Stephens, Brad Livingston, Rick Thaler, and Eileen
Kennedy. (D.E. 23).
On September 11, 2014, Defendant Monroe filed an Amended Answer to
Plaintiff’s First Amended Complaint. (D.E. 24).
By Order entered November 28, 2014, the OAG’s motion to sever and transfer
Plaintiff’s excessive heat claim was denied, as was Plaintiff’s motion to transfer and
consolidate.

(D.E. 29).

In addition, the stay was lifted as to the RLUIPA/First

Amendment litigation. Id. at 6-7. Plaintiff’s motion to amend to add Rick Thaler, Gary
Currie, and Eileen Kennedy as defendants was denied. Id. at 6.
On December 10, 2014, Plaintiff filed a motion for a preliminary
injunction/temporary restraining order (TRO) to be permitted to wear a one-half inch
beard based on the holding in Ali v. Stephens, wherein the Lufkin district court held that
the TDCJ’s no-beard policy violated RLUIPA. (D.E. 31).
On December 22, 2014, Defendants Livingston and Stephens filed an Answer to
Plaintiff’s first amended complaint. (D.E. 32). Also on that date, Defendants Monroe,
Livingston and Stephens filed a motion to stay Plaintiff’s RLUIPA/First Amendment
claims pending the Supreme Court’s resolution of Holt v. Hobbs, 135 S. Ct. 853 (2015),
wherein the high Court was to address the Arkansas Department of Correction’s no-beard
grooming policy under RLUIPA. (D.E. 33).
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On February 24, 2015, the Court stayed Plaintiff’s First Amendment/RLUIPA
claims against Defendants Livingston and Stephens pending the Hobbs decision, while
Defendant Stephens and the TDCJ agreed to allow Plaintiff to wear a one-half inch beard,
rendering Plaintiff’s TRO motion moot. (See D.E. 48). Plaintiff’s due process and
Eighth Amendment claims against Warden Monroe were permitted to proceed. (D.E.
51).
On June 1, 2015, Defendant Monroe filed the instant motion for summary
judgment. (D.E. 55).
On July 6, 2015, Plaintiff filed his summary judgment response. (D.E. 59).
On July 17, 2015, Defendant Monroe filed his reply to Plaintiff’s response. (D.E.
60).
III.

SUMMARY JUDGMENT EVIDENCE.
In support of his motion for summary judgment, Defendant Monroe offers the

following:3
Ex. A:
Ex. B:

Affidavit of Warden Gary Currie (D.E. 54-3, pp. 2-5);

Ex. C:

Affidavit of Dr. Kathryn Means, TDCJ Director of Qualified
Monitoring and Compliance (D.E. 54-4, pp. 2-6);

Ex. D:

3

Affidavit of Warden Carol E. Monroe, Jr. (D.E. 54-2, pp. 2-4);

Plaintiff’s TDCJ Housing/Job Assignment History (D.E. 54-5, pp. 34);

Defendant’s exhibits are filed under seal.

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Ex. E:

Relevant Portions of Plaintiff’s Classification Records for 2013
(D.E. 54-6, pp. 3-6);

Ex. F:

Plaintiff’s Step 1 and Step 2 Grievances, #2013185226 (D.E. 54-7,
pp. 3-6);

Ex. G:

TDCJ’s Administrative Segregation Plan, effective March 6, 2012
(D.E. 54-8, pp. 3-33);

Ex. H:

TDCJ’s Administrative Directive 03.53 (rev. 8), Solitary
Confinement, effective May 17, 2012 (D.E. 54-9, pp.3-8); and

Ex. I:

Relevant portions of Plaintiff’s Medical Records from June 21, 2013
through August 2, 2014 (D.E. 54-103-32).

In his summary judgment response, Plaintiff also offers Warden Currie’s Affidavit
(D.E. 59-1, pp. 6-9), Dr. Mean’s Affidavit (D.E. 59-1, pp. 11-15), copies of Grievances
#2013185226 (D.E.59-1, pp. 21-24), and the TDCJ Administrative Segregation Plan.
(D.E.59-2, pp. 2-23).4 In addition, Plaintiff offers his own affidavit (D.E. 59-1, pp. 2-4),
and a TDCJ Heat Precaution 2013 Memorandum dated June 20, 2013. (D.E. 59-1, pp.
17-19).
The summary judgment evidence establishes the following:
Plaintiff entered the TDCJ-CID in 2003. He has been assigned to the MCU since
2007.
From April 12, 2013 to June 21, 2013, Plaintiff was a G4 custody offender at the
MCU and was housed in general population at 7 Building, 1 pod, 1 section, 3 row, 18
cell, bottom bunk. (D.E. 54-5, p. 4).
4

For convenience, reference will be made to Defendant’s exhibits where offered by both parties.

