Martone et al v. Livingston et al

Filing 72

MEMORANDUM AND ORDER DENYING AS MOOT 62 Opposed MOTION to Stay All New Discovery, DENYING 26 MOTION to Dismiss Under FRCP 12(B)(6), DENYING 42 Amended MOTION to Dismiss , DEFERRING 27 MOTION to Dismiss Under FRCP 12(b)(6), DENYING AS MOOT 60 MOTION to Quash Discovery, DEFERRING 8 MOTION to Dismiss , DENYING 28 MOTION to Dismiss (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROXANNE MARTONE, et al,
Plaintiffs,
VS.
BRAD LIVINGSTON, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 4:13-CV-3369
§
§
§
§

MEMORANDUM AND ORDER
This lawsuit arises out of the heat-related death of a prisoner, Michael Martone, at the
Huntsville Unit of the Texas Department of Criminal Justice (TDCJ). Mr. Martone’s daughter,
Roxanne Martone, brings a § 1983 claim against Brad Livingston, Rick Thaler, William
Stephens, Owen Murray, Richard Alford, James Jones, Lanette Linthicum, Patricia Rye, Peggy
McCleskey, and Kerry Collard, in their individual capacities, for violations of Mr. Martone’s
right to protection from cruel and unusual punishment under the Eighth and Fourteenth
Amendments. Plaintiff also brings a claim against the TDCJ and the University of Texas
Medical Branch (UTMB) for violating Title II of the Americans with Disabilities Act (“ADA”),
the Americans with Disabilities Act Amendment Act (“ADAAA”), and Section 504 of the
Rehabilitation Act of 1973, as well as a negligence claim against only UTMB. (Doc. No. 1.)
Currently pending before the Court are Motions to Dismiss filed by Mr. Livingston, Mr.
Thaler, and Mr. Stephens (Doc. No. 8), Dr. Murray (Doc. No. 27), Ms. Rye (Doc. No. 28), and
UTMB (Doc. Nos. 26 and 42).1 After considering the Motions, the responses thereto, and the
applicable law, the Court DEFERS a decision on the Motions to Dismiss filed by Mr.
1

Dr. Linthicum also filed a Motion to Dismiss on the basis of qualified immunity (Doc. No. 15), but the Motion was
subsequently withdrawn without prejudice (Doc. No. 56).
1

Livingston, Mr. Thaler, Mr. Stephens, and Dr. Murray, and DENIES the Motions to Dismiss
filed by Ms. Rye and UTMB.
I.

BACKGROUND
Temperatures routinely exceed 100 degrees at the Huntsville Unit in Texas over the

summer months. (Doc. No. 1 at ¶ 21.) The apparent temperature – “the temperature plus the
effect of humidity” – soars even higher. (Id. at ¶¶ 25-26.) Certain inmates are more vulnerable
to the health risks of extreme temperatures since their medical conditions or medications prevent
their bodies from regulating their temperature. (Id. at ¶ 27.) Plaintiff alleges that Defendants
failed to protect Mr. Martone, an inmate with heat-sensitive medical conditions, from the
extreme heat at the Huntsville Unit. For the purposes of the Motions to Dismiss, the following
factual allegations are taken as true.
Mr. Martone suffered from hypertension, depression, and obesity, each of which
increased his susceptibility to heat stress. (Id. at ¶¶ 100-10.) In addition, medications prescribed
to treat hypertension and depression placed Mr. Martone at yet greater risk of heat-related illness
and death. (See id. at ¶¶ 102-03 and 105.) For example, diuretic medications, prescribed to treat
hypertension, increase a patient’s risk of heat stroke since they remove water from the blood to
decrease blood pressure. (Id. at ¶ 102.) Beta blockers, also used to treat hypertension, “reduce
the body’s ability to sweat, which is necessary to dissipate heat.” (Id. at ¶ 103.)
On August 8, 2011, temperatures in the Huntsville area reached over 100 degrees
Fahrenheit for the eighth consecutive day. (Id. at ¶ 117.) With up to 87 percent humidity, a
temperature of 101 degrees would have felt closer to 110 degrees. (Id. at ¶ 114.) Yet, “[n]o one
from UTMB or TDCJ did anything to cool the indoor temperatures or remove prisoners
vulnerable to such extreme heat.” (Id. at ¶ 116.)

