Johnson v. Doe
MEMORANDUM OPINION AND ORDER: 24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and 42 Motion for Summary Judgment are granted. 1 Complaint is dismissed with prejudice. 26 MOTION for Leave to File an Amended Complaint is denied. 36 MOTION for Leave to File supplemental complaint, 37 MOTION for Leave to File Supplemental Complaint, 48 MOTION for Appointment of Counsel, and 49 MOTION Plaintiff's motion to Deny the Defendants Motion for Summary Judgment or A Stay Until the Necessary Information May be Obtained are denied. (Signed by Judge Sim Lake) Parties notified.(glyons)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RODERICK KEITH JOHNSON,
TDCJ-CID NO. 1455959,
JOHN DOE, et al.,
CIVIL ACTION NO. H-12-2728
MEMORANDUM OPINION AND ORDER
Roderick Keith Johnson, an inmate of the Texas Department of
rights action under 42
Defendants TDCJ Executive Director Brad
TDCJ-CID Director Rick Thaler,
Senior Warden Robert
Herrera, and TDCJ Health Services Division Director Dr. Lannette
Linthicum, have filed a Motion for Summary Judgment (Docket Entry
supported by records and affidavits.l
motion will be granted for the reasons explained below.
Background and Procedural History
Johnson, a self-declared homosexual, was incarcerated at the
TDCJ Alred Unit during the early 2000's where he filed a section
IThe Motion for Summary Judgment and the supporting records and
affidavits were filed under seal because Johnson's confidential
medical records were included.
See Docket Entry No. 4l.
References to the records shall be cited as "App.
1983 suit alleging that he had been a "prison sex slaven and that
officials there had refused to protect him from assaults by other
Johnson v. Wathen, Civil No. 7:02cv0087 (N.D. Tex. 2005) .
Wichita Falls in which the jury found for the defendants and all of
Johnson's claims were dismissed.
conviction for which he received a nineteen-year prison sentence.
Johnson again complained that he was being victimized and
Corrections Department (NMCD) via an interstate compact agreement
on October 30, 2007.
See Correspondence from NMCD, dated June 17,
2011, App. 2-3.
The correspondence from NMCD states that its Security Threat
Intelligence Unit received information that Johnson was engaging in
sexual activities and was
himself in the NMCD prison
system, which in turn produced tensions between White and Hispanic
inmate groups within that system.
On May 20, 2011, Johnson
and a New Mexico inmate named Perez were moved involuntarily to
segregation because of reports that they were going to be assaulted
because of their relationship.
On May 27, 2011, Johnson reported
that Perez had sexually assaulted him.
When questioned about the
alleged assault, Perez stated that Johnson had assaulted him.
investigating officers concluded that none of the charges could be
activities with both white and Hispanic inmates,
tensions between the groups as well as enemies for Johnson.
NMCD transferred Johnson to other facilities four times based on
the enemies that he had made.
When the NMCD had "run out" of
facilities to house Johnson, the NMCD requested that TDCJ take him
Johnson was returned from New Mexico on August 8, 2011.
He was subsequently assigned to the Pack I Unit where
Application for a Temporary Restraining Order in the earlier action
In the Northern District of Texas.
District Court severed the new filing from the earlier,
because the Pack I Unit is located here.
The defendants now move
to dismiss or for summary judgment.
Johnson's Claims and Allegations
Johnson claims that the defendants have violated his rights by:
Denying him treatment for his serious medical and
Failing to protect him from serious harm; and
Housing him in isolated custody;
Retaliating against him for filing grievances.
Conditions - Isolated Housing
Johnson alleges that he was placed in solitary confinement
upon his return from the New Mexico prison system.
Although he admits that he is at risk of being
attacked if he is placed in general population, he contends that
the conditions are punitive because he is locked in a closet-like
cell for 23 hours each day where there is no human interaction
other than occasional brief exchanges with guards.
that his isolated condition poses a grave threat to his mental
which has already suffered from his previous traumatic
He contends that
he has experienced a
deprivation of sensory, social, and intellectual stimuli, which has
caused him to suffer stress and depression.
Deliberate Indifference to Medical and Mental Health
Johnson contends that the defendants have been deliberately
indifferent to his serious medical and mental health needs.
addition to his allegations that his current confinement harms his
mental well being, Johnson also cites his alleged history of sexual
abuse at the hands of other inmates.
(Docket Entry No.4, p. 7)
contends that his isolated confinement exacerbates his condition and
that he experiences hallucinations, both auditory and visual.
Johnson alleges that he has required treatment from various
agencies who administered psychoactive drugs including:
(a bipolar drug), Depakote (used for seizures or manic episodes),
(Docket Entry No.1, p. 7)
Johnson asserts that he
was completely sane when he was transferred to TDCJ from the New
Mexico prison system but that he has lost all grip on reality as he
languishes in total isolation suffering from paranoia,
thoughts, and gruesome nightmares.
(Docket Entry No. 18, p. 12)
Johnson complains that the defendants have been deliberately
indifferent to his condition because they have failed to place him
facility or monitor his
contends that they have subjective knowledge of his condition and
vulnerabilities because they are aware of his history of abuse and
prior diagnoses of mental difficulties.
care along with his
result in serious injury or even death.
rd. at 13.
isolated confinement may
Failure to Protect
Johnson alleges that he is at high risk of being assaulted if
he is placed in general population in the TDCJ system.
