Hicks v. Collier et al

Filing 39

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 22 Memorandum and Recommendations DENYING 3 MOTION for Temporary Restraining Order, DENYING Plaintiff leave to amend his complaint, DISMISSING all of Plaintiff's other claims. (Signed by Judge David S Morales) Parties notified. (aar2)

United States District Court
Southern District of Texas

ENTERED
March 11, 2025

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SEAN HICKS,
Plaintiff,
V.
BRYAN COLLIER, et al.,
Defendants.

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Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:24-CV-00126

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Mitchel Neurock's Memorandum and Recommendation
("M&R"). (D.E. 22). The M&R recommends that the Court:
(1) Retain several of Plaintiff's Eighth Amendment claims;
(2) Dismiss all of Plaintiff's other claims;
(3) Deny Plaintiff's motion for a temporary injunction;
(4) Deny Plaintiff leave to amend.
(D.E. 22, p. 58-59). Plaintiff has filed written objections to the M&R. (D.E. 29).
After review, the Court OVERRULES Plaintiff's objections, (D.E. 29), and ADOPTS the
findings and conclusions of the M&R, (D.E. 22).
When a party objects to the findings and recommendations of a magistrate judge, the district
judge "shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C). A party must
point out with particularity any alleged errors in the magistrate judge's analysis. Pelko v. Perales, No.
2:23-CV-00339, 2024 WL 1972896, at* I (S .D. Tex. May 3, 2024) (Ramos, J.). Objections that merely
re-urge arguments contained in the original briefing are not proper and will not be considered. Edmond
v. Collins, 8 F .3d 290, 293 n.7 (5th Cir. 1993). Moreover, "[f]rivolous, conclusive or general objections
need not be considered by the district court." Nettles v. Wainwright, 677 F .2d 404, 410 n.8 (5th Cir.

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1982) (en bane) (overruled on other grounds by Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415,
1416 (5th Cir. 1996) (en bane)) (superseded by statute on other grounds, 28 U.S.C. § 636(b)(l)).
As to any portion for which no objection is filed, a district court reviews for clearly erroneous
factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)
(per curiam).
Plaintiff raises numerous objections to the M&R. See generally (D.E. 29). The Court addresses
each in tum .
Plaintiff first objects to the M&R's statement that after he suffered a heat stroke on August 1,
2024, he was taken away by medical staffers on a stretcher. Id. at 1. Plaintiff requests that the Court
clarify that " Sargent Alanis denied respite to Plaintiff'' before he was taken by stretcher. Id. This
clarification regarding the time that Sargent Alanis allegedly denied respite is not material to the
M&R' s analysis. Accordingly, the Court OVERRULES this objection.
Plaintiff next objects to the dismissal of his ADA/RA claim. Id. The M&R recommends that
the Court dismiss Plaintiff's ADA and RA claims because Plaintiff's "claims hinge upon TDCJ's
alleged failure to provide him with adequate medical care,"- a claim not available under Fifth Circuit
precedent. (D.E. 22, p. 53) (quoting Wagner v. Harris Cnty., Tex., No. 4:23-CV-2886, 2024
WL4438668, at *10 (S.D. Tex. Oct. 7, 2024) (Ellison J.)) . Although the Court empathizes with the
facts Plaintiff presents in his objection, those facts do not demonstrate that Plaintiff has stated a viable
claim under the ADA/RA because they do not show that Plaintiff is complaining of something other
than the alleged failure to provide him with adequate medical care for his back condition and heatmitigation needs. See (D.E. 29, p. 1). The Court OVERRULES this objection.
Plaintiff also objects to the dismissal of his claim against Warden Samiago and Warden Tovar
regarding heat-related conditions. Id. The M&R recommends dismissing Plaintiff's Eighth
Amendment claims against Wardens Samiago and Tovar because Plaintiff fails to plausibly allege that

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they "possess policymaking authority to direct and implement heat mitigation measures" as required
by Ex Parte Young. (D.E. 22, p. 28- 29). Although in hi s objections Plaintiff alleges that, as wardens,
both Warden Samiago and Warden Tovar "hold and have decision making ability" by virtue of their
"training of police and [rules] and law ofTDCJ[,]" this does not amount to an allegation that either has
the power to set policy for the prison. (D.E. 29, p. 1). In other words, because Wardens Samiago and
Tovar lack the power to change the prison ' s heat-mitigation policy, Plaintiff has no viable claim against
them for injunctive relief seeking a change of the heat-mitigation policy. And, although a "warden is
responsible for any going ons at the [prison]," Id. at 2, 42 U.S.C. § 1983 does not authorize a claim for
vicarious liability. Thompkins v. Belt, 828 F.2d 298, 303- 04 (5th Cir. 1987). Accordingly, the Court

OVERRULES Plaintiff's objection to the dismissal of his suit against Warden Samiago and Warden
Tovar for heat-related conditions.
Next, Plaintiff objects to "Denial of respite and cool showers[.] " (D.E. 29, p. 2). In the section
of the M&R titled same, Magistrate Judge Neurock recommends the Court retain Plaintiff's deliberate
indifference claims for denial of respite against Sergeant Florez, Officer Balderez, Officer Garner, and
Sergeant Alanis, and Plaintiff' s claims seeking prospective injunctive relief in the form of airconditioned housing against Directors Collier and Holmes in their official capacities. (D.E. 22, p. 3241 ). The M&R recommends dismissal of all other claims against those Defendants. Id. The factual
allegations Plaintiff raises in his objections are troubling and the Court is concerned. (D.E. 29, p. 3).
Plaintiff can litigate these allegations in the retained claims outlined above. But, for the following
reasons, the Court OVERRULES Plaintiff's objections regarding this section.
With respect to Sergeant Florez, Plaintiff objects to the dismissal of his claims alleging failure
to provide adequate heat-mitigation measures, failure to provide medical care, and any claims against
Sergeant Florez in his official capacity. (D.E. 29, p. 3). However, Plaintiff does not allege that Sergeant
Florez has policymaking authority, does not explain what medical care Sergeant Florez allegedly