2

On this day, Officer Kerry Collard was responsible for supervising Mr. Martone’s cell
block. (Id. at ¶ 118.) Officer Collard sent Mr. Martone to the infirmary around 6:00 p.m. after
Mr. Martone complained of feeling “very sick” for the past two days and throwing up. (Id.) As
Sergeant Ford escorted Mr. Martone to the infirmary, Mr. Martone explained that he “was
experiencing difficulty breathing, dizziness, and feeling very dry ‘despite drinking mass amounts
of water.’” (Id. at ¶ 119.)
Peggy McCleskey, a licensed vocational nurse, was the only staff in the infirmary at that
time. (Id. at ¶ 120.) “Uninterested in doing her job and performing even a basic evaluation of
Martone, McCleskey simply preferred to make sure she left work on time.” (Id. at ¶ 121.) Ms.
McCleskey used videoconference to connect Mr. Martone with Patricia Rye, a registered nurse at
another prison. (Id. at ¶ 122.) “Despite knowing Mr. Martone took medications that react
dangerously with the heat to treat his disabilities, and he had been suffering classic symptoms of
heat stroke for two days, Nurse Rye dismissed his concerns.” (Id. at ¶ 123.) Ms. Rye told Mr.
Martone that it was “nothing serious” and directed him to drink water, rest, and return to the
infirmary in the morning. (Id.) Ms. Rye did not take his temperature or otherwise evaluate him
for heat stroke. (Id. at ¶ 124.)
Mr. Martone had no choice but to return to the heat of his cell block since the infirmary
closed around 7:00 p.m. each day. (Id. at ¶ 125.) He returned to the stifling common area,
talking to himself. (Id. at ¶ 126.) Officer Collard asked if he was alright, but Mr. Martone “was
only able to mumble and could not respond.” (Id. at ¶ 126.) Officer Collard did nothing further
to assist Mr. Martone. (Id. at ¶ 127.)
Less than an hour later, Officer Collard saw Mr. Martone grasping the bars on the cell
block’s windows. (Id. at ¶ 128.) Mr. Martone began convulsing and collapsed. (Id.) There was

3

no medical staff left for the night at the Huntsville Unit as Mr. Martone slipped in and out of
consciousness. (Id. at ¶¶ 128 and 130.) “After at least a 20 minute delay, Collard’s supervisors
finally called 911.” (Id. at ¶ 131.) The ambulance did not arrive until “about an hour after
Martone first collapsed.” (Id.) He was pronounced dead soon after he arrived in the emergency
room. (Id. at ¶ 133.) At the time of his death, Mr. Martone’s body temperature was 108 degrees.
(Id. at ¶ 134.)
Mr. Martone was one of fourteen prisoners who have died in TDCJ prisons from heatrelated causes since 2007. (Id. at ¶ 28.) The following table, taken from the Complaint,
summarizes the deaths:
Name
James Shriver

Age
47

Unit
Byrd

Death of Death
Aug. 8, 2007

Body Temp.
Unk.

Dionicia Robles

54

Byrd

Aug. 13, 2007

Unk.

Douglas Hudson

62

Gurney

July 25, 2011

105

Larry McCollum

58

Hutchins

July 28, 2011

109.4

Thomas Meyers

46

Coffield

Aug. 3, 2011

105.6

Robert Allen
Webb

50

Hodge

Aug. 4, 2011

Unk.

Alexander
Togonidze
Charles Cook

44

Michael

Aug. 8, 2011

106+

53

Hodge

Aug. 8, 2011

107.9

Michael Martone

57

Huntsville Aug. 8, 2011

106.5

Kelly Marcus
Kenneth Wayne

36
52

Connally
Gurney

Unk.
108

Aug. 12, 2011
Aug. 13, 2011
4

Medical History
Hypertension,
prescriped
psychotropics
Prescribed
psychotropics
Hypertension,
prescribed
medication “known
to interfere with heat
dissipation”
Diabetic, prescribed
diuretic
Hypertension,
prescribed
psychotropics
Developmentally
disabled, prescribed
psychotropics
Diabetic, prescribed
psychotropics
Developmentally
disabled, prescribed
psychotropics
Prescribed
psychotropics
Prescribed diuretic
Prescribed diuretic

James
Daniel Alvarado

44

Huntsville Aug. 20, 2011

105.2

Rodney Adams

45

Gurney

Aug. 3, 2012

109.9

Albert Hinojosa

44

Garza
West

Aug. 27, 2012

Unk.