Entry No. 18, p. 8)
He alleges that there are many gang members who
seek retribution because Johnson has been labeled a snitch and that
he lives in constant fear of what may befall him.
rd. at 9.
contends that Livingston and Thaler were aware of this problem when
Johnson was returned from New Mexico.
rd. at 8.
that his continued placement in TDCJ violates his right under the
Eighth Amendment because there is no way that he can be safely
integrated into the system, and he has been denied a basic necessity
that violates all contemporary standards of decency.
rd. at 9.
Johnson contends that his removal from NMCD was retaliatory
and alleges that his return to the Texas prison system has placed
him at substantial risk of physical and sexual assault.
claims that he lives in constant fear that prison officials will
follow through with their threats to have him killed for seeking
relief through administrative and legal channels.
He alleges that he was safely housed in the NMCD
general population but that Livingston and Thaler transferred him
back to TDCJ in retaliation for filing grievances.
No. 18, p. 9)
He furtheralleges that Livingston and Thaler, along
with Herrera, continue to retaliate against him knowing that he is
the conditions there.
Id. at 10.
He contends that the officials are aware of
his history of physical and mental abuse and have retaliated by
placing him in isolated confinement, which he claims is far harsher
than placing him in the general prison population.
Johnson further alleges that Livingston, Thaler, and Herrera
have continued to retaliate against him by allowing prison officials
to tamper with his food, destroy his cell, and confiscate his legal
work in order to prevent him from filing further grievances.
He complains that the defendants have interfered with his right of
him protection and
contact with someone with whom he can file a protest concerning the
(Docket Entry No. 18, pp. 11-12)
Johnson alleges that the defendants' acts and omissions have
caused him to suffer "physical injuries, intense degradation and
He seeks declaratory and injunctive relief.
Id. at 12.
Johnson specifically requests an order transferring him to another
state's correctional system or the federal prison system to remain
as long as he is scheduled to remain in TDCJ custody.
Id. at 15.
Johnson requests that he be
offered appropriate medical and psychiatric treatment and that the
court retain jurisdiction over the defendants until the court is
satisfied that the defendants have ceased their unlawful practices.
The Defendants' Response
In their well briefed and thoroughly supported motion for
summary judgment, the defendants contend that the court should deny
Johnson's request for relief because:
With the exception of his conditions of confinement
claim, Johnson has not exhausted the required
administrative remedies because he has failed to
complete the TDCJ grievance process alleging that
Thaler, Livingston, Herrera, or Linthicum violated
his rights by denying him access to health and
psychiatric care, being deliberately indifferent to
his need for safety or retaliated against him.
Johnson's housing in Protective Custody does
violate constitutional minimums because he
removed from general population to protect him
predators and gang members who want to use him
indifferent to Johnson's health and safety.
Johnson is not entitled to a permanent injunction
because he fails to show that injunctive relief is
appropriate under the governing legal standards or
the restrictions found in the PLRA.
The defendants present the following evidence in support of
Roderick Keith Johnson, TDCJ #1455959;
June 17, 2011, Correspondence from the
Summary of Johnson's Step 1 and Step 2
Relevant portions of Johnson's grievance
records, with business records affidavit;
Affidavit of Warden Robert Herrera;
Relevant portions of Johnson's Life
Endangerment Investigations file for the
period of 8/09/11 to 01/28/13, with
business records affidavit;
TDCJ's Administrative Segregation Plan,
dated March 2012;
Relevant portions of Johnson's medical
and psychiatric records, with business
TDCJ's Classification Plan,
Affidavit of Lannette Linthicum, M.D.
Attachments to Docket Entry No. 41.
The evidence is summarized in the following narrative:
grievances since his return from New Mexico.
See App. 26-119.
first Step 1 grievance (#2011215738) was filed within a few days of
his arrival at Pack I on August 11,
In that grievance he
Johnson alleged that he had an active case
and needed his materials to meet his deadlines.
stated that he had been provided additional
storage space and that his materials were returned to him.
then filed a Step 2 grievance
materials had not been returned.
complaining that legal
that the material confiscated was material that had been sent to
him while he was in New Mexico and belonged to TDCJ.
advised that he could request the material from the Pack Unit law
Johnson filed a Step 1 grievance (#2011221544) on August 22,
2011, complaining that TDCJ officers were retaliating against him
for using the grievance process by denying him access to his legal
materials and medications.
an investigation showed that
Johnson had not been
denied medications and medical care and that he had access to his
September 12, 2011, claiming that his allegations of assault have
led to repeated instances of retaliation resulting in denial of
The response (App. 41) stated that rounds
are conducted daily for patients in segregation.
Citalopram had been missed,
Al though a dosage
Johnson then filed a Step 2 grievance (App. 42)
suffering acute psychological problems
including paranoia and hallucinations.
stated that his complaint about medical care could not be addressed
because Johnson had failed to take correct measures to informally
resolve the issue, and that there was also no evidence to support
his allegation of retaliation.
(#2012006394) against the State Classification Committee alleging
placement in Administrative Segregation (Ad Seg)
deprives him of
access to drug and alcohol programs and educational programs, which
has affected his psychological well-being.
(App. 45) stated that the State Classification made the determination that Johnson needed to be in protective custody and that the
unit administration had no authority to override the decision.
