Tuft v. The State Of Texas et al

Filing 90

MEMORANDUM OPINION AND ORDER GRANTING 80 MOTION to Strike; GRANTING IN PART DENYING IN PART 61 MOTION for Summary Judgment. Defendants are ORDERED to file by 4/10/2009 an amended motion for summary judgment as to plaintiffs Fourth Amendment claim regarding the female officers participation in the 2005 strip search and his challenge to the constitutionality of AD 03.22. Any and all other pending motions are DENIED as moot: 71 MOTION to Compel Discovery, 69 MOTION for leave. This is an INTERLOCUTORY ORDER.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION R OBERT ALEXANDER TUFT, P l a i n t i ff , v. B RENDA CHANEY, et al., D e fen d a n ts. § § § § § § § § §

C IVIL ACTION NO. H-06-2529

M EMORANDUM OPINION AND ORDER P la in tif f , a state inmate proceeding pro se, filed this section 1983 lawsuit complaining o f violations of his civil rights by various prison officials and employees. Defendants filed a motion for summary judgment (Docket Entry No. 61), to which plaintiff filed a response (D o ck et Entry No. 73). The parties then exchanged a reply to the response (Docket Entry N o . 76), a surreply (Docket Entry No. 77), a response to the surreply (Docket Entry No. 81), an d a supplemental reply (Docket Entry No. 85). A f te r carefully reviewing the motion, the response, the related pleadings, the record, a n d the applicable law, the Court GRANTS IN PART and DENIES IN PART the motion for s u m m a ry judgment, and enters further orders, as follow. F a c tu a l Background and Claims P la in tif f , a state inmate incarcerated at the Jester III Unit of the Texas Department of C rim inal Justice (TDCJ), alleges that his constitutional and federal statutory rights were v io late d by (1) strip searches performed or observed by female officers; (2) deliberate

in d if f e re n c e to his serious medical needs; (3) deliberate indifference to his health and safety; a n d (4) violations of the Americans with Disabilities Act (ADA). He seeks declaratory and in ju n c tiv e relief and recovery of punitive damages. Defendants move for summary judgment d ism iss a l of these claims for lack of merit and/or failure to exhaust, and raise entitlement to q u a lif ie d immunity. D e f en d a n ts provided plaintiff an initial and supplemental disclosure of relevant d o c u m e n ts (Docket Entries No. 56, 57), and the Court finds that plaintiff was afforded a d e q u a te discovery to respond to the pending motion for summary judgment. Motion to Strike On June 25, 2008, the Clerk of Court docketed a pleading entitled, "Plaintiff's First S u p p lem en t to His Response to Defendant's Motion for Summary Judgment" (Docket Entry N o . 78). The document was typewritten and unsigned, and attached what purported to be th i rty- e ig h t pages of unauthenticated photocopies of 2004 ADA architectural guidelines. D e f en d a n ts filed a motion to strike the photocopies as unauthenticated and incompetent s u m m a ry judgment evidence that was not probative of any exhausted, relevant issue. (D o c k e t Entry No. 80). A flurry of responses and counter-responses ensued (Docket Entries N o . 82, 83, 84, 86, 87, 88, 89), which will now culminate in this Court's granting of the m o tio n to strike. Although the supplement (Docket Entry No. 78) attempts to incorporate its a tta c h e d documents into the document verification appearing in plaintiff's original response to the motion for summary judgment, the supplement is unsigned. As such, it cannot act as