Prescribed
psychotropics
Prescribed
psychotropics

(See id.) TDCJ officials nevertheless stated that the “TDCJ was doing a ‘wonderful job’ and
[didn’t] have a problem with heat-related deaths.” (Id. at ¶ 32.)
Plaintiff alleges that the chain of command within TDCJ and UTMB did nothing to
protect prisoners with heat-sensitive medical conditions, like Mr. Martone, from the extreme heat
at the Huntsville Unit. Brad Livingston is the Executive Director of the TDCJ. (Id. at ¶ 8.) Rick
Thaler is the Director of TDCJ’s Correctional Institutions Division, which manages all aspects of
TDCJ’s prison facilities. (Id. at ¶ 10.) William Stephens is the Deputy Director of TDCJ’s
Correctional Institutions Division. (Id. at ¶ 11.) Richard Alford supervised thirteen prisons in
“Region I,” of which the Huntsville Unit is one. (Id. at ¶ 12.) James Jones was the Warden for
the Huntsville Unit. (Id. at ¶ 8.) Dr. Lanette Linthicum is the Director of TDCJ’s Health
Services Division, which supervises all medical care providers at all TDCJ facilities. (Id. at ¶
14.) TDCJ has partnered with UTMB to provide health care to 80 percent of TDCJ prisoners,
including the prisoners at the Huntsville Unit. (Id. at ¶ 19.) Dr. Owen Murray is the Chief
Physician Executive for UTMB’s Correctional Managed Care program. (Id. at ¶ 13.)
According to Plaintiff, it was “well known to TDCJ and UTMB leadership, including the
Defendants, that people with certain medical conditions,” like Mr. Martone, “are much more
vulnerable to extreme temperatures.” (Id. at ¶ 27.) The heat-related deaths “were regularly
discussed at meetings Thaler and Stephens held with their deputies, including Alford.” (Id. at ¶
33.) TDCJ and UTMB promulgated policies that barred prisoners with heat-sensitive conditions

5

from “work[ing] or recreat[ing] in environments where the apparent air temperature is 95° F or
higher.”

(Id. at ¶ 45.)

No action has been taken to protect prisoners with heat-sensitive

conditions where they live and sleep. (Id. at ¶¶ 45-46.)
In addition to these hazardous conditions, Plaintiff alleges a policy whereby no medical
staff is available at the Huntsville Unit between 7:00 p.m.2 and 9:00 a.m. (Id. at ¶ 57.) “Instead,
prisoners needing after-hours medical care are evaluated by videoconference by nurses working
at the nearby Estelle Unit, who are not capable of making medical treatment decisions.” (Id. at ¶
58.)
Finally, Plaintiff alleges that the training provided to officers and nurses “is grossly
inadequate and effectively amounts to no training at all.” (Id. at ¶ 62.) The same training
materials are read aloud to officers every year, and have not been updated despite the many heatrelated deaths. (Id.) Plaintiff alleges that “[l]arge portions of the 2010 circular even discussed
preventing heat-related illnesses in pets.” (Id. at ¶ 63.)
Plaintiff brought a claim under § 1983 against Defendants Mr. Livingston, Mr. Thaler,
Mr. Stephens, Mr. Alford, Mr. Jones, Dr. Linthicum, Dr. Murray, Officer Collard, Ms. Rye, and
Ms. McCleskey for violating his rights under the Eighth and Fourteenth Amendments. (Id. at ¶¶
136-46.) Plaintiff brought another claim against Defendants TDCJ and UTMB for violation of
the Americans with Disabilities Act, Americans with Disabilities Act Amendment Act, and the
Rehabilitation Act. (Id. at ¶¶ 147-54.) Finally, Plaintiff brought a claim against Defendant
UTMB for negligence. (Id. at ¶¶ 155-59.)

2

In different places, the Complaint alleges that medical staff left the Huntsville Unit at 6:00 p.m. (see Doc. No. 1 at
¶¶ 57, 59, and 61), and 7:00 p.m. (id. at ¶ 125). For the sake of consistency, the Court uses the latter of the two
times.
6

II.

LEGAL STANDARD
A. Motion to Dismiss
A court may dismiss a complaint for a “failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint
‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for
entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to
relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, a complaint must
contain sufficient factual matter that, if it were accepted as true, would “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 570). A claim has facial plausibility “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S at 556). The plausibility standard “is not akin to a
‘probability requirement,’” though it does require more than a “sheer possibility” that a
defendant has acted unlawfully. Id.
Ultimately, the question for the court to decide is whether the complaint states a valid
claim when viewed in the light most favorable to the plaintiff. The court must accept wellpleaded facts as true, but legal conclusions are not entitled to the same assumption of truth.
Iqbal, 556 U.S. at 678 (citation omitted). The court should not “strain to find inferences
favorable to the plaintiffs” or “accept ‘conclusory allegations, unwarranted deductions, or legal
conclusions.’” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (quoting
Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)). The
court should not evaluate the merits of the allegations, but must satisfy itself only that plaintiff

7

has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal
Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
B. Qualified Immunity
Qualified immunity shields government officials performing discretionary functions from
liability for civil damages so long as their conduct does not violate clearly established rights of
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate
the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.
2002) (en banc). In the context of a motion to dismiss, the plaintiff’s burden is discharged if “the
plaintiff’s pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (quoting Wicks v. Miss. State
Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995).
To overcome a defense of qualified immunity, the plaintiff must satisfy a “two-prong
test.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). First, the plaintiff
must allege that the defendants committed a constitutional violation under current law. Id.
Second, the plaintiff must allege that “the defendants’ actions were objectively unreasonable in
light of the law that was clearly established at the time of the actions complained of.” Id. The
order by which the Court evaluates these two questions is now left to the Court’s discretion.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
III.