Johnson filed a Step 2 grievance (App. 46)
stating that he had not been allowed to provide information about
- - - - - .,-------------==============
how his assignment was affecting him physically, emotionally, and
stated that matter had
already been addressed appropriately and that no further action was
Johnson filed another Step 1 grievance regarding his legal
materials (#2012022991) on October II, 2011.
he alleged that his material had been confiscated and destroyed.
disposition of certain items and that the remaining property that
was permitted had been returned to him.
In his Step 2 grievance
Johnson claimed that his legal materials had not been
returned to him nor had they been stored.
The response (App. 51)
stated that all materials that had not been provided by TDCJ's
Access to Courts,
returned to him.
Counsel and Public Official's Office had been
The response further stated that the case law in
question was available through Access to Courts.
another officer harassed him and confiscated his legal materials in
retaliation for filing grievances.
they threatened him with a cell shakedown.
He also alleged that
The response (App. 53)
investigation had been conducted,
library staff explained what material was not kept there and why.
Johnson's allegation that the staff had said anything inappropriate
Johnson1s Step 2 grievance
alleged that the
(App. 55) stated that a thorough investigation revealed no evidence
to support Johnson1s allegations of threats or staff misconduct.
in which he claimed that he was suffering from Post
Trauma Stress Disorder (PTSD), bipolar disorder, and depression.
He further alleged that the mental health worker who treated him
threatened him and accused him of wanting to be released from Ad
Seg so he could have sex with other male inmates.
Step 2 grievance
response by stating that he did not refuse treatment or services
and that the worker harassed him.
The response (App. 59) concluded
support of Johnson1s complaint.
Moreover, Johnson had failed to
make a correct attempt to informally resolve his complaint.
Johnson filed a Step 1 grievance (#2012036379) on October 30
complaining that a guard had threatened to leave his cell
unlocked so that he would be vulnerable to assault.
grievance was denied
sustain Johnson1s allegation.
because there was no evidence to
Johnson filed a Step 2 grievance
(App. 62) alleging that guards were intimidating him in retaliation
for his testimony about
the sexual abuse that
resulted in his
transfer to New Mexico.
This claim was also denied (App. 63) for
lack of evidence.
Johnson filed a Step 1 grievance
that his placement in Ad Seg inhibits his right of access to the
had been made.
He also complained that a grievance
explain why a
The response (App. 65) stated that an investigation
It also explained that the grievance department has
specific submission guidelines and that grievances filed outside of
that scope are screened.
The response also stated that there was
no evidence to sustain Johnson's allegations.
Step 2 grievance
Johnson filed a
complaining that the denials of two
TDCJ's unconstitutional conduct, specifically his placement in Ad
The grievance was denied
because there was no
evidence of staff misconduct.
Johnson filed a Step 1 grievance
that he was being threatened and harassed for filing grievances,
which inhibits his access to the grievance system.
also complained that TDCJ officials were improperly dismissing his
previously grieved the issue.
stated that an investigation
Moreover, there was no evidence that
staff had addressed the issue incorrectly.
Johnson filed a Step 2
grievance (App. 70) complaining that his access to the grievance
procedure was inhibited by threats and arbitrary denials of his
The response (App. 71) stated that there was no evidence
of staff misconduct and that the complained of grievances are under
review regarding his medications and hallucinations issues.
Johnson filed a Step 1 grievance (#2012074987) claiming that
he needed a daily dosage of 900 mg of Seroquel, 200 mg of Zoloft
and 2000 mg of Depakote but that he was only prescribed 20 mg of
Citalopram (an antidepressant).
The response (App. 73)
stated that no further action was necessary because Johnson had
been seen by a doctor who had prescribed zoloft and that he was
complained of low dosages that did not address his mental problems
and that the medical treatment at Pack I
stated that there was no evidence to support
Johnson's complaint that he was being denied adequate medical care.
There was also a finding that Johnson had failed to informally
resolve the problem.
Johnson filed a Step 1 grievance (#2012085947) on January 18,
2012, asserting that his assignment in Ad Seg violates his right
under the Eighth Amendment.
He also complained that the
assignment negatively affects his ability to accrue good time or
seek a classification promotion.
that Johnson had been seen regarding the Mental Health Manual
It also informed him that he needed to send an 1-60 to
State Classifications in Huntsville if he wanted a release from
Johnson's Step 2 grievance (App. 78) reiter-
condition in violation of the Eighth Amendment.
(App. 79) denied the grievance stating that his complaint had been
reviewed and that the issues had already been addressed.
also a determination that Johnson had failed to informally resolve
On March 7,
Johnson filed another Step 1 grievance
(#2012118448) alleging that officials had threatened and harassed
him for filing grievances.
He also complained that his
living conditions restricted his right to practice his religion and
response (App. 81) stated that an investigation had been made and
that no evidence had been found to warrant a change in Johnson's
Johnson filed a Step 2 grievance
(App. 83) based on the absence of evidence of staff misconduct.
Limsiaco determined that he did not suffer from any mental
disorder based on Ms. Bookman's cursory examination.
stated that Dr.
Limsiaco saw Johnson on
April 4, 2012, and that he had been prescribed Sertraline and that
Johnson filed a Step 2 grievance
no further action was needed.
indicated that Johnson had been seen and prescribed medications.