2

a n incorporation by reference into an existing pleading, as plaintiff has not evinced such in c o rp o ra tio n by his signature. Regardless, given the Court's disposition of plaintiff's ADA c la im s , infra, these unauthenticated documents are without relevance. T h e motion to strike (Docket Entry No. 80) is GRANTED. Summary Judgment Standard of Review S u m m a r y judgment is proper if the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with any affidavits filed in support of the motion, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to ju d g m e n t as a matter of law. FED. R. CIV. P. 56(C). A factual dispute will preclude a grant o f summary judgment if the evidence is such that a reasonable jury could return a verdict for th e nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The tria l court may not weigh the evidence or make credibility determinations. Id. Conclusional alleg atio n s, speculation, improbable inferences, or a mere scintilla of evidence, however, are in s u f f ic ie n t to defeat a summary judgment motion. See Michaels v. Avitech, Inc., 202 F.3d 7 4 6 , 754-55 (5th Cir. 2000). Claims Regarding Strip Searches P la in tif f complains that, on February 26, 2005, he was strip searched in the presence o f a female prison officer, who was "present and participated in a visual cavity search of P l a i n t i f f with no extraordinary circumstances present." (Docket Entry No. 21, p. 11.) S p e c if ica lly, plaintiff states that he and six other inmates were asked to strip, open their

3

m o u th s , lift their genitals, and expose their anuses in the presence of three male officers and th e one female officer. Id. He asserts that during a second strip search some two years later in 2007, he was within "direct line-of-sight of female officers" who may have seen him. P la in tif f claims that these two strip searches violated his Fourth Amendment right to be from u n re a s o n a b le searches because of the presence or participation of female officers. "A prisoner's rights are diminished by the needs and exigencies of the institution in w h ich he is incarcerated. He thus loses those rights that are necessarily sacrificed to l e g i t im a te penological needs." Moore v. Carwell, 168 F.3d. 234, 236-37 (5th Cir. 1999) (c ita tio n s omitted). However, the Fourth Amendment protects prisoners from searches and s e iz u re s that go beyond legitimate penological interests. Id. Searches of prisoners must be co n d u cted in a manner that is reasonable under the facts and circumstances in which they are p e rf o rm e d . Id. at 237. The test for a Fourth Amendment violation requires the balancing of th e need for the particular search and the invasion of rights that are a result of the search. B e ll v. Wolfish, 441 U.S. 520, 559 (1979); Moore, 168 F.3d at 237. Courts must consider the " sc o p e of the particular intrusion, the manner in which it is conducted, the justification for in itia tin g it, and the place in which it is conducted." Bell, 441 U.S. at 559. An inmate may re c o v e r nominal or punitive damages, despite lack of a physical injury, if he can successfully p ro v e that prison officials violated his Fourth Amendment rights. Hutchins v. McDaniels, 5 1 2 F.3d 193, 198 (5th Cir. 2007).

4

T h e 2007 strip search, in which plaintiff asserts he was potentially visible to female o f f ic e rs , did not constitute a violation of plaintiff's Fourth Amendment rights. As noted by d e f e n d a n ts in their motion for summary judgment, the Fifth Circuit has held that strip s e a rc h e s carried out in non-secluded areas of prisons and in the presence of prison employees o f the opposite sex are not unconstitutional. Tasby v. Lynaugh, 123 Fed. Appx. 614, 615 (5th C ir. 2005); Oliver v. Scott, 276 F.3d 736, 747 (5th Cir. 2002); Elliott v. Lynn, 38 F.3d 188, 1 9 0 -91 (5th Cir. 1994); Letcher v. Turner, 968 F.2d 508, 510 (5th Cir. 1992). The 2007 strip s e a rc h episode fell squarely within the parameters of these cases. Regarding the 2005 episode, however, plaintiff maintains that the female officer had s o m e level of participation in the strip search. The Fifth Circuit in Moore recognized that strip and cavity searches of male prisoners, carried out in non-emergency situations by female g u a rd s, can give rise to Fourth Amendment violations. 168 F.3d at 235-37. With respect to a n y potential Fourth Amendment claim, inmates do not have a right to be free from strip s e a rc h e s, which can be conducted by prison officials without probable cause provided that th e search is conducted in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 558-59 (1 9 7 9 ). The probative summary judgment in the instant case establishes that, on February 25, 2 0 0 5 , the day before the strip search, unknown inmates were unlawfully smoking cigarettes in plaintiff's prison dormitory. Prison officers discovered the security and safety breach, and im m e d ia te ly undertook an investigation. Cells were searched, inmates strip searched, and 5

