Shafer v. Sanchez

Filing 74

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS 13 Memorandum and Recommendations and denying re: 2 MOTION for Preliminary and Permanent Injunction. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(vrios, 2)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

RICHARD SCOTT SHAFER,
Plaintiff,
VS.
JERRY SANCHEZ, et al.,
Defendants.

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January 17, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:22-CV-00049

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
DENYING PLAINTIFF’S MOTION FOR
PRELIMINARY AND PERMANENT INJUNCTIONS
Plaintiff Richard Scott Shafer is a state prisoner incarcerated at the Texas
Department of Criminal Justice-Criminal Institutions Division (TDCJ) McConnell Unit in
Beeville, Texas. D.E. 2. On April 19, 2022, United States Magistrate Judge Julie K.
Hampton issued a Memorandum and Recommendation (M&R, D.E. 13), recommending
that Shafer’s motion for preliminary and permanent injunctions (D.E. 2) be denied.
Plaintiff timely filed his objections (D.E.14), each of which is addressed below.
I. General Objections
First, Shafer repeatedly states that the Magistrate Judge’s analysis was arbitrary and
prejudiced, contending that she ignored evidence and did not follow precedent. See D.E.
14, pp. 3-7. The Court finds that the Magistrate Judge properly applied the binding legal
standards. This objection, which fails to identify a specific error in the M&R’s findings of

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fact or conclusions of law, is improper. See Battle v. U.S. Parole Comm’n, 834 F.2d 419,
421 (5th Cir. 1987). Shafer’s first objection is therefore OVERRULED.
II. Substantial Likelihood of Success
A. Extreme Temperature
Second, Shafer objects to the M&R by citing Cole v. Collier, No. 4:14-CV-1698,
2017 WL 3049540 (S.D. Tex. July 19, 2017), as both legal support and factual evidence
regarding the medical effects of heat exposure and the ineffectiveness of TDCJ heat
mitigation efforts. See D.E. 14, pp.3-4. He claims that Cole is binding precedent and that
the Magistrate Judge erred by not similarly granting him an injunction. Id. at 7.
In Cole, the court ordered a preliminary injunction in a class action against the TDCJ
Wallace Pack Unit for an Eighth Amendment violation regarding extreme heat exposure
after reviewing hundreds of exhibits and thirteen days of testimony. 2017 U.S. Dist.
LEXIS 112095 at *153. The plaintiffs presented dozens of fact and expert witnesses who
testified regarding the plaintiffs’ specific medical conditions and the harmful effects of
heat, as well as the conditions specific to the Wallace Pack Unit and the knowledge and
policies of the defendants. See id. Shafer is at a different TDCJ facility and his claims do
not have the support necessary to establish a substantial likelihood of success with respect
to his deliberate indifference to excessive heat claim at this stage. The Court therefore
OVERRULES his second objection.
Third, Shafer objects to the M&R’s finding that there was no evidence that
Defendants were aware of his health issues related to heat exposure and then consciously
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disregarded that risk. D.E. 14, p. 2. He cites the fact that his name is on a heat-restricted
list that the officers are required to carry with them and that he filed grievances related to
being denied respite. Id. This evidence was before the Magistrate Judge. See D.E. 1, p. 3;
D.E. 1-1, pp. 1, 7, 25. It is sufficient to support that Defendants were at least aware of the
substantial risk of harm, and the Magistrate Judge erred by stating that there was “no
evidence” to support Shafer’s contentions. See D.E. 13, p. 7. To that extent, Shafer’s third
objection is SUSTAINED.
However, “deliberate indifference is an extremely high standard to meet.” Domino
v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001). Deliberate indifference
cannot be inferred merely from a negligent or even a grossly negligent response to a
substantial risk of serious harm. Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 458-59
(5th Cir. 2001). Shafer’s evidence at this time suggests negligence but falls short of
showing that Defendants consciously disregarded the risk, as is necessary for a finding of
deliberate indifference, because the heat restriction list that Shafer was on was a measure
taken to address any heat-related risk to which he might be exposed. Having conducted a
de novo review of this portion of the M&R, the Court FINDS that Shafer has failed to
show a substantial likelihood of success in regard to his excessive heat claim. See 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
Fourth, Shafer cites Webb v. Livingston, 618 F. App’x 201, 209 (5th Cir. 2015), for
the general proposition that prison officials can still violate the Eighth Amendment when
remedial measures are proven to be inadequate. D.E. 14, p. 6. But Shafer has not provided
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evidence of Defendants’ remedial measures in regard to the excessive heat claim, let alone
challenged their adequacy. See id. This objection does not dispute the M&R’s finding that
Shafer failed to show that Defendants consciously disregarded the risk of excessive heat.
See D.E. 13, p. 7. Shafer’s fourth objection is therefore OVERRULED.
B. Pest Infestation
Fifth, Shafer objects to the Magistrate Judge’s statement that “Plaintiff
acknowledges that prison officials took some remedial measures” to abate the pest concern.
D.E. 14, p. 3. The M&R reasoned that the fact that Defendants sprayed for pesticides
defeated the issue of deliberate indifference. See D.E. 13, pp. 6-7. Shafer has failed to
specifically and factually controvert the effectiveness of Defendant’s remedial measures
beyond claiming that they are inadequate. Without more evidence, Shafer’s conclusory
contention is insufficient to support a finding of deliberate indifference. See Amos v. Cain,
No. 4:20-CV-7-DMB-JMV, 2021 WL 1080518, at *13 (N.D. Miss. Mar. 19, 2021) (“Given
the lack of any evidence that the pest control service is futile, these services defeat a claim
of deliberate indifference.”). Shafer’s fifth objection is therefore OVERRULED.
Sixth, Shafer reiterates the facts before the Magistrate Judge and cites the same legal
standard as the M&R regarding pest infestation to contend that the Magistrate Judge erred.
See D.E. 14, p. 3; D.E. 13, p. 5. As the M&R found, these cases do not support Shafer’s
claim. See, e.g., Gasca v. Lucio, No. 1:20-CV-160, 2021 WL 4198405, at *6 (S.D. Tex.
May 24, 2021), report and recommendation adopted, No. 1:20-CV-160, 2021 WL
4192735 (S.D. Tex. Sept. 15, 2021) (dismissing plaintiff’s deliberate indifference claim for
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pest infestation because he did not plead facts showing an injury and he did not show that
defendants were aware of the conditions and chose to ignore them). Shafer’s sixth objection
is OVERRULED.
III. Irreparable Injury
A. Extreme Temperature
Seventh, Shafer cites Texas weather conditions along with testimony from Cole
concerning a different TDCJ facility and the effects of climate change to contest the
M&R’s finding that he did not allege irreparable injury in regard to the excessive heat
claim. D.E. 14, pp. 4-6. None of this evidence disputes the M&R’s finding that the
temperature conditions at his particular unit do not provide a current threat to his health.
See D.E. 13, p. 8. Shafer’s seventh objection is OVERRULED.
Eighth, to support his contention regarding irreparable harm, Shafer states the
proposition, “When an alleged deprivation of a constitutional right is involved, . . . most
courts hold that no further showing of irreparable injury is necessary.” D.E. 14, p. 5 (citing
ODonnell v. Harris Cnty., Tex., 251 F. Supp. 3d 1052, 1157 (S.D. Tex. 2017), aff'd as
modified, 882 F.3d 528 (5th Cir. 2018) and aff'd as modified sub nom. ODonnell v. Harris
Cnty., 892 F.3d 147 (5th Cir. 2018)). In ODonnell, the plaintiffs demonstrated a “clear
likelihood of success on the merits” for their constitutional claims, whereas Shafer has
made no such showing. See 251 F. Supp. 3d at 1157. Therefore, he is not entitled to any
presumption of injury. Shafer’s eighth objection is therefore OVERRULED.