It also stated that Johnson was routinely monitored and that there
were no Sick Call requests indicating that he was having trouble
with the prescribed medications.
Johnson filed a Step 1 grievance
(#2012139831) on April 11,
2012, complaining that a guard named Garcia had threatened Johnson
and made him take a cold shower.
Although assured that
the threats would be stopped, Johnson claimed that they continued.
The grievance was denied
based on no finding of any
evidence to support Johnson's allegations.
accepted Garcia's word over his own.
Johnson filed a Step 2
That grievance was also
denied (App. 91) for lack of evidence.
(#2012140841) on April 12, 2012, alleging that Garcia physically
backed him against a shower wall and threatened him.
The grievance was denied (App. 93) for lack of evidence.
Step 2 grievance (App. 94) was also denied (App. 95) because there
was no evidence to support the claim.
(#2012142492) on April 15, 2012, alleging that Garcia searched his
cell and confiscated a highlighter and post-it pad in retaliation
for the grievances Johnson had filed.
The grievance was
denied (App. 97) because the confiscated items were contraband and
Johnson filed a Step 2 grievance
because the search was legal.
(App. 99) based on a finding that Johnson's cell had been searched
appropriately and that there was no evidence of retaliation.
Johnson filed a Step 1 grievance
alleging that Warden Herrera,
on April 21,
Ad Seg officials,
and harass Johnson.
denied (App. 101)
for lack of evidence.
The grievance was
Johnson filed a Step 2
grievance (App. 102) appealing the denial and alleging that he had
been subjected to assaults.
The grievance was denied (App. 103)
physically harm Johnson.
Johnson filed a Step 1 grievance (#2012148265) on April 24,
2012, challenging a disciplinary action stemming from a contraband
charge filed against him by Garcia.
denied and the disciplinary action upheld
The grievance was
sufficient evidence to support a guilty finding.
105) based on a
Johnson's Step 2
determined that all due process requirements had been met and that
the punishment assessed was within the agency guidelines.
On July 15,
Johnson again filed a
Step 1 grievance
(#2012197813) asserting various mental disorders, which have been
complained that health care and mental health providers refused to
provide adequate treatment and that no effort had been made to
change his housing conditions.
The response (App. 109) stated that
Johnson had been given an initial assessment within 30 days of
arriving at the Pack I Unit and that he was reevaluated every 90
concluded that no further action was
necessary because Johnson was being treated by a psychiatrist.
Johnson filed a Step 2 grievance (App. 110) complaining that TDCJ
was inadequately treating his mental illness.
The grievance was
monitored regularly and that there had been no sick call requests
(SCR) from Johnson since February of 2012.
July 23, 2012, again complaining about the living conditions in Ad
He complained that SCC officials were torturing
him because he was branded as a snitch.
The grievance was denied
(App. 113) because the unit authorities did not have the authority
to release Johnson from protective custody.
Johnson appealed his
claims against the SCC officials in a Step 2 grievance (App. 114)
alleging that prison officials continued to assault him, threaten
tamper with his mail,
steal his paper work,
and impede his
access to the grievance process under the guise of protection.
grievance was denied (App. 115) for lack of evidence.
Johnson filed a Step 1 grievance (#2012209177)
on August 3,
2012, once again complaining about his living conditions stating,
"In the past they have used rape and now they are using extreme
brutality and still
to provide adequate medical care."
The response (App. 117) denied the grievance and noted that Johnson
had previously grieved this issue.
It also observed that the SCC
had interviewed Johnson and refused his request for release into
general population and that Johnson's health concerns were best
addressed by the medical department.
Johnson once again filed a
Step 2 grievance (App. 118) complaining that officials continued to
with the notation that
the matter had already been
Johnson's Housing Conditions and Need for Protection
Contrary to Johnson's allegations, he is not being housed for
See Affidavit of warden Herrera, App. 120-123.
Instead, he has been assigned to Protective Custody to separate him
from the general population to maintain safety,
Id. at 120.
Johnson asserts in his pleadings that he has
been subjected to assault and sexual abuse by gang members because
of his sexual orientation and his reputation as an informer.
Consequently, he has been placed in Protective Custody.
Pursuant to TDCJ policy, prison inmates who need the highest
harm are placed
in order to provide
These inmates were assigned to single cells and are not
Additional staff are assigned to escort Protective Custody inmates
whenever they leave a secured area.
reporting that they are in danger from other inmates.
Protective Custody differs from solitary confinement because it is
not puni ti ve in nature.
Inmates who have been found guilty of
disciplinary infractions are placed in solitary confinement where
they are subj ect
to property restrictions where
they are only
allowed to bring their toiletry items, religious items, and legal
materials. In contrast, inmates in Protective Custody are allowed
items, books, games, and personal clothing purchased from approved
mattress, a sink, a toilet, a desk with a seat, and storage under
his bed for clothing and personal items.
There is a
window on the door of the cell which looks out on the housing area.
There is also an II-inch,
flat-screen television with 17
channels, which Johnson can watch at any time.
to the radio.
He may also listen
Johnson also has access to the unit library and
may check out materials from the law library as well as the Chapel
Contrary to Johnson's allegations, he does have daily contact
wi th other persons.