s o m e cigarettes were found. The investigation continued into the next day, when all of the d o r m cells were again searched and inmates questioned and strip searched. Prior to being c a lled in for strip searches, inmates were held in a chainroom, where they were told that "if [ th e y] did not give names and information on who was smoking in the back of [the] dorm, [ th e y] could be expecting to be subject to this type of treatment until [they] cooperate." (D o c k e t Entry No. 74, Affidavit of Inmate Gary Willougby.) Plaintiff and five other inmate re sid e n ts of the dorm were called into the administration office as a group for a strip search. A c c o rd in g to two inmate affidavits submitted by plaintiff, the strip search episode unfolded a s follows: [ A female lieutenant] told us to get out of our clothes. This is a fairly small o f f ic e for eleven people to be standing in. [She] went behind a small desk and s a t down. She was only a few feet from us and was looking directly at us. She to ld us again to `get out of 'em.' [Plaintiff] and [another inmate] started to a rg u e with her but she said that if we continued to hold out on who was sm o k in g that we could expect this on a regular basis. We would `ride the heat' f o r the smokers. [Plaintiff] said something about constitutional rights and Abu G h raib e , but [she] said to get out of them or go to [administrative segregation]. [ T h e female lieutenant] directed us on what to do. When we got undressed ­ strip p ed naked ­ she was telling us to open our mouths, lift our genitals, turn a ro u n d and spread our buttock cheeks, and show the bottom of our feet. She c o u ld have reached out and touched us. I felt coerced into doing what she said a n d felt I had no choice. Before, during, and after the search we were told that we would be called out a n d this would be repeated everytime (sic) someone was smoking in the dorm, u n til we told them who it was. (Docket Entry No. 42, Affidavit of Lavarro Jenkins.)

6

[ A female lieutenant] was sitting at a desk about four or five feet from me[.] [ T h e female lieutenant] was in clear line of sight of all inmates. The other four in m a te s were about six to eight feet away on the other side of the small office. [ T w o other officers] were conducting the search. [Another officer] was p ro v id in g security and [the female lieutenant] did not assist directly in the s e a rc h of our clothing, but did assist in the visual cavity search of our rectums a n d mouths. She was looking directly at us and was instructing us on what to d o next . . . We were told over and over that this would continue if we did not s n itc h on the other inmates who were smoking. (Id., Affidavit of Gary Willougby.) T h e parties do not dispute that the applicable prison regulation regarding inmate strip s e a rc h e s appears in Administrative Directive (AD) 03.22, which provides as follows: II. S trip Searches A t times it may be necessary to strip search offenders to ensure the s a f ety of offenders and staff and to detect the presence of contraband. S trip -se a rc h e s are to be used only when directed by specific unit/facility p o s t orders, or unit/facility departmental policy or when a supervisor b e lie v e s there is reasonable cause to warrant such a search. The search s h a ll be performed in a professional manner. Staff of the same gender s h a ll conduct the search. Gender specific requirements are as follows: A. F e m a le offenders shall not be strip-searched by, or in the visual p r e s e n c e of, male officers. F o r male offenders, if circumstances dictate that the search must b e conducted by staff of the opposite gender, such searches are a u th o riz e d under this policy only in extraordinary circumstances an d when approved by a supervisor. If, under ordinary c irc u m s ta n c es , a female officer is present in the vicinity of a m a le offender being strip-searched, the officer's duty is solely to provide security for the searching officer. The female officer s h a ll not actively participate in the strip-search.

B.