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On June 21, 2013, Plaintiff, who is a practicing Muslim, attempted to attend a
mandatory Jama’ah service in 7 gym. (D.E. 59-1, p. 2, Plaintiff’s Aff’t at ¶ 1). Sergeant
Perez told plaintiff that the Jama’ah service was going to be held in the 7 Building
Multipurpose room instead, and Plaintiff questioned Sergeant Perez as to why the
location had been moved. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 2). Sergeant Perez responded
that a Catholic service was being held in 7 gym; Plaintiff then demanded to speak to the
MCU Chaplin, who is also Catholic. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 2).
When the Chaplin arrived, Plaintiff accused him of discriminating against the
Muslim practitioners by moving their services from the gym and scattering Juma’ah
throughout the prison. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 3). The argument “got heated”
and Sergeant Perez called Captain B. Rodriguez and Lieutenant Morales. (D.E. 59-1,
Plaintiff’s Aff’t at ¶ 3). Captain Rodriguez arrived and “immediately started screaming”
at Plaintiff.

(D.E. 59-1, Plaintiff’s Aff’t at ¶ 5).

Plaintiff told her she was being

“unprofessional” and was placing him in “a compromising position.”

(D.E. 59-1,

Plaintiff’s Aff’t at ¶ 5). Captain Rodriguez then radioed for assistance, including “gas,
shields, and sticks.” (D.E. 59-1, Plaintiff’s Aff’t at ¶ 6). Warden Monroe responded over
the radio and told Captain Rodriguez “to wait, he was on his way.”

(D.E. 59-1,

Plaintiff’s Aff’t at ¶ 7).
Warden Monroe arrived and asked Plaintiff what was wrong.

(D.E. 59-1,

Plaintiff’s Aff’t at ¶ 8). Plaintiff related that, for Juma’ah services to be valid, it required
at least forty (40) male participants, and by changing the location, prison officials had
divided the service and scattered members throughout the prison rendering it ineffective.
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(D.E. 59-1, Plaintiff’s Aff’t at ¶ 8).

In addition, Plaintiff pointed out that the

Multipurpose room was hot and dirty, there were no prayer rugs, and there was no
running water that was also needed for Juma’ah services. (D.E. 59-1, Plaintiff’s Aff’t at
¶ 9). Warden Monroe indicated that the situation was not his fault and that the Muslim
Coordinator had not advised him of the needs of the group. (D.E. 59-1, Plaintiff’s Aff’t
at ¶ 10). However, Plaintiff did not believe him and told him as much. (D.E. 59-1,
Plaintiff’s Aff’t at ¶ 11). Warden Monroe then stated that, if Plaintiff would submit to
hand restraints, Warden Monroe would ensure that the other Muslim worshippers would
receive cleaning supplies, prayer rugs, and fans. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 12).
Plaintiff submitted to the hand restraints. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 13).
Warden Monroe advised Plaintiff that he was violating prison rules by refusing to
obey orders, inciting others to disobey orders, and being out of place. (D.E. 54-2,
Monroe Aff’t at ¶ 5; D.E. 54-5, noting Offenses 24.0, 8.0, and 27.0). Warden Monroe
told Captain Stroleny to escort Plaintiff to prehearing detention (PHD). (D.E. 54-2,
Monroe, Aff’t at ¶ 5). After Plaintiff left the area and order had been restored, Warden
Monroe returned to his office. (D.E. 54-2, Monroe, Aff’t at ¶ 5).
There were no cells available in PHD.5 (D.E. 59-1, Plaintiff’s Aff’t at ¶ 14).
Therefore, following his PHD medical examination, Captain Rodriguez and Lieutenant

5

Plaintiff claims that Captain Rodriquez advised Warden Monroe that there was no room in PHD and that Warden
Monroe then instructed Rodriguez and Morales to place Plaintiff in solitary. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 14).
Warden Monroe denies any involvement concerning the decision where to place Plaintiff in light of PHD being
unavailable. (D.E. 54-2, Monroe Aff’t at ¶ 5).