Heal th care workers
medical rounds with inmates in Protective Custody at least twice
In addition, medical technicians deliver prescribed
providers also make routine rounds through the Protective Custody
Inmates in Protective Custody also have access to the unit
chaplain and religious volunteers.
and drug dependency at
they may seek
Although by necessity Johnson cannot have physical contact with
other inmates, his cell is situated so that he may speak with other
offenders who are housed in Protective Custody.
also has daily contact with TDCJ staff.
Johnson is also allowed to receive correspondence from friends
addition, he can receive periodicals and newspapers from approved
vendors, and he can take correspondence courses from the Wyndham
Independent School District.
Johnson was placed in Protective Custody because he made a
reviewed by either an Administrative Segregation Committee (ASC) or
a Unit Classification Committee.
His custodial status and
housing is reviewed every 30 days by an ASC and every six months by
The ASC must make the recommendation,
and the SCC is the final approving authority.
Johnson's Access to Medical and Psychiatric Care
Johnson has been diagnosed as having PTSD for which he has
been prescribed 150 mg Sertraline (Zoloft), which is used to treat
He has also been prescribed Amlodipine
(high blood pressure), hydrochlorothiazide (edema), and aspirin.
Johnson has been previously diagnosed with hyper-
tension and a history of polysubstance dependence.
he has not been diagnosed with bipolar disorder, schizo-affective
disorder or major manic depression.
Joyce Bookman, a mental health
care provider, saw Johnson on December 5, 2012, and described him
as "clean and well groomed, dressed appropriately."
She also noted that he was oriented and cooperative.
no bizarre behavior and was not experiencing any hallucinations.
Bookman noted that Johnson's thought processes were logical and
goal oriented and that his main concern was finding a way to get
himself out of Protective Custody status.
As noted above, health care workers routinely visit inmates
housed in the Protective Custody area and are there on a daily
The TDCJ Managed Care Solitary/Prehearing
Flow Sheet reflects that health care workers visited with Johnson
every day from August 10, 2011, through January 11, 2013.
Pursuant to the TDCJ Classification Plan, the
(University of Texas Medical Branch) UTMB Psychiatric Department
evaluates Johnson's mental health every 90 days.
313-319, 325-327, 328-330)
Johnson is also subject to a physical
See "Other Special Conditions: Physical by
(App . 155, 15 7, 162, 165, 1 72, 1 74, 1 7 9, 18 3, 197, 2 0 0 ,
204, 206, 210)
The records indicate that Johnson is aware of how to access
medical and psychiatric care and has done so successfully in the
(See App. 311, 392.)
Johnson reported observing blood in
his stool on September 23, 2011.
Id. at 392.
hemorrhoid with no
A sick call exam
There is also an entry to make a
determination as to whether Johnson was receiving medications for
There is no record of Johnson not
receiving medication for an extended time or any indication that
Johnson suffered from any untreated acute mental illness.
Health care workers at the TDCJ units are employees of UTMB
and are not employees of TDCJ or its health services division.
(App. 537 (Linthicum Affidavit))
Consequently, the TDCJ adminis-
tration is not responsible for the daily medical operations.
Retaliation - Motion to Dismiss
In a separate Motion to Dismiss
(Docket Entry No.
defendants argue that Johnson has failed to assert facts which show
that they were personally involved in the alleged deprivations.
They also contend that Johnson's claims of retaliation are not
based on facts or a chronology of events from which retaliation may
Rule 12 (b) (6) Motion to Dismiss
12 (b) (6)
and should be granted only if it is evident that the
plaintiff cannot prove any set of facts entitling him to relief.
Turner v. Pleasant,
663 F.3d 770,
(5th Cir. 2011)
In determining whether the plaintiff has stated a claim
upon which relief can be granted, a reviewing court must accept the
well-pleaded facts alleged in the complaint as true and construe
the allegations in the light most favorable to the plaintiff.
Pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers.
Haines v. Kerner, 92 S. Ct. 594, 596
(1972) i Propes v. Quarterman, 573 F.3d 225, 228
(5th Cir. 2009).
"must plead specific facts,
conclusional allegations, to avoid dismissal for failure to state
Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 374
(5th Cir. 2003), citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498
(5th Cir. 2000).
Therefore, a reviewing court must
determine whether the complaint provides "enough facts to state a
claim to relief that is plausible on its face."
681 F.3d 215, 219
Bowlby v. City of
(5th Cir. 2012), quoting Bell
Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
is insufficient if it merely contains "labels and conclusions," or
"a formulaic recitation of the elements of a cause of action."
Summary Judgment Standard
answers to interrogatories, and admissions on file, together with
any affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
In deciding a motion for summary judgment, the court must determine
whether the pleadings and records indicate if there is a genuine
issue regarding any material fact and whether the moving party is
entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552
determining whether a
the court views
facts and the inferences to be drawn therefrom in the light most
favorable to the nonmoving party.
Fruit & Vegetable CO.
In re Kinkade
336 F.3d 410
707 F.3d 546,
412 (5th Cir. 2003).
the court cannot make any credibility determinations or weigh
Services Corp., 646 F.3d 321, 325 (5th Cir. 2011)
The party moving for summary judgment has the initial burden
of demonstrating the absence of a material fact issue.
of Rowlett, Tex.
247 F.3d 206
Kee v. City
210 (5th Cir. 2001).