7

T o the extent plaintiff complains that one or both of his strip searches were conducted in violation of AD 03.22, it is well established that the violation of a prison policy or re g u la tio n , without more, does not rise to the level of a constitutional violation for purposes o f section 1983. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (determining, in the context of a section 1983 action, that "a prison official's failure to follow the prison's o w n policies, procedures or regulations does not constitute a violation of due process, if co n stitutio n al minima are nevertheless met."). P la in tif f additionally asserts that, because of the female officer's presence or p a rticip a tio n , the 2005 strip search violated his Fourth Amendment rights as it was "sexually c o e rc iv e " in nature. According to this argument, the strip search was nothing more than a s u b te rf u g e to sexually humiliate plaintiff and force him into "snitching" on the inmates who w ere smoking. Plaintiff states that this unlawful intent is implicit in the female officer's statem en t that "this would continue if we did not snitch on the other inmates who were s m o k in g ." The only evidence submitted by plaintiff in reference to this claim is the fact of th e event itself ­ that a female officer was involved and that the inmates were told that the ce ll and strip searches would continue until the unlawful smokers were located. The Court f in d s conclusory and unsupported plaintiff's allegation that the sole purpose of the female o f f ice r's presence during the strip search was to sexually coerce and humiliate him into d isclo sing information. Defendant is entitled to summary judgment dismissing plaintiff's F o u r th Amendment claim that the 2005 strip search was "sexually coercive." 8

Plain tiff also asserts, however, that AD 03.22 notwithstanding, his Fourth Amendment r ig h ts were violated by the female officer's participation in the strip search. In their motion f o r summary judgment, defendants initially sought summary judgment on the basis that the f e m a le officer observed, but did not participate in, the 2005 strip search. As this Court's re v ie w of the probative summary judgment evidence, however, reveals evidence to the c o n tra ry, summary judgment cannot be granted on this issue. Nor have defendants addressed in their motion for summary judgment plaintiff's challenges the constitutionality of AD 0 3 .2 2 . As these two issues have not been addressed in the current summary judgment p ro c e e d in g s , the Court requests further briefing. Accordingly, defendants are ORDERED to file an amended motion for summary judgment, within forty-five days from date of this o rd e r, addressing plaintiff's claims that the 2005 strip search violated his Fourth Amendment rig h ts based on participation of a female officer, and his challenge to the constitutionality of A D 03.22. Plaintiff may file a reply to the amended motion for summary judgment within th irty days thereafter. No further discovery motions or motions to supplement or amend may b e filed. Claims for Deliberate Indifference to Serious Medical Needs P la in tif f contends that defendants were deliberately indifferent to his serious medical n e e d s by (1) forcing him to walk and/or wait in lengthy and uncomfortable pill lines and the " c ag e ," an enclosed holding area for prisoners; and (2) allowing his "liver enzymes" and

9

h e p a titis C viral load to increase due to improper medical treatment. Defendants seek s u m m a r y judgment based on plaintiff's failure to exhaust these claims. D e f en d a n ts raised failure to exhaust in their answer (Docket Entry No. 43, p. 23), and m o v e for summary judgment under that affirmative defense.1 They argue specifically that p la in tif f failed to exhaust his complaints regarding any long waits in the pill lines and the c a g e he experienced between July 2004 and July 2006. Plaintiff states that he filed a Step 1 grievance on September 8, 2004, complaining of heat exhaustion after waiting in the cage (D o c k e t Entry No. 74, p. 23). However, the referenced grievance, dated September 17, 2004, re f le c ts no filing and processing information. Although plaintiff may correctly aver that p ris o n officials did not answer it, nothing shows that it was properly filed and received by th e prison officials, and hence, no exhaustion is shown. See Woodford v. Ngo, 548 U.S. 81 (2 0 0 6 ). In particular, plaintiff fails to show that the grievance did not violate (or was in co m p lian ce with) prison regulations limiting the number and timing of an inmate's g rie v a n c e s to one every seven days. Plaintiff states that he subsequently did not file any applicable Step 1 grievances until A u g u st and October of 2006. The Court's docket in this case shows that plaintiff filed this la w s u it in July of 2006. Accordingly, these particular grievances, filed after commencement o f the lawsuit, do not suffice as proof of exhaustion. The grievances referenced by plaintiff

Contrary to plaintiff's contention, the Fifth Circuit in Johnson v. Johnson, 385 F.3d 503, 516 n.7 (5th Cir. 2004) did not hold that prison officials waived exhaustion by stating in their answer that the inmate "may" have failed to exhaust administrative remedies.