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Morales escorted Plaintiff to solitary confinement in 11 Building and Plaintiff was placed
in a solitary cell. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 14).
The solitary confinement cell was hot and had little ventilation. (D.E. 59-1,
Plaintiff’s Aff’t at ¶ 15). Plaintiff’s property was brought in, but officials took his fan
and radio as the solitary cell had no electrical outlet, unlike the PHD cells. (D.E. 59-1,
Plaintiff’s Aff’t at ¶ 16; D.E. 54-3, Currie Aff’t at ¶ 11). On the third day in the solitary
cell, Plaintiff began to feel dizzy and light-headed from the heat. (D.E. 59-1, Plaintiff’s
Aff’t at ¶ 17). He told the floor officer, and the floor officer advised Plaintiff that he had
notified the medical department. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 17). Plaintiff went to
sleep on the floor. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 18). The next day, he woke up and
felt worse. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 18). He ate his meal, but was unable to keep
his food down. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 18).
Plaintiff was released from the solitary cell on July 4, 2013.6 (D.E. 54-5, p. 4).
On July 4, 2013, he was housed in 7 Building where he slept with the window open or the
fan on, and the next morning, he was no longer sick. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 20).
Before his release, on July 4, 2013, Plaintiff submitted a Step 1 grievance,
Grievance No. 2013185226, complaining that prison officials were deliberately
indifferent to his health and safety while he was housed in the solitary cell. (D.E. 54-7,

6

At the Spears hearing, Plaintiff testified that he was held in the solitary cell for 18 to 19 days. In his affidavit,
Plaintiff does not offer any dates or state how many days he was held in solitary confinement, but insists that he was
still in solitary when he filed his Step 1 grievance, which is dated July 4, 2013. (See D.E. 59-1, Plaintiff’s Aff’t at ¶
22). Plaintiff’s Classification History reflects that Plaintiff was released from PHD status on July 1, 2013, but his
medical records indicate he remained in the solitary cell until July 3, 2014, and was released on July 4, 2014. (D.E.
54-10, p. 6). Plaintiff’s TDCJ records are the best evidence that he was transferred out of the solitary cell on July 4,
2013.

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pp. 3-4). He complained that there was no meaningful air circulation, that the heat was
oppressive, causing him to become dizzy and sick, and he was denied a fan. (D.E. 54-7,
p. 3). He complained also that he was unlawfully held in the solitary cell and was never
charged or found guilty of a disciplinary offense. (D.E. 54-7, p. 3). His Step 1 grievance
was denied on the grounds that he had been released from the solitary cell. (D.E. 54-7, p.
4).
On October 13, 2013, Plaintiff filed a Step 2 appeal of Grievance No.
2013185226. (D.E. 54-7, pp. 5-6). Plaintiff complained that the grievance response did
not address the issues of excessive heat, inadequate ventilation, and a due process
violation. (D.E. 54-7, p. 5). His Step 2 appeal was denied as being properly addressed at
Step 1. (D.E. 54-7, p. 6).
Plaintiff’s relevant medical records.
On June 21, 2013, Plaintiff was evaluated by medical personnel prior to his
placement in PHD.

(D.E. 54-10, pp. 3-6).

Nurse Borders noted no alteration in

Plaintiff’s mental status and no significant injury, nor was Plaintiff requesting medical
attention at the time. (D.E. 54-10, p. 5). His heart rate was regular, his speech was
normal, and he did not complain of headache or dizziness. (D.E. 54-10, pp. 3-4). He was
cleared for PHD for allegedly “refusing orders.” (D.E. 54-10, p. 5).
From June 22, 2013 through July 4, 2013, Plaintiff was seen by medical each day
that he was held in solitary/PHD. (D.E. 54-10, p. 6). No medical complaints were noted
during this time. (D.E. 54-10, p. 6).

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On August 27, 2013, Plaintiff was seen by medical personnel for review of his
musculoskeletal symptoms and lower bunk assignment. (D.E. 54-10, pp. 7-13).
On August 28, 2013, Plaintiff was seen in the infirmary for a follow-up visit for
complaints of right heel pain. (D.E. 54-10, pp. 14-15). Plaintiff reported that he had a
history of right ankle rolling and that he had stepped in water in the stairwell, slipped, and
his heel had come down on a piece of steel. (D.E. 54-10, p. 14). Upon examination,
Nurse Practitioner (NP) Hudson noted that Plaintiff is morbidly obese, weighing 343
pounds at 6’2” tall. (D.E. 54-10, p. 14). There was tenderness upon palpation to his heel
and mid-foot, but he had a full range of motion of the foot and ankle. (D.E. 54-10, p. 14).
NP Hudson noted a new diagnosis of hypertension. (D.E. 54-10, p. 14). The plan was to
obtain an x-ray of Plaintiff’s foot, order blood work, start him on high blood medication,
and prescribe Ibuprofen for his heel pain. (D.E. 54-10, p. 14).
Plaintiff’s next available medical record is dated almost a year later, on July 14,
2014. (D.E. 54-10, pp. 16-21). Plaintiff was seen by medical for evaluation following
the release of a chemical agent used in a major use of force. (D.E. 54-10. p. 16). Notes
indicate that on July 12, 2014, Plaintiff had been referred to Mental Health Services with
complaints of voices in his head telling him to hurt himself or others, along with signs of
agitation and restlessness. (D.E. 54-10, p. 18). The mental health provider, Jeffery
Carlisle, found that Plaintiff was at an “imminent high risk for a potentially lethal suicide
attempt,” and his plan was to transfer Plaintiff to crisis management/inpatient care. (D.E.
54-10, p. 19).