To meet this
burden the movant must present evidence that shows that the nonmovant
158 F. 3d 908,
The movant may
accomplish this by showing that the non-moving party has presented
Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002).
movant has met this burden
the burden shifts to the non-movant to
present specific facts showing that there is a genuine issue for
judgment will be entered in favor of the movant.
Hart v. Hairston,
343 F.3d 762, 764 (5th Cir. 2003).
The court construes the evidence such that the non-moving
favored and does
probative value, or resolve any factual disputes.
Williams v. Time
Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996).
controversies will be decided in the non-movant's favor only when
both sides have presented evidence showing that there is an actual
Burns v. Harris County Bail Bond Bd., 139 F.3d 513,
518 (5th Cir. 1998), citing Little, 37 F.3d at 1075.
sory allegations are insufficient to defeat summary judgment.
v. BMC Software,
Inc., 610 F.3d 917,
(5th Cir. 2010), citing
absence of any proof, the court will not assume that the non-movant
could or would prove the necessary facts.
Burns, at 518, citing
Because this is a civil rights action, Johnson must (1) prove
a violation of a right secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.
Doe ex reI.
Magee v. Covington County School Dist. ex reI. Keys, 675 F.3d 849,
(5th Cir. 2012), citing James v. Tex. Collin County, 535
F.3d 365, 373 (5th Cir. 2008).
As a prisoner, Johnson has a right
under the Constitution's Eighth Amendment not to be subjected to
cruel or unusual punishment, which includes conditions that place
him at unnecessary risk of harm.
1078, 1084 (1986).
Whitley v. Albers,
106 S. Ct.
However, in order to prevail Johnson must show
that the defendants were aware of a risk of serious harm to him and
See Farmer v.
that they were deliberately indifferent to it.
relief in court.
See 42 U.S.C.
Exhaustion of Administrative Remedies
Before a prisoner can present a conditions claim in federal
court, he must first exhaust those prison administrative remedies
that are available to him.
aspects of prison life.
Porter v. Nussle,
This applies to all
The purpose of section 1997e(a) is to filter out baseless
claims and to allow custodial officials to respond to legitimate
complaints without burdening the courts.
Id. at 988.
Woodford v. Ngo, 126 S. Ct. 2378, 2388 (2006).
A prisoner does
not comply with the exhaustion requirement by filing a grievance or
appeal that is procedurally defective.
Failure to exhaust
affirmative defense in a prisoner civil rights suit, but prisoners
are "not required to specifically plead or demonstrate exhaustion
Corrections, 244 F. App'x 554, 555 (5th Cir. 2007), citing Jones v.
Bock, 127 S. Ct. 910, 921 (2007).
The TDCJ system has a two-step grievance procedure that must
be completed in order to comply with section 1997e.
177 F.3d 393, 394 (5th Cir. 1999).
Powe v. Ennis,
If an inmate has a complaint,
he has 15 days from the date of the alleged infraction to file a
Step 1 grievance with the Unit Grievance Investigator.
inmate must then wait up to 40 days to receive a response.
response is not satisfactory, the inmate must then file a Step 2
grievance within 15 days and wait another 35 days for a response.
Id. See - - - - - also
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004)
("The Step 1 grievance, which must be filed within fifteen days of
complained-of incident, is handled within the prisoner's
After an adverse decision at Step 1, the prisoner has
ten days to file a Step 2 grievance, which is handled at the state
To exhaust, a prisoner must pursue a grievance through
both steps in compliance with all procedures.
Id., citing Wright
v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
administrative remedies are deemed exhausted when a valid grievance
has been filed and the state's time for responding thereto has
Powe, 177 F.3d at 394.
The defendants have presented Johnson's grievance records,
which contain various complaints.
Defendants do not dispute that
However, the defendants contend that Johnson failed
to exhaust the grievance system with regard to his claims that the
defendants denied him access to health and psychiatric care and
were deliberately indifferent to his need for protection.
also argue that
A primary intent behind
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)
is not intended to be a summons used to initiate an adversarial
opportunity to address the problem internally.
identification of those individuals who are
responsible for the violations, "the primary purpose of a grievance
is to alert prison officials to a problem, not to provide personal
notice to a particular official that he may be sued."
Id. at 522.
The court has carefully reviewed the numerous grievances filed
Although Johnson does not mention Thaler, Livingston,
or Linthicum in any of his grievances,
section 1997e does not
Johnson does not identify the named defendants in his grievances,
he makes it clear that he alleges that he has been denied treatment
for his serious medical and psychiatric needs in addition to his
claims regarding his alleged placement in isolation.
filed grievances alleging retaliation.
However, the court does not
find that Johnson filed grievances that clearly asserted that he
was denied protection from assault.
the alleged failure to protect
prejudice under 42 U.S.C.
Therefore, the claim regarding
is subj ect to dismissal without
Johnson's Housing and His Need for Protection
The Constitution "does not mandate comfortable prisons" and
only those deprivations that deny "the minimal civilized measure of
life I s
Chapman, 101 S. Ct. 2392, 2400 (1981).
To the extent that [prison]
conditions are restrictive and even harsh,
they are part of the
penal ty that criminal offenders pay for their offenses against
Id. at 2399.
The defendants have shown that Johnson was
assigned to protective custody and housed in a
prevent inmates from assaulting him.
single cell to
This decision is grounded
upon the prison officials' duty to protect Johnson from violence at
the hands of his fellow inmates.