ANALYSIS FOR SUPERVISOR DEFENDANTS
Only one of the individual Defendants at issue, Ms. Rye, was personally involved in the

events leading up to Mr. Martone’s death. Executive Director Brad Livingston, Institutional
Division Director Rick Thaler, and Deputy Institutional Division Director William Stephens

8

(hereinafter, “TDCJ Defendants”) were the three highest ranking TDCJ Executives at the time of
Mr. Martone’s death.

Dr. Owen Murray was the Chief Physician Executive for UTMB’s

Correctional Managed Care Program. The TDCJ Defendants and Dr. Murray assert that they are
entitled to qualified immunity due to Plaintiff’s failure to state a violation of a clearly established
constitutional right, and assert that Plaintiff has failed to state a claim for relief under § 1983
absent allegations of their personal involvement. (Doc. Nos. 8 and 27.)
The Court addresses whether Plaintiff has stated a claim for relief under § 1983 before
considering whether Plaintiff has alleged sufficient facts to defeat a qualified immunity defense.
See, e.g., Tipps v. McCraw, 2013 WL 5929705 (W.D. Tex. Nov. 1, 2013) (not reaching the
question of qualified immunity since the plaintiff had failed to state a claim for relief for
supervisory liability under § 1983).

“Section 1983 provides a private right of action for

violations of federal law by those acting under color of state law.” Wells v. Thaler, 460 Fed.
App’x 303, 308 (5th Cir. 2012). To bring a claim under § 1983, a plaintiff must (1) allege 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. Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). The first element overlaps with the
first prong of the qualified immunity defense, which is challenged by Defendants, but there is no
dispute as to the second element.
Section 1983 does not attach liability to supervisory officials for the misdeeds of their
subordinates under a theory of vicarious liability or respondeat superior. Estate of Davis ex rel.
McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Instead, “[a]
supervisory official may be held liable . . . only if (1) he affirmatively participates in the acts that
cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally

9

result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting
Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)). “In
order to establish supervisor liability for constitutional violations committed by subordinate
employees, plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with deliberate
indifference to violations of others’ constitutional rights committed by their subordinates.” Id.
(emphasis in original). Deliberate indifference “is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.” Id. at 446-47.
(quoting Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011)).
A. Mr. Livingston, Mr. Thaler, and Mr. Stephens
1. Whether Plaintiff Stated a Claim for Relief Under § 1983
Plaintiff alleges that the TDCJ Defendants violated the Eighth and Fourteenth
Amendments by subjecting Mr. Martone to “extreme conditions of confinement, specifically
excessive heat, with full knowledge of the dangerousness of those conditions.” (Doc. No. 1 at ¶
137.)
The Eighth Amendment dictates that cruel and unusual punishment shall not be inflicted,
and is applicable to the states by reason of the Due Process Clause of the Fourteenth
Amendment. Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004). Two requirements must be met
for an Eighth Amendment claim challenging conditions of confinement. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). First, “the prison official’s act or omission must be objectively
serious, in that it ‘result[s] in the denial of the minimal civilized measure of life’s necessities.”
Blackmon v. Garza, 484 Fed. App’x 866, 869 (5th Cir. 2012) (quoting Farmer, 511 U.S. at 834).
For a claim based on a failure to prevent harm, “the inmate must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Second,