1

10

a s filed and exhausted in 2002 do not suffice to exhaust plaintiff's complaints regarding his J u ly, 2004 to July, 2006 claims, as the subject matter and circumstances of the 2002 c o m p lain ts were different from those here complained of by plaintiff. In short, plaintiff fails to prove that he exhausted administrative grievances on his pill line and "cage" claims prior to filing this lawsuit, and defendants are entitled to summary judgment on their affirmative d e f e n se of failure to exhaust. D e f en d a n ts further argue that plaintiff failed to exhaust administrative remedies re g a rd in g his increased liver enzymes and hepatitis C viral load complaints. Underlying p laintiff's claim are his allegations that, commencing June 1, 2006, defendants constructively w ith h e ld his ribavirin medication because he did not wait in the lengthy, slow-moving pill lin e s or the cage to receive the medication. (Docket Entry No. 21, p. 9.) In an attempt to ju s tif y his non-exhaustion of this claim, plaintiff states that the "recent incidents were not f u lly exhausted by the 90 day grievance process as doing so would have rendered the claim m o o t and allowed irreparable harm, therefore exhaustion is not required[.]" Id. This c o n c lu so ry allegation is not borne out by the record, nor does it excuse plaintiff's failure to e x h a u st this particular claim. Plaintiff fails to meet his burden of proving exhaustion as to th is issue, and defendants are entitled to summary judgment on the affirmative defense of f a ilu re to exhaust. Even assuming proper and full exhaustion, plaintiff's allegations that his emergent h e p a titis C infection was not treated properly or quickly enough are in the nature of a 11

d isa g re e m e n t with the medical treatment provided by his medical care providers. He admits to receiving medications, examinations, and treatment, but not at a level or within a time f ra m e acceptable to him. Neither claims of negligence nor disagreement with the type of m e d ic a l care received rise to the level of a constitutional issue under section 1983: U n s u c c es s f u l medical treatment, acts of negligence, or medical malpractice do n o t constitute deliberate indifference, nor does a prisoner's disagreement with h is medical treatment, absent exceptional circumstances. Furthermore, the d e c is io n whether to provide additional treatment is a classic example of a m a tte r for medical judgment. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotations omitted). Failure to exhaust notwithstanding, plaintiff's claim fails to rise to the level of a constitutional issue. C la im s for Deliberate Indifference to Health and Safety P lain tiff alleges that defendants were deliberately indifferent to his health and safety b y (1) maintaining unsanitary, crowded prison showers that exposed him to infectious a g e n ts ;2 (2) forcing him to walk in the pill line in excess of his 50-yard walking restriction; a n d (3) allowing female officers to observe him while he is in the handicapped shower and to i le t facilities. Defendants seek summary judgment based on plaintiff's failure to exhaust a n d failure to state a viable claim. D e f en d a n ts argue that plaintiff failed to exhaust his claim that unsanitary, crowded h an d icap p e d inmate showers exposed him to infectious agents. A review of plaintiff's

Plaintiff expressly denies that he contracted hepatitis C from overcrowded handicap shower facilities at Jester III. (Docket Entry No. 73, p. 48.) Accordingly, the Court does not address that particular facet of his Eighth Amendment issue. 12