Longoria v. Texas, 473 F.3d 586,
592 (5th Cir. 2006), citing Farmer, 114 S. Ct. at 1976-77.
Prison authorities are afforded wide discretion in determining
where and under what
Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir. 2008), citing
McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990); Wilkerson v.
Stalder, 329 F.3d 431, 436
(5th Cir. 2003).
An inmate's liberty
interests are implicated only when the disciplinary measures taken
against him inflict deprivations that are atypical and significant
in relation to the ordinary incidents of prison life.
Hernandez, at 563, citing Wagner v. Hanks, 128 F.3d
1173, 1176 (7th Cir. 1997).
It is an ordinary incident of prison
life that is to be expected of an inmate who has been targeted by
either his past conduct or his reputation.
To hold otherwise
would subject custodial officials to an almost impossible task of
allowing potential victims the run of the prison while attempting
to protect them from violent assault.
assert a deprivation of a cognizable liberty interest in being
segregated from the general prison population while claiming that
and gang-related activity.
522 F.3d at 564.
he can communicate with others both in and out of prison.
The Supreme Court has recognized that inmates can be subjected to
isolated conditions for significant time periods.
See Wilkinson v.
not permitted at Ohiol s
Johnson/s conditions fall far short of those
he has alleged in his complaint or those conditions described at
Ohio/s supermax facility.
Johnson may not be able to
commune with other inmates like those in general population
that is a necessary component of protecting him from inmates in the
general population who wish to harm him.
There can be no guarantee that a prisoner will be protected
from all harm.
Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003)
inmate-on-inmate violence. ") , citing Farmer.
Johnson has persist-
ently claimed that he is a victim of sexual abuse and a target for
He has proven that
function in the
general prison populations of either the Texas or the New Mexico
The preventive actions taken by TDCJ officials at
the Pack Unit, as well as those in Huntsville, are reasonable and
do not violate Johnson's rights under the Eighth Amendment.
133 F.3d 301,
claims regarding his conditions of confinement will be dismissed.
Johnson's Transfer from New Mexico to Texas
Johnson contends that he should be removed from TDCJ and be
allowed to serve the remainder of his sentence in some other penal
The defendants have demonstrated that they previously made
an effort to accommodate Johnson's needs and that the New Mexico
Corrections Department experienced difficulties in housing him.
The correspondence form NMCD makes it clear that
Johnson initiated the sexual activities or was at least a willing
Regardless of whether another penal system would
accept him, Johnson has no constitutional right to choose where he
is assigned or how he is to be housed.
Olim v. Wakinekona,
S. Ct. 1741, 1748 (1983); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.
1996); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995).
fact that life in one prison might be less comfortable or appealing
than another has no bearing on whether a constitutional right is
Johnson's placement in TDCJ is made pursuant to a Texas state court
His assignment and classification is a matter
left to the discretion of the TDCJ officials who are in a better
position to determine where to place an inmate such as Johnson who
presents unique and difficult challenges.
Wilkerson v. Stalder,
329 F.3d at 436, citing McCord,
910 F.2d at 1250, citing Bell v.
Wolfish, 99 S. Ct. 1861 (1979).
See also Mayoral v. Sheahan, 245
F.3d 934, 939 (7th Cir. 2001)
(acknowledging pervasive presence of
gangs and the burdens placed on prison officials in segregating
assignment will be dismissed.
Medical and Psychiatric Care
Johnson alleges that he has been denied adequate medical and
As a prisoner of the TDCJ, Johnson has a right
to basic treatment in response to his serious medical needs as well
as his psychiatric needs.
Estelle, 97 S. Ct. at 290 (1976)
v. Texas Department of Criminal Justice,
239 F.3d 752,
Prison officials violate that right if they engage in
"acts or omissions sufficiently harmful
indifference to serious medical needs.
to evidence deliberate
Estelle, 97 S. Ct. at 292.
Prison officials are deliberately indifferent if they are (1) aware
from which an inference
of an excessive
plaintiff-inmate's health or safety could be drawn, and (2)
actually draw an inference that such potential for harm exists.
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
medical need is one for which treatment has been recommended or for
which the need is so apparent that even laymen would recognize that
care is required.
Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th
Cir. 2006); see also Phillips v. Roane County. Tenn., 534 F.3d 531,
539-540 (6th Cir. 2008).
Johnson alleges that he suffers from numerous mental ailments
and that his segregated confinement aggravates his condition.
treatment and medication.
denied him adequate
The records submitted by the defendants
demonstrate that Johnson is closely monitored and seen daily by a
health care worker.
Moreover, there was no indication that he was
suffering from a serious psychotic disorder that went untreated.
He was regularly given medication, Zoloft, to treat his PTSD
The defendants' records of treatment, analyses, and
indifferent to Johnson's condition.
Gobert v. Caldwell, 463 F.3d
See also Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th
The medical records refute Johnson's allegations of extreme
difficulties that were treated with medication.
Moreover, at least
one health care worker, Bookman, indicated that Johnson was clearly
focused on getting out of protective custody, suggesting that some
of his alleged behavior may have been directed toward that goal.
hypertension and that he has been treated and counseled on how to
The records demonstrate that Johnson's
need for medical attention has been met.
with the health care workers'
findings and diagnoses does not
indifferent to his serious health needs.