10

“the ‘prison official must have a sufficiently culpable state of mind,’ meaning that the official
was ‘deliberate[ly] indifferen[t] to inmate health or safety.’” Blackmon, 484 Fed. App’x at 869
(quoting Farmer, 511 U.S. at 834). To be deliberately indifferent, the prison official must know
of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837.
In 2012, the Fifth Circuit considered an inmate’s claim of an Eighth Amendment
violation based on extreme heat at a TDCJ facility, and reversed the district court’s grant of
judgment as a matter of law in favor of the defendants. Blackmon v. Garza, 484 Fed. App’x 866
(5th Cir. 2012). The Fifth Circuit recognized that “[a]llowing a prisoner to be exposed to
extreme temperatures can constitute a violation of the Eighth Amendment.” Id. at 869. First, the
Fifth Circuit found sufficient evidence to allow a jury to conclude that the extreme heat at the
Texas prison “met the threshold for objective seriousness.” Id. at 870. A reasonable jury could
conclude that “the extreme heat in Blackmon’s dorm caused substantial health risks to Blackmon
– a prisoner who . . . was especially susceptible to the health risks of extreme heat because of his
advanced age, pre-existing high blood pressure, and use of prescription medication.” Id. at 872.
Second, the Fifth Circuit found sufficient evidence to allow a jury to conclude that the
defendants were deliberately indifferent to this substantial health risk. Id. A reasonable jury
could conclude that the defendants had “specific knowledge of the risks to Blackmon,” or “that
the heat-related health risks to Blackmon were obvious.” Id. at 873.
In this case, the Court finds that Plaintiff has sufficiently alleged a violation of Mr.
Martone’s Eighth Amendment rights. It is beyond argument that the conditions of confinement
posed a substantial risk of serious harm to Mr. Martone, who was especially susceptible to the
health risks of extreme heat. Though the risks are obvious, Plaintiff has also alleged that the
TDCJ Defendants had actual knowledge of the substantial risk of serious harm. Plaintiff alleges

11

that the TDCJ Defendants knew that the apparent temperature in TDCJ facilities regularly
exceeded 100 degrees, and was particularly dangerous to inmates with certain medical
conditions. (Doc. No. 1 at ¶¶ 27 and 79-81.) In 2010, Defendant Mr. Livingston was added as a
named defendant in the Blackmon case, in which Mr. Blackmon complained of these same risks.
Blackmon, 484 Fed. App’x at 868; Blackmon v. Kukua, No. 2:08-cv-00273 (Doc. No. 120) (S.D.
Tex. Apr. 1, 2010). All three of the TDCJ Defendants are alleged to have known that inmates
were dying of heat stroke in TDCJ facilities. (Id. at ¶ 33.) In recognition of the health risks,
TDCJ prohibited prisoners with heat-sensitive conditions from working or recreating in
environments where the apparent air temperature was 95 degrees or higher. (Id. at ¶ 45.) The
TDCJ Defendants did nothing, however, to protect inmates like Mr. Martone from this known
and substantial health risk.
“A failure to adopt a policy can be deliberately indifferent when it is obvious that the
likely consequence of not adopting a policy will be a deprivation of constitutional rights.”
Porter, 659 F.3d at 446 (quoting Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992)).
In this case, Plaintiff highlights four alleged failures by the TDCJ Defendants. (Doc. No. 33 at
21.) Specifically,
a.) They approved policies that made no accommodation for
vulnerable prisoners during periods of extreme temperatures;
b.) They failed to provide climate controlled housing, or cool the
Huntsville Unit’s housing areas in any way, approving policies and
practices that denied vulnerable prisoners safe housing;
c.) They approved TDCJ policies that make no accommodations
for housing people with medical conditions (like hypertension,
obesity, and depression) known to cause medical emergencies and
death during periods of extreme temperature; and
[d].) They failed to provide after-hours medical care at prisons
where they knew inmates were likely to suffer from heat-sensitive
12

medical conditions.
(Id.)
The Court must disregard the Plaintiff’s fourth argument as insufficiently pled. Plaintiff
cites to paragraphs 57 through 60 in the Complaint in support of this argument (Doc. No. 33 at
21 n.37), but these paragraphs largely attribute the policy decision to Dr. Murray, Dr. Linthicum,
and UTMB. In paragraph 57, Plaintiff alleges that “Dr. Murray, Dr. Linthicum, and UTMB
choose not to employ any medical staff at the Huntsville Unit between [7]:00 p.m. and 9:00
a.m.” (Doc. No. 1 at ¶ 57.) Thus, “Dr. Linthicum, Dr. Murray and UTMB purposefully do not
provide access to doctors or competent medical providers capable of providing treatment
recommendations from [7]:00 p.m. to 9:00 a.m.” (Id. at ¶ 59.) Plaintiff includes the TDCJ
Defendants abruptly in paragraph 60 without explanation: “Livingston, Thaler, Stephens, Alford,
Linthicum, Murray, and UTMB made this decision for financial reasons . . .” (Id. at ¶ 60.) The
Court disregards this conclusory insertion of the TDCJ Defendants into the policy decision at
issue. Plaintiff is given leave to amend should she so choose.
Plaintiff’s remaining arguments can be summarized as alleging that the TDCJ Defendants
failed to implement policies to protect vulnerable prisoners from extreme temperatures. It was
not only obvious, but known, that the failure to protect heat-sensitive inmates from the extreme
temperatures would result in heat-related illness and death. Indeed, fourteen prisoners died of
heat-related causes from 2007 through 2012. (Doc. No. 1 at ¶ 28.) Plaintiff’s allegations that the
TDCJ Defendants failed to act, despite their knowledge of the risks to heat-sensitive inmates and
the resulting heat-related deaths, rises to the level of deliberate indifference sufficient to state a
claim for supervisory liability under § 1983.
The TDCJ Defendants object that they cannot be held liable under § 1983 for the alleged