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On July 15, 2014, Plaintiff was seen in Mental Health Services. (D.E. 54-10, pp.
23-26). Plaintiff told Provider Joe Simental that, following the use of force, he got so
angry that he told Provider Carlisle that he was suicidal, and then he laughed. (D.E. 5410, p. 23). Plaintiff admitted he needed to learn to calm himself down but denied suicidal
or self-harm thoughts. (D.E. 54-10, p. 23). Provider Simental noted that Plaintiff had no
history of self-injurious behavior, and he found that Plaintiff was not at a serious risk to
himself. (D.E. 54-10, p. 23). His plan was to release Plaintiff and let him follow-up on
an as-needed basis. (D.E. 54-10, p. 26).
On July 19, and July 22, 2014, Plaintiff submitted Sick Call Requests (SCR)
asking to see a provider because he thought his blood pressure was higher due to the
extreme heat. (D.E. 54-10, pp. 29-30). He complained of feeling dizzy and nauseated.
(D.E. 54-10, pp. 29-30).
On July 22, 2014, Plaintiff was seen in the infirmary in response to his SCRs.
(D.E. 54-10, p. 27). Upon examination, Plaintiff’s vital signs were all within the normal
range with no acute distress noted. (D.E. 54-10, pp. 27). The plan was to schedule
Plaintiff for follow-up when he complained. (D.E. 54-10, pp. 270.
On August 1, 2014, Plaintiff was seen in the MCU infirmary for evaluation of his
blood pressure as well as complaints about pain to his right elbow following a major use
of force. (D.E. 54-10, pp. 31-32). PA Echavarry noted that Plaintiff had been prescribed
Metoprolol at the Critical Care Clinic for his hypertension and that this medication would
be continued. (D.E. 54-10, p. 31). PA Echavarry ordered an x-ray of Plaintiff’s elbow to
evaluate the elbow pain. (D.E. 54-10, p. 31).
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IV.

SUMMARY JUDGMENT STANDARD.
Summary judgment is proper if there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must examine “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this determination, the Court must consider the
record as a whole by reviewing all pleadings, depositions, affidavits and admissions on
file, and drawing all justifiable inferences in favor of the party opposing the motion.
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not
weigh the evidence, or evaluate the credibility of witnesses. Id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed. R. Civ. P. 56(e); see also Cormier v. Pennzoil Exploration
& Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider
affidavits that relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that courts cannot consider
hearsay evidence in affidavits and depositions).

Unauthenticated and unverified

documents do not constitute proper summary judgment evidence. King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (per curiam).

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The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party demonstrates an absence of evidence supporting the nonmoving party’s case, then
the burden shifts to the nonmoving party to come forward with specific facts showing
that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S.
at 248. “After the nonmovant has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant, summary judgment will be
granted.” Caboni, 278 F.3d at 451. “If reasonable minds could differ as to the import of
the evidence ... a verdict should not be directed.” Anderson, 477 U.S. at 250-51.
The evidence must be evaluated under the summary judgment standard to
determine whether the moving party has shown the absence of a genuine issue of material
fact. “[T]he substantive law will identify which facts are material. Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 248.
V.

DISCUSSION.
A.