F.3d 585, 590-591 (5th Cir. 2012).
Sarna v. Hannigan, 669
Johnson's claims of deliberate
Johnson alleges that the defendants have retaliated against
him for exercising his right of access to the courts and the TDCJ
To assert a retaliation claim "a prisoner must
a specific constitutional right,
intent to retaliate against the prisoner for his or her exercise of
a retaliatory adverse act,
McFaul v. Valenzuela,
684 F.3d 564,
(5th Cir. 2012),
Causation requires a showing that the complained of incident would
not have occurred [unless there was a retaliatory motive present.
Peterson v. Shanks, 149 F.3d 1140, 1144 (lOth Cir. 1998).
MacDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Johnson alleges that he was transferred from the New Mexico
prison system back to TDCJ in retaliation for filing grievances.
He does not provide any facts from which the court could infer that
the transfer was motivated by an intent to retaliate against him.
See Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004).
Johnson's behavior in New Mexico showed that
he was more of a menace than a victim in the sexual exploitation
that was occurring in the penal system.
The NMCD letter shows
that there is no merit to Johnson's claim that his return to TDCJ
from New Mexico was in retaliation for exercising his right of
access to the courts and to the TDCJ grievance process.
The other retaliatory acts alleged by Johnson (food tampering,
harassment, cell searches, confiscations) are based on conclusory
allegations that are insufficient to support a retaliation claim.
See Shelton v. Lemons, 486 F. App'x 395, 397-398 (5th Cir. 2012),
citing Woods v.
Moreover, Johnson has not shown that the alleged retaliatory acts
have had any effect on his resolve to seek relief in the courts or
- - - - _.. . ---.---------===::::::::::::::======
through the prison administrative process.
The Fifth Circuit has
explained that" [t] he purpose of allowing inmate retaliation claims
1983 is to ensure that prisoners are not unduly discouraged
from exercising their constitutional rights."
449 F.3d 682, 686
(5th Cir. 2006), citing Crawford-EI v. Britton,
118 S. Ct. 1584, 1592 n.10 (1998).
Given the uninterrupted stream
of grievances that poured forth from Johnson's cell (App. 25-119),
it is difficult to perceive how any of the alleged retaliatory acts
prevented Johnson from filing grievances or seeking relief.
v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Johnson's claims of
retaliation shall be dismissed.
No Showing of Personal Involvement or Policy
In addition to demonstrating no constitutional violation, the
defendants have also shown that they were not personally involved
in the acts and omissions alleged by Johnson.
In a suit brought
1983 the plaintiff must usually show that the
"defendant was either personally involved in the deprivation or
James, 535 F.3d at 373, citing Anderson v. Pasadena
Indep. Sch. Dist., 184 F.3d 439,443 (5th Cir. 1999).
subordinate's actions if they were not personally involved in the
Johnson seeks injunctive relief and may sue the defendants in
their official capacities without violating the Eleventh Amendment.
However, a suit against the
Ex parte Young, 28 S. Ct. 441 (1908)
defendants in their official capacities must be supported by a
policy or custom behind the
See Spiller v. City of Texas City, 130 F.3d 162, 167
(5th Cir. 1997).
Allegations of isolated instances of deprivations
alone do not establish liability of the policy maker.
Oklahoma City v. Tuttle, 105 S. Ct. 2427, 2436 (1985)
Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988).
Johnson has failed to
establish or allege any facts that would demonstrate the existence
of a policy that violates his constitutional rights.
The defendants have demonstrated that there
judgment as a matter of law.
Therefore, the defendants' Motion for
(Docket Entry No. 42) will be granted, and this
action will be dismissed under
is no genuine
FED. R. Crv. P. 56.
have moved to dismiss
To the extent
regarding his conclusory allegations of retaliation as well as his
failure to demonstrate personal involvement, that motion (Docket
Entry No. 24) shall also be granted.
Johnson has filed several motions to amend and supplement his
He has requested that Dr. Linthicum be dismissed from
(Docket Entry No.
several new defendants be added.
He has al so requested that
The defendants have responded
The court agrees and
that the requested amendments are futile.
will deny Johnson's motions.
(Docket Entry Nos. 26, 36, and 37)
Johnson has also moved for court-appointed counsel.
no general right to counsel in civil rights proceedings.
The motion (Docket
Valenzuela, 684 F.3d 564, 581 (5th Cir. 2012)
will be denied because there are no extraordinary
circumstances in this proceeding that would justify appointment of
Id., citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
No. 49) will be denied for the reasons stated in this Memorandum
Opinion and Order.
The court ORDERS the following:
The Defendants Livingston, Thaler, Herrera, and
Linthicum's Motion to Dismiss for Failure to State
a Claim (Docket Entry No. 24) and Motion for
Summary Judgment (Docket Entry No. 42) are GRANTED.
The civil rights Complaint (Docket Entry No.1)
filed by a TDCJ prisoner is DISMISSED with
Johnson's request to dismiss Dr. Linthicum as a
requested in his Motion for Leave to File an
Amended Complaint (Docket Entry No. 26) is DENIED.
All other motions (Docket Entry Nos.
and 49) are DENIED.
SIGNED at Houston, Texas, on this the
UNITED STATES DISTRICT JUDGE
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