13

violation of the Eighth Amendment since there is no allegation of their personal involvement in
the conditions of Mr. Martone’s confinement. (See Doc. No. 8 at 11.) To the contrary, Plaintiff
seeks to hold the TDCJ Defendants liable under a theory of supervisory liability for “creating
and approving the dangerous conditions that caused [Mr. Martone’s] heat stroke, and failing to
remedy them.”

(Doc. No. 33 at 24-25.)

Plaintiff has adequately alleged that the TDCJ

Defendants acted, or failed to act, with deliberate indifference to constitutional violations as
necessary for supervisory liability to attach under § 1983. See Porter, 659 F.3d at 446.
2. Whether Plaintiff Overcame Defendants’ Qualified Immunity
The first prong of the qualified immunity analysis asks whether Plaintiff alleged a
violation of constitutional rights under current law. Atteberry, 430 F.3d at 253. The Court has
already determined that Plaintiff stated a violation of the Eighth Amendment sufficient to state a
claim for relief under § 1983. For the same reasons, the Court finds that Plaintiff stated a
violation of the Eighth Amendment sufficient to satisfy the first prong of the qualified immunity
analysis.
The TDCJ Defendants may nevertheless be immune from liability for their allegedly
unconstitutional actions if their actions did not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” See Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “[T]he salient
question is whether the state of the law at the time of the incident provided fair warning to the
defendants that their alleged conduct was unconstitutional.” Id. (quoting Hope, 536 U.S. at 741)
(internal quotation marks omitted). “The law can be clearly established ‘despite notable factual
distinctions between the precedents relied on and the cases then before the Court, so long as the
prior decisions gave reasonable warning that the conduct then at issue violated constitutional

14

rights.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope, 536 U.S. at 740).
The Court recognizes that the Blackmon decision, which provides the clearest iteration of
a prisoner’s right to be free from extreme temperatures, was not written until after Mr. Martone’s
death. Blackmon v. Garza, 484 Fed. App’x 866 (5th Cir. 2012). Nevertheless, two prior cases –
relied upon by the Fifth Circuit in Blackmon – made clear that deliberate indifference to the
probability of heat-related illness and death violated the Eighth Amendment. In Gates v. Cook,
the Fifth Circuit affirmed an injunction to provide fans, ice water, and daily showers when the
heat index was 90 degrees or above since the heat presented a substantial risk of serious harm to
the inmates to which the defendants were deliberately indifferent. 376 F.3d 323, 339-40 (5th
Cir. 2004); see also Blackmon, 484 Fed. App’x at 869-70.

In Valigura v. Mendoza, the Fifth

Circuit affirmed the denial of a motion for summary judgment based on evidence of an Eighth
Amendment violation, including “excessive heat.” 265 Fed. App’x 232, 235 (5th Cir. 2008); see
also Blackmon, 484 Fed. App’x at 870.

Accordingly, a reasonable official would have

understood that his failure to protect heat-sensitive inmates from the known risks of extreme heat
violated the Eighth Amendment.3
The Court therefore finds that Plaintiff has alleged sufficient facts that would defeat
qualified immunity, but significant unanswered questions cause this Court to hesitate before
definitively ruling on this issue. In parallel litigation within Texas, Judge Ramos and Judge
Schneider have noted significant questions that are “particularly important when evaluating the
second prong of the qualified immunity test – the reasonableness of [Defendants’] actions in
light of the clearly established constitutional right.” Webb v. Livingston, No. 6:13-cv-711, 2014
WL 1049983, at *8 (E.D. Tex. Mar. 14, 2014) (Schneider, J.) (quoting Morgan v. Hubert, 335
3

The Court does not hold that the TDCJ Defendants were required to provide air conditioning in the facilities, but
that they were required to do more to protect prisoners in their care with heat-sensitive disabilities from the lifethreatening conditions in which they lived.
15

Fed. App’x 466, 473 (5th Cir. 2009)); Hinojosa v. Livingston, No. 2:13-cv-319, 2014 WL
1276199, at *7 (S.D. Tex. Mar. 27, 2014) (Ramos, J.). Judge Ramos summarized the following
issues:


When and how the TDCJ Defendants learned about specific
prisoner deaths . . . and/or serious injury related to extreme heat;



Whether the TDCJ Defendants ordered that conditions be
monitored or a study conducted regarding extreme heat and inmate
safety;