42 U.S.C. § 1983.

Section 1983 provides a vehicle for redressing the violation of federal law by
those acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004).
To prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color
of state law deprived him of a right secured by the Constitution or laws of the United
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States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under
color of state law if he misuses or abuses official power and if there is a nexus between
the victim, the improper conduct, and the defendant’s performance of official duties.
Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
“Personal involvement is an essential element of a civil rights cause of action.”
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

There is no vicarious or

respondeat superior liability of supervisors under section 1983. Thompkins v. Belt, 828
F.2d 298, 303-04 (5th Cir. 1987). See also Carnaby v. City of Houston, 636 F.3d 183,
189 (5th Cir. 2011) (the acts of subordinates do not trigger individual § 1983 liability for
supervisory officials). For a supervisor to be liable under § 1983, the plaintiff must show
that (1) the supervisor failed to supervise or train the subordinate official; (2) a causal
link exists between the failure to train or supervise and the constitutional violation; and
(3) the failure to train or supervise amounts to deliberate indifference to the plaintiff’s
constitutional rights. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Establishing a supervisor’s deliberate indifference generally requires a plaintiff to
demonstrate “at least a pattern of similar violations.” Rios v. City of Del Rio, Tex., 444
F.3d 417, 427 (5th Cir. 2006) (citations omitted).
B.

Qualified immunity.

Defendant Monroe moves for summary judgment on the grounds of qualified
immunity. (D.E. 54, pp. 7-14). See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The
[qualified immunity] entitlement is an immunity from suit rather than a mere defense to

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liability; and like an absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial.”) (emphasis in original).
The doctrine of qualified immunity affords protection against individual liability
for civil damages to officials “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). When a defendant invokes the defense of qualified immunity, the
burden shifts to the plaintiff to demonstrate the inapplicability of the defense.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). To
discharge this burden, the plaintiff must satisfy a two-prong test.” Atteberry v Nocana
Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005). First the plaintiff must claim that the
defendants committed a constitutional violation under current law. Id. (citation omitted).
Second, the plaintiff must claim that defendants’ actions were objectively unreasonable in
light of the law that was clearly established at the time of the actions complained of. Id.
While it will often be appropriate to conduct the qualified immunity analysis by
first determining whether a constitutional violation occurred and then determining
whether the constitutional right was clearly established, that ordering of the analytical
steps is no longer mandatory. Pearson, 555 U.S. at 236 (receding from Saucier v. Katz,
533 U.S. 194 (2001)).
Step 1: Violations of a constitutional right.
(1)

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Due process violation.