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B. Pest Infestation
With regard to the pest infestation claim, Shafer does not object to the M&R’s
finding that he did not establish an irreparable injury. See D.E. 14. After reviewing the
M&R for clearly erroneous factual findings and conclusions of law, the Court adopts the
findings of the M&R that Shafer’s allegations of irreparable harm regarding the pest
infestation are speculative at this time. See United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989) (per curiam); D.E. 13, p. 8.
IV. Remaining Injunction Requirements
Ninth, Shafer selects quotes from the M&R that do not properly dispute the M&R’s
analysis that he failed to satisfy the remaining elements for a preliminary injunction. See
D.E. 14, p. 5. For example, Shafer states that if the TDCJ argues that the relief requested
would be “fiscally catastrophic,” then Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir.
1986), supports that inadequate resources can never be an adequate justification for
depriving any person of his constitutional rights. Id. But Defendants have not argued this,
and this did not factor into the M&R’s analysis, which reasoned that because Shafer’s
allegations do not amount to a constitutional violation at this stage, the Court should not
interfere at this time.

See D.E. 13, p. 9.

Shafer’s final objection is therefore

OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Shafer’s
objections, and all other relevant documents in the record, and having made a de novo
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disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
to which objections were specifically directed, the Court SUSTAINS Shafer’s third
objection and OVERRULES his remaining objections. The Court otherwise ADOPTS as
its own the findings and conclusions of the Magistrate Judge. Accordingly, Shafer’s
motion for preliminary and permanent injunctions is DENIED.
ORDERED on January 17, 2023.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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