2

p lea d in g s shows that, in raising this claim, he asserts that the exposure to infectious agents c o n s titu t e d the obvious risk to his health and safety. Defendants state, and the record shows, th a t plaintiff exhausted this particular issue on May 28, 2006, prior to the filing of this law su it. However, this Court's careful review of plaintiff's voluminous grievance exhibits ­ a significant number of which do not evince receipt or processing by prison officials ­ fails to reveal that plaintiff exhausted administrative remedies for an Eighth Amendment claim re g a rd in g overcrowded handicapped prisoner showers within the statutory limitations period o r prior to his filing of this lawsuit. To the extent plaintiff alleges that he "filed" the g rie v a n ce s but that prison officials did not respond, plaintiff fails to show that the u n p ro c e ss e d grievances did not violate prison regulations limiting the number and timing of a n inmate's grievances to one every seven days. See Woodford v. Ngo, 548 U.S. 81 (2006) (h o ld in g that to constitute exhaustion, grievances must be filed properly according to all re le v a n t administrative regulations and procedures). That plaintiff had "too many other c o m p lain ts" to grieve in excess of the seven-day limitation does not excuse his failure to e x h a u st this or any other claim made the basis of this lawsuit. D e f e n d a n ts further assert as unexhausted plaintiff's claim regarding the 50-yard walk to the pill line. By this claim, plaintiff complains that being required to walk over fifty yards to the pill window violated his medical restrictions. None of the underlying incidents alleged b y plaintiff in his more definite statement occurred within the applicable two-year statute of lim ita tio n s . (Docket Entry No. 21, pp. 9, 14-15, 22.) Further, plaintiff's Step 1 grievance 13

w a s filed on August 26, 2006, after commencement of this litigation. Plaintiff fails to meet h i s burden of proving exhaustion as to this issue, and defendants are entitled to summary ju d g m e n t on the affirmative defense of failure to exhaust. Defendants correctly argue that plaintiff fails to raise a viable Eighth Amendment c laim in his allegation that the handicapped inmate shower and toilet areas were observable to female officers. Plaintiff does not dispute that the officers were present for purposes of s e c u rity and that security is a legitimate penological interest, but argues that having female se c u rity guards at those locations did not promote a legitimate penological interest. This a rg u m e n t is foreclosed by Fifth Circuit precedent. In Letcher v. Turner, 968 F.2d 508, 510 (5 th Cir. 1992), the Fifth Circuit relied on Barnett v. Collins, 940 F.2d 1530 (5th Cir. 1991) (u n p u b lis h e d ), which "held that no constitutional violation occurs when naked male inmates a re viewed by female guards if the presence of the female guards is required to protect a le g itim a te government interest such as maintaining security at a correctional facility". L e tc h e r, 968 F.2d at 510. Barnett involved the use of female guards in guard towers giving a full view of male inmates taking showers. Accordingly, plaintiff's instant claim concerning t h e ability of female guards to view him in the restroom and shower is without merit and d e f e n d a n ts are entitled to summary judgment dismissing this claim.

14

A m e ric a n s with Disabilities Act T itle II of the Americans with Disabilities Act (ADA) provides as follows: [ n ]o qualified individual with a disability shall, by reason of such disability, b e excluded from participation in or be denied the benefits of the services, p ro g ra m s , or activities of a public entity, or be subjected to discrimination by a n y such entity. 4 2 U.S.C. § 12132 (emphasis added). The Supreme Court recognizes that Title II of the A D A applies to inmates in state prisons. Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206 (1 9 9 8 ). Under the Act, plaintiff here may pursue his exhausted ADA claims against the State o f Texas and its agency, TDCJ. T o present a prima facie ADA claim, plaintiff must establish that (1) he is a qualified in d iv i d u a l with a disability; (2) he was discriminated against by the State of Texas or TDCJ; an d (3) the discrimination occurred because of his disability. See Blanks v. Southwestern B e ll Communications, 310 F.3d 398, 400 (5th Cir. 2002). As punitive damages are

u n a v a ila b le under the ADA, plaintiff is necessarily seeking a declarative judgment or in ju n c tiv e relief against the defendants in their official capacities. See Barnes v. Gorman, 5 3 6 U.S. 181, 189-90 (2002); McCarthy ex re. Travis v. Hawkins, 381 F.3d 407, 413-14 (5th C ir. 2004). P la in tif f complains that the State of Texas and TDCJ violated the ADA in the f o l lo w in g particulars:

15

(1) (2) (3 )

p ro v id in g him hot, uncomfortable polyester shirts to wear; f a ilin g to provide handicapped recreational facilities; o v e rc ro w d e d handicapped shower and prisoner facilities exposed him to d i se a s e and infectious agents; d e n yin g him a hospital mattress in his cell; a llo w in g lengthy and uncomfortable pill lines and waits in the cage; and e x p o s in g him to excessive heat during the summer months.