Plaintiff claims that his due process rights were violated when he was placed in
“solitary confinement” without formal charges brought against him or a hearing to
contest those charges.
Generally speaking, due process protections attach only to those punishments that
impose an atypical and significant hardship in relation to ordinary incident of prison life,
or to those that extend the length or duration of confinement. Sandin v. Conner, 515 U.S.
472, 484-86 (1995). The Fifth Circuit has held that “administrative segregation, without
more, simply does not constitute a deprivation of a constitutionally cognizable liberty
interest.” Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir.1996) (quoting Luken v. Scott,
71 F.3d 192, 193 (5th Cir.1995)). Furthermore, the protections afforded by the Due
Process Clause do not extend to “every change in the conditions of confinement” which
are adverse to a prisoner. Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir.1997). Only
when a prisoner demonstrates “extraordinary circumstances” may he maintain a due
process challenge to a change in his custodial classification. Sandin, 515 U.S. at 484.
Cases where segregated confinement is sufficiently atypical to implicate a due
process liberty interest involve circumstances that are much harsher than those presented
here. For example, in Wilkerson v. Stalder, 329 F.3d 431 (5th Cir. 2003), the Fifth
Circuit held that due process might have been violated where the plaintiff had been kept
on lockdown status for thirty years. Id., 329 F.3d at 436 (remanding for determination
whether such confinement was “atypical” under Sandin). In another case, the Supreme
Court held that transfer to the Ohio “Supermax” facility implicated a liberty interest, in
part, because the conditions there were “more restrictive than any other form of
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incarceration in Ohio.” Wilkinson v. Austin, 545 U.S. 209, 214 (2005). The Wilkinson
Court noted that, at the Supermax facility, “almost all human contact is prohibited.” Id.
at 223. Ohio Supermax prisoners are kept in single cells with solid metal doors that
prevent communication from one cell to another; prisoners take all their meals alone in
their cells rather than a common area; and “opportunities for visitation are rare” and are
conducted through glass walls. Id. at 223-24. Ohio Supermax inmates spend 23 hours a
day alone in their cells, where a light remains on at all times. Id. at 224. Moreover,
confinement at the Supermax facility is indefinite, and otherwise eligible inmates are
disqualified for parole consideration. Id. These conditions and others were sufficiently
extraordinary that the Supreme Court concluded prisoners had a liberty interest in
avoiding assignment to the Supermax facility. Id.
The thirty-year confinement and extreme conditions in Wilkinson are
distinguishable from the present facts. Plaintiff was held in a solitary cell for ten (10)
days. (D.E. 54-5, p. 4). Plaintiff admits that on June 21, 2013, he engaged in a heated
exchange with Warden Monroe and other prison officials regarding Juma’ah services
being moved to the Multipurpose room, ending with Plaintiff submitting to hand
restraints. (D.E. 59-1, Plaintiff’s Aff’t at ¶¶ 5 – 13). Plaintiff was advised that he was
being placed in PHD and Warden Monroe told Captain Stroleny to charge him with “all
appropriate offenses” for his disruptive behavior. (D.E. 54-2, Monroe Aff’t at ¶ 5).
Plaintiff was charged with Offense 24, refusing or failing to obey orders; Offense 8.0 riot,
inciting other inmates to disobey orders; and Offense 27.0, being out of place. (D.E. 545, p. 4). Plaintiff was taken for his PHD physical. (D.E. 54-10, pp. 3-6). However, PHD
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had no cells available, so the decision was made to place Plaintiff in a solitary cell in 11
building. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 14).
Plaintiff claims that Warden Monroe instructed the other officers to place Plaintiff
in solitary confinement while Warden Monroe contends that decision was left to the
escorting officers. (Compare D.E. 59-1, Plaintiff’s Aff’t at ¶ 14 with D.E. 54-2, Monroe
Aff’t at ¶ 5). However, this dispute does not raise a genuine issue of a material fact
because, even if Warden Monroe ordered that Plaintiff be placed in a solitary cell, he was
not placed in solitary confinement. The evidence shows that Plaintiff was simply housed
in a designated solitary cell, but he was not in solitary confinement. His classification
records note that, while he was placed in the solitary cell, he was in PHD status under the
authority of Captain Stroleny. (D.E. 54-5, p. 4). Warden Gary Currie, MCU Senior
Warden, testifies that “[s]olitary cells are similar to PHD cells in terms of the size, single
occupancy, and no air conditioning. To facilitate with the air circulation, additional fans
are placed on the cellblock hallways.” (D.E. 54-3, Currie Aff’t at ¶ 8). Warden Currie
continues:
Even though Mr. Kearney was housed in a solitary cell, he was treated as a
PHD offender. He had access to the same daily activities and privileges as general
population offenders but in a different manner. These activities and privileges
included: 1) in-cell meals; 2) showers; 3) non-contact visitation each week;
4)commissary every two weeks for regular purchase items; 5) out-of-cell
recreation each day; 6) basic personal property items; 7) access to general library
books and law library books; 8) in-cell correspondence courses; and 9) daily
access to medical care…. As a level 1 PHD offender, Mr. Kearney was allowed to
possess the following additional personal property items: one state-issued razor,
commissary items, general library books, in-cell arts and craft items and genderrelated items.
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(D.E. 54-3, Currie Aff’t at ¶ 10). Plaintiff does not contest Warden Currie’s testimony.
Plaintiff objects to the fact that he was held in a solitary cell without being
formally charged and found guilty of a disciplinary violation. Although holding Plaintiff
in a solitary cell may be viewed as punitive, it similarly did not “present a dramatic
departure from the basic conditions” of his sentence.

Sandin makes clear that no

particular process is required for punishment that affects only the quality of the
confinement rather than the quantity of confinement.

Id.

Atypical and significant

hardships are those deprivations which “clearly impinge on the duration of confinement.”
Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (quoting Sandin, 515 U.S. at 483-84).
Plaintiff has failed to make any showing that the time spent in a solitary cell extended his
total time in prison or otherwise resulted in “atypical, significant hardships,” and his mere
placement in a solitary cell under PHD status, even without being charged or found guilty
of an offense, fails to state a cognizable due process claim. See e.g. Samford v. Staples,
249 Fed. Appx. 1001, 1004 (5th Cir. 2007) (temporary solitary confinement, disciplinary
sanctions of curtailed recreation and commissary privileges, assignment of extra duty,
and a reduction in his classification status did not represent atypical or significant
hardships and did not infringe upon a constitutionally protected liberty interest); Clark v.
Stalder, 103 F.3d 126 (5th Cir. 1996) (unpublished) (citing Bulger v. U.S. Bureau of
Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (“prison classification and eligibility for
rehabilitation programs are not directly subject to ‘due process’ protections”). Plaintiff’s
allegations fail to raise cognizable due process claims.
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(2)

Eighth Amendment.

Plaintiff claims that the conditions in the solitary cell violated the Eighth
Amendment. He claims that the cell was excessively hot and humid, that he was denied a
personal fan, and that he became dizzy and faint because of the heat.
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const.
amend. VIII. Prison officials must provide humane conditions of confinement; ensure
that inmates receive adequate food, clothing, shelter, and medical care; and take
reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S.
825, 832 (1994). Conditions that result in “unquestioned and serious deprivations of
basic human needs” or “deprive inmates of the minimal civilized measure of life’s
necessities” violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8-10
(1992); Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
The Supreme Court has developed a two-part analysis to govern Eighth
Amendment challenges to conditions of confinement.