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denied him, and does not seek any prospective injunctive relief against Sergeant Florez. Accordingly,
the Court OVERRULES Plaintiffs objection with respect to Sergeant Florez.
Regarding Officer Balderez, Plaintiff objects to the dismissal of his official-capacity claim and
his claim for denial of medical treatment. Id. Again, Plaintiff does not explain what medical care
Officer Balderez allegedly denied, and he does not seek prospective injunctive relief. See id. The Court

OVERRULES Plaintiffs objection regarding Officer Balderez.
As for Officer Garner, Plaintiff levels the same official-capacity and denial-of-medical
objection as for Officer Balderez. Id. For the same reasons (lack of prospective injunctive relief and
failure to explain what medical care Officer Balderez allegedly denied), the Court OVERRULES
Plaintiffs objection regarding Officer Garner.
Finally, Plaintiff objects to the M&R's recommendation regarding dismissal of his claim
against Sergeant Alanis in her official capacity. Id. Plaintiff alleges that Sergeant Alanis "was working
a job under the color of law[,]" was trained in all TDCJ policies and Texas laws, and was informed
three times of Plaintiffs maladies and went as far as overruling a Lieutenant who had given Plaintiff
respite. Id. Notwithstanding these allegations, Plaintiff has not pied a claim for prospective injunctive
relief, as required to sustain an official-capacity suit. Accordingly, the Court OVERRULES Plaintiffs
objection regarding Sergeant Alanis.
Plaintiff also objects to the dismissal of his lawmakers' responsibility claim, arguing that
lawmakers should be held responsible when laws are broken. Id. at 4. The M&R recommends dismissal
of Plaintiffs claim against unidentified lawmakers because Plaintiff does not allege any facts
indicating that these unidentified individuals play any role in the enforcement of laws or policies.
(D.E. 22, p. 40). Plaintiffs argument, although compelling, does not offer any such factual allegations.
Accordingly, the Court OVERRULES this objection.
Plaintiff then objects to the M&R's enumeration of allegations relating to unnamed UTMB

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employees, guards, and ranks on page eleven. (D.E. 29, p. 4). That portion of the M&R does not contain
a recommendation. See (D.E. 22, p. 11). To the extent the names become relevant, Plaintiff can provide
them during the course of litigating his retained claims. The Court OVERRULES this objection.
Plaintiff objects to the dismissal of his claim regarding the alleged understaffing of McConnell
unit. (D.E. 29, p. 4). The M&R recommends dismi ssal of this claim because Plaintiff failed to allege
that Director Collier implemented a policy to understaff TDCJ. (D.E. 22, p. 45). Plaintiff argues that
McConnell Unit is understaffed by its "own omition," and that the Unit's employees recognize the
understaffing through their own statements. (D.E. 29, p. 4). While Plaintiffs argument amounts to an
allegation that the Unit is understaffed, it does not allege that there is a policy, implemented by Director
Collier, of understaffing. See id. Accordingly, the Court OVERRULES this objection.
Finally, Plaintiff objects to " international treaties." Id. The M&R recommends dismissal of
Plaintiff's treaty-violation claims because Plaintiff failed to identify the treaty that was violated and
failed to identify a private right of action (i.e., a treaty provision authorizing Plaintiff to sue for
violations) under any treaty. (D.E. 22, p. 54). Plaintiffs objection does not cure those deficiencies. See
(D.E. 29, p. 4). Accordingly, the Court OVERRULES Plaintiffs objection.
Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable
law, and having made a de novo review of the portions of the M&R to which Plaintiffs objections are
directed, 28 U.S.C. § 636(b)(l)(C), the Court OVERRULES Plaintiff's objections, (D.E. 29), and

ADOPTS the findings and conclusions of the M&R, (D.E. 22). Accordingly, the Court:
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RETAINS the following claims:
o

Plaintiffs Eighth Amendment heat-related conditions of confinement claim
against Director Collier and Director Holmes in their individual capacities, and
in their official capacities for prospective injunctive relief;

o

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Plaintiffs Eighth Amendment deliberate-indifference claims against Sergeant

Florez, Officer Balderez, and Officer Garner in their individual capacities for
their alleged denial ofrespite to Plaintiff on May 9, 2024;
o

Plaintiff's Eighth Amendment deliberate-indifference claim against Sergeant
Alanis in her individual capacity for her alleged denial of respite, cool shower,
or medical care to Plaintiff on August 1, 2024;

o

Plaintiff's Eighth Amendment claims against Director Collier and Director
Holmes in their official capacities for prospective injunctive relief in the fonn
of air-conditioned housing that does not endanger Plaintiff's health or safety;
and

o

Plaintiff's Eighth Amendment claim against unknown TDCJ employees m
their official capacities for prospective injunctive relief, based on their creation
and implementation of the heat scoring system.

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DISMISSES all of Plaintiff's other claims.

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DENIES Plaintiff leave to amend his complaint.

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DENIES Plaintiff's motion for a temporary injunction. (D.E. 3).

SO ORDERED.

DA:
.MORALES
UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas
March ;c,-JA:2025

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