(4 ) (5 ) (6)

T h e se instances will be analyzed individually or grouped as necessary for clarity and e f f ic ie n c y in addressing plaintiff's claims. Defendants allege that plaintiff failed to exhaust his administrative remedies through th e prison grievance system as to incidents (1) and (2) regarding hot, uncomfortable polyester s h irts and handicapped recreational facilities. Plaintiff's own records reflect a Step 1 g rie v a n ce (Docket Entry No. 74, p. 244) regarding denial of a button shirt on September 23, 2 0 0 4 . The grievance shows no filing or processing information from prison officials, and p la in tif f admits it was never processed or returned by prison officials. Regardless, plaintiff m a k e s no assertion, and the record does not show, that he exhausted prison grievances as to " h o t, uncomfortable shirts." He concedes that he did not exhaust administrative remedies a s to the recreational facilities issue. (Docket Entry No. 73, p. 75.) Defendants raised the af firm ativ e defense of non-exhaustion in their answer, and they are entitled to summary ju d g m e n t dismissing these claims for failure to exhaust.

16

D e f e n d a n ts are further entitled to summary judgment dismissing these claims, as p la in tif f fails to establish any prima facie ADA violation. His claims are without merit. P lain tiff provides no probative summary judgment showing that these complained-of events w e re discriminatory incidents that occurred because of his disability, and he fails to establish an ADA violation. The fact that these events occurred does not stand as probative summary ju d g m e n t evidence that they were actionable under the ADA. See, e.g., Davidson v. Texas D e p a rtm e n t of Criminal Justice, 91 Fed. Appx. 963 (5th Cir. 2004) (unpublished) (affirming th e dismissal of an ADA lawsuit where the plaintiff failed to show that he was adversely tre a ted because of his handicap); Shaw v. Texas Department of Criminal Justice, 46 Fed. A p p x . 225 (5th Cir. 2002) (unpublished) (holding that an inmate denied participation in a p ro g ra m for handicapped prisoners because of a notation in his record labeling him a member o f a militant organization failed to show an ADA violation because the adverse treatment was n o t due to his disability). A c c o r d i n g l y , defendants are entitled to summary judgment

d is m is s in g these claims for violations of the ADA.

C o n c lu s io n T h e Court ORDERS as follows: (1 ) T h e defendants' motion to strike (Docket Entry No. 80) is GRANTED.

17

(2 )

T h e defendants' motion for summary judgment (Docket Entry No. 61) is GRANTED IN PART as to plaintiff's Fourth Amendment claims re g a rd in g the 2007 strip search; his claims under the ADA; and his E ig h th Amendment claims for deliberate indifference to serious m e d ica l needs, heath, and safety. These claims are DISMISSED with p r e ju d ic e . T h e defendants' motion for summary judgment (Docket Entry No. 61) is DENIED IN PART as to plaintiff's Fourth Amendment claims re g a rd in g the female officer's participation in the 2005 strip search and p la in tif f 's challenge to the constitutionality of AD 03.22. D e f en d a n ts are ORDERED to file, by APRIL 10, 2009, an amended m o t i o n for summary judgment as to plaintiff's Fourth Amendment c laim regarding the female officer's participation in the 2005 strip s e a rc h and his challenge to the constitutionality of AD 03.22. A n y and all other motions pending as of the date of this order are D E N IE D AS MOOT. T h is is an INTERLOCUTORY ORDER.

(3 )

(4 )

(5)

(6 )

T h e Clerk will provide copies of this order to the parties. S ig n e d at Houston, Texas on February 17, 2009.

Gray H. Miller U n ite d States District Judge

18