First, under the “objective

component,” a prisoner must prove that the condition he complains of is sufficiently
serious to violate the Eighth Amendment. Hudson, 503 U.S. at 8. The challenged
condition must be “extreme.” Id. at 9. While an inmate “need not await a tragic event”
before seeking relief,” Helling v. McKinney, 509 U.S. 25, 33 (1993), he must at the very
least show that a condition of his confinement “pose[s] an unreasonable risk of serious
damage to his future health” or safety. Id. at 35. Moreover, the Eighth Amendment
requires more than a scientific and statistical inquiry into the seriousness of the potential
harm and the likelihood that such injury will actually be caused by exposure to [the
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challenged condition of confinement]. Id. It also requires a court to assess whether
society considers the risk that the prisoner complains of to be so grave that it violates
contemporary standards of decency to expose anyone unwilling to such a risk. Id. In
other words, the prisoner must show that the risk of which he complains is not one that
today’s society chooses to tolerate. Id. at 36. The Eighth Amendment thus guarantees
that prisoners will not be “deprive[d] ... of the minimal civilized measure of life’s
necessities.” Rhodes, 452U.S. at 347.
Second, the prisoner must show that the defendant prison officials “acted with a
sufficiently culpable state of mind” with regard to the condition at issue. Hudson, 503
U.S. at 8. The proper standard is that of deliberate indifference. Wilson v. Seiter, 501
U.S. 294, 303 (1991). Negligence does not suffice to satisfy this standard, id. at 305, but
a prisoner need not show that the prison official acted with “the very purpose of causing
harm or with knowledge that harm would result.” Farmer, 511 U.S. at 835. In defining
the deliberate indifference standard, the Farmer Court stated:
[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; 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.
Id. at 837.

Furthermore, the official may escape liability for known risks “if [he]

responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at
844.

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Plaintiff claims Warden Monroe knew he was in a solitary cell and knew that he
was exposed to extreme heat and dangerous temperatures that made him sick. However,
Warden Monroe testifies that, after Plaintiff was escorted away from the Multipurpose
room, he had no knowledge of where Plaintiff was housed and was not made aware of his
complaints until he received Plaintiff’s Step 1 grievance. (D.E. 54-2, Monroe Aff’t at ¶ ¶
5-6). However, even if Warden Monroe was aware of Plaintiff’s allegation that he was
placed in a hot, humid cell that made him feel dizzy and nauseous for several of fourteen
days, this allegation does not rise to the level of an Eighth Amendment violation. In
support of his motion for summary judgment, Warden Monroe offers the affidavit of Dr.
Kathryn Means who is currently the TDCJ Director of Quality Monitoring and
compliance. (D.E. 54-4, Means Aff’t at ¶ 4). Dr. Means testifies that, as a consequence
of being in PHD, Plaintiff was seen daily by medical staff June 21, 2013 through July 4,
2013. (D.E. 54-4, Means Aff’t at ¶ 7). She testifies that: “Documentation reflects that
every day he was alert and oriented to person, place, and time. His appearance, behavior
and verbalization were appropriate to his situation. He had no health complaints and
there was no indication of new trauma.” (D.E. 54-4, Means Aff’t at ¶ 7). (See also, D.E.
54-10, p. 6, Plaintiff’s medical record, Solitary/Prehearing Flow sheet showing that
Plaintiff was seen by medical staff each day from June 21, 2013 through July 3, 2013).
In addition to being seen by medical each day, Plaintiff did not submit a SCR while
housed in the solitary cell complaining of dizziness or nausea from the heat. Moreover,
Plaintiff admits that, by the first night he was released from the solitary cell, he no longer
felt ill. (D.E. 59-1, Plaintiff’s Aff’t at ¶ 20). In addition, his subsequent medical records
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do not show that he later complained of any alleged injury from his time in the solitary
cell. Being uncomfortable for 14 days in a hot stuffy cell, while simultaneously being let
out of his cell for recreation and showers, and checked by medical daily, is not the type of
condition that “shocks the conscious of mankind” or equates to a denial of the minimal
civilized necessities of life. 7 See Hutto v. Finney, 437 U.S. 678, 686-87 (“the length of
confinement cannot be ignored. … A filthy overcrowded cell … might be tolerable for a
few days and intolerably cruel for weeks or months.”).
Plaintiff’s placement in a solitary cell for fourteen days, while provided privileges
and daily medical attention, did not violate the Eighth Amendment.
Step 2 – Objective reasonableness.
Warden Monroe argues that, even if the Court were to find Plaintiff’s
constitutional rights were violated, he is entitled to qualified immunity because his
actions were objectively reasonable in light of the law that was clearly established at the
time of the events forming Plaintiff’s lawsuit. Anderson, 483 U.S. at 639-40; Freeman v.
Gore, 483 F.3d 404, 410-11 (5th Cir. 2007). The second step in the qualified immunity
analysis is best understood as two distinct inquiries: (1) what was the clearly established
law at the time Plaintiff was placed in a solitary cell without a disciplinary hearing and
held there for fourteen days; and (2) were Warden Monroe’s actions objectively
reasonable in light of that clearly established law? See Hare v. City of Corinth, Miss.,