Their familiarity with Fifth Circuit case law addressing the dangers
of heat within the context of the Eighth Amendment and whether
or not policies were implemented or changed in accordance with
such direction;



Whether the TDCJ has performed any studies into the costs of
reducing extreme temperatures within the dorms via more efficient
systems, engineering modifications, or other facility upgrades;



Whether the TDCJ Defendants personally consulted with UTMB
officials in regards to the transportation and housing of at-risk
inmates during the summer months;



Whether the TDCJ Defendants considered that at-risk inmates be
maintained in air-conditioned facilities when in transport;



And whether the TDCJ Defendants received copies of notes,
memoranda, emails, or other correspondence from TDCJ wardens
concerning heat-related issues at their units and any administrative
responses thereto.

Hinojosa, 2014 WL 1276199 at *7. As a result, Judge Schneider deferred the question of
qualified immunity until discovery on the subject was complete. Webb, 2014 WL 1049983, at
*8. Judge Ramos denied the Defendants’ Motion to Dismiss without deciding the question of
qualified immunity. Hinojosa, 2014 WL 1276199 at *9 & n.6.
The Fifth Circuit delineated “a careful procedure under which a district court may defer
16

its qualified immunity ruling if further factual development is necessary to ascertain the
availability of that defense.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). The Court
must find that the plaintiff has pled “specific facts that both allow the court to draw the
reasonable inference that the defendant is liable for the harm he has alleged and that defeat a
qualified immunity defense with equal specificity.” Id. “[I]f the court remains ‘unable to rule on
the immunity defense without further clarification of the facts,’ it may issue a discovery order
‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’” Id.
(citation omitted).
In this case, Plaintiff has pled specific facts that allow this Court to draw the reasonable
inference that the TDCJ Defendants are liable under § 1983 for violations of Mr. Martone’s
Eighth and Fourteenth Amendment rights, and that defeat the TDCJ Defendants’ assertion of
qualified immunity. The Court remains unable to rule on the second prong of the qualified
immunity defense given outstanding factual questions. Pursuant to the procedure established in
Backe, the Court DEFERS ruling on qualified immunity and allows limited discovery to resolve
the issue.

Discovery is limited to the personal knowledge and personal conduct of each

Defendant as it relates to Mr. Martone and the circumstances that led to his death.4

4

The Court adopts the guidelines for limited discovery put forth in the Webb and Hinojosa cases. See Webb, 2014
WL 1049983, at *10; Hinojosa, 2014 WL 1276199 at *8. Following their direction, discovery in this case may
include the TDCJ Defendants’ knowledge of extreme temperatures at the Huntsville Unit, including knowledge of
any prisoner complaints to prison officials about the temperatures in the dorms or cells for the months of May
through September for the years of 2007 through 2011. Discovery may also relate to each Defendant’s personal
knowledge, if any, of the effects of extreme heat on pre-existing medical conditions, such as hypertension,
depression, and obesity, and whether the TDCJ Defendants have knowledge or training concerning the interaction of
medications with extreme heat. Plaintiff may inquire into any advice that the TDCJ Defendants received or gave
regarding the Huntsville Unit, Mr. Martone, and management of extreme temperatures as it relates to this case. This
may include discovery as to any policies or procedures adopted or in place to address prison operations when
temperatures are considered to constitute extreme heat, and whether these policies or procedures, if any, were
followed in this case.
17

B. Dr. Murray
1. Whether Plaintiff Stated a Claim for Relief Under § 1983
Plaintiff alleges that Dr. Murray violated the Eighth and Fourteenth Amendments by
subjecting Mr. Martone to “extreme conditions of confinement” and denying him medical care.
(Doc. No. 1 at ¶¶ 137-39, 143.)
As explained above, deliberate indifference to the objective health risks of extreme
temperatures to heat-sensitive inmates constitutes an Eighth Amendment violation and states a
claim under § 1983. See also Blackmon v. Garza, 484 Fed. App’x at 869. Plaintiff pleads that
Dr. Murray, like the TDCJ Defendants, actually knew of the substantial health risks. Dr. Murray
had personally visited the Huntsville Unit and had remarked to the press that the cells were
“blazing hot” in the summer. (Doc. No. 1 at ¶ 38.) He knew of the serious health risks
associated with these extreme temperatures (Id. at ¶ 37), and reviewed reports from TDCJ’s
Emergency Action Center that tracked the heat-related injuries and deaths (Id. at ¶ 93). Dr.
Murray nevertheless did nothing to protect vulnerable prisoners, like Mr. Martone, from these
known and obvious risks. (Id. at ¶ 37, 139.)
Deliberate indifference to a prisoner’s serious medical needs also constitutes an Eighth
Amendment violation. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “Although the Eighth
Amendment does not, by its precise words, mandate a certain level of medical care for prisoners,
the Supreme Court has interpreted it as imposing a duty on prison officials to ensure that inmates
receive adequate medical care.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting
Farmer, 511 U.S. at 832) (internal quotation marks omitted). The denial of medical care violates
the Eighth Amendment if it is the result of deliberate indifference to serious medical needs.
Estelle, 429 U.S. at 104.

“The mere delay of medical care can also constitute an Eighth

18

Amendment violation but only ‘if there has been deliberate indifference [that] results in
substantial harm.’” Easter, 429 F.3d at 463 (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993)).
Plaintiff alleges that Mr. Martone failed to receive basic medical care while suffering heat
stroke due to Dr. Murray’s policy of keeping no medical staff at the Huntsville Unit between
7:00 p.m. and 9:00 a.m., and his failure to properly train the remaining staff. (Doc. No. 1 at ¶¶
59 and 139.) Medical staff left the Huntsville Unit at 7:00 p.m. every night, and did not return
until 9:00 a.m. the next morning. (Id. at ¶¶ 57 and 125.) For fourteen hours each night, no
medical staff is on site. (Id. at ¶ 61.) Prisoners’ only access to medical care overnight is to
videoconference with licensed vocational nurses at another facility, who could not, by law,
diagnose or treat patients. (Id. at ¶ 58.) In order for prisoners to receive immediate medical care
overnight, they had to be transported to a hospital by ambulance. (Id. at ¶ 61.)
This policy institutionalized a delay in medical care, and may be better characterized as a
denial of medical care given the allegations that the nurses, who stood between the inmates and
their access to basic medical care, were insufficiently trained. (Id. at ¶ 62.) Far from “an
inadvertent failure to provide adequate medical care,” Estelle, 429 U.S. at 105, Dr. Murray is
alleged to have purposefully left the prisoners without adequate medical care overnight, and
failed to train the available remote nurses about the dangers of the extreme temperatures. The
serious risk posed by the delay, or possible denial, of medical care is highlighted by the fact that
most of the men who have died of heat stroke since 2007 “collapsed in the middle of the night, or
were found dead early in the morning.” (Doc. No. 1 at ¶ 31.) Given his knowledge of the
weather conditions, the number of prisoners whose health made them especially vulnerable to
intense heat, and the prior heat-related deaths, Dr. Murray's actions rise to the level of deliberate

19

indifference.
Like the TDCJ Defendants, Dr. Murray argues that Plaintiff has failed to allege facts
sufficient to establish supervisory liability under § 1983. (See Doc. No. 27 at 10-11.)

Plaintiff

responds that Dr. Murray can be held liable for his actions as a policymaker and supervisor. As
the Chief Physician Executive for UTMB’s Correctional Managed Care Program, Dr. Murray
“oversees the medical, mental health, and dental services provided to prisoners within more than
100 units.” (Doc. No. 1 at ¶ 13.) Plaintiff specifies that Dr. Murray is not being sued as Mr.
Martone’s treating physician, but as the UTMB policymaker who failed to protect inmates from
the extreme temperatures and the corresponding medical risks.

(Doc. No. 32 at 13.)

Specifically, Plaintiff alleges that Dr. Murray (1) failed to implement policies that protected heatsensitive inmates from extreme heat, (2) ended after-hours medical care at the Huntsville Unit,
and (3) failed to train prison employees about the dangers of extreme temperatures. (Id. at 1013.)
The first argument concerns Dr. Murray’s failure to implement policies. As with the
TDCJ Defendants, “[a] failure to adopt a policy can be deliberately indifferent when it is obvious
that the likely consequences of not adopting a policy will be a deprivation of constitutional
rights.” Porter, 659 F.3d at 446 (quoting Rhyne, 973 F.2d at 392). Plaintiff alleges that Dr.
Murray knew of the extreme heat and the danger this posed to inmates with certain health
conditions. (Doc. No. 1 at ¶¶ 37-38.) “However, despite knowing that medically vulnerable
inmates spend most of their time inside, and despite knowing that indoor temperatures at the
Huntsville Unit and other prisons routinely exceed 100 degrees in the summer, . . . Dr. Murray
[has] not instituted any practice or policy concerning safely housing inmates known to be
especially vulnerable to the heat.” (Id. at ¶ 46.) In light of Dr. Murray’s alleged knowledge, the

20

Court finds that his failure to adopt a policy to protect heat-sensitive inmates sufficiently pleads
deliberate indifference for supervisory liability.
The second argument concerns Dr. Murray’s policy of ending after-hours medical care.
To find supervisory liability for a policy, the policy must be “so deficient that the policy itself is