7

This Court is aware of, and sympathetic to, the complaints of extreme heat by inmates the McConnell and Garza
Units in Beeville, Texas. See Hinojosa v. Livingston, 2014 WL 1276190 (S.D. Tex., Mar. 27 2014) (unpublished)
(denying TDCJ officials’ motion to dismiss wrongful death action of family of inmate with pre-existing conditions
making him more susceptible to excessive heat); (Blackmon v. Kukua, 758 F. Supp. 2d 398 (S.D. Tex. 2010)
(denying prison officials’ summary judgment where Garza unit dorms exceeded 100 degrees for 27 days).

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135 F.3d 320, 326 (5th Cir. 1998). At the summary judgment stage, a plaintiff must
present evidence to raise a fact issue “material to the resolution of the questions whether
the defendants acted in an objectively reasonable manner in view of the existing law and
facts available to them.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.
1993).
It was well established law on June 21, 2013 that no due process is required or
owed to an offender before he is placed in administrative segregation. Sandin, 515 U.S.
484-86; Hernandez v. Velasquez, 522 F.3d 556, 562, 562-63 (5th Cir. 2008) (reiterating
that prison officials should be afforded the “widest possible deference” in classifying
prisoners’ custodial status as necessary to maintain security and preserve internal order,
and in the specific instance of administrative segregation, concluding it to be “an incident
of ordinary prison life,” and as such, never a ground for a constitutional claim). In light
of this clearly established rule, Warden Monroe acted reasonably when Plaintiff was
placed in a type of administrative segregation, PHD status, following the dispute over the
Multipurpose room. When the PHD cells were unavailable, it was reasonable to place
Plaintiff in a solitary cell, where he remained under PHD status. (D.E. 54-3, Currie Aff’t
at ¶ 10). Warden Monroe’s actions were objectively reasonable.
Plaintiff claims that Warden Monroe knew his solitary cell was hot and humid in
violation of the Eighth Amendment.

However, as previously discussed, while the

Constitution forbids inhumane prisons, it does not mandate comfortable ones. Farmer,
511 U.S. at 832, quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981). In this case, the
conditions complained of, heat and humidity, were not so serious as to deprive Plaintiff
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of the minimal civilized measures of life’s necessities. Herman v. Holiday, 238 F.3d 660,
664 (5th Cir. 2001). To the contrary, as a PHD status prisoner, Plaintiff had daily out-ofcell recreation and showers. (D.E. 54-3, Currie Aff’t at ¶ 10). There were fans in the hall
to help with air circulation. (D.E. 54-3, Currie Aff’t at ¶ 8). He was assigned to PHD for
a finite amount of time and released. (D.E. 54-5, p. 4). All of these factors establish that
Plaintiff’s confinement in the solitary cell under PHD status did not violate the Eighth
Amendment, and Warden Monroe’s actions were objectively reasonable under the clearly
established law.
VI.

CONCLUSION.
Warden Monroe has demonstrated that there is no genuine issue of a material fact

that he did not violate Plaintiff’s due process or Eighth Amendment rights concerning his
placement in a solitary cell for fourteen days.

Accordingly, it is respectfully

recommended that the Court grant Warden Monroe’s motion for summary judgment
(D.E. 54) and dismiss with prejudice Plaintiff’s claims against this Defendant.
The Court should not enter final judgment because Plaintiff’s RLUIPA claim
regarding his right as a Muslim to wear a beard remains pending.
Respectfully submitted this 13th day of August, 2015.

___________________________________
Jason B. Libby
United States Magistrate Judge

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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy
of the Memorandum and Recommendation, a party may file with the Clerk and serve on
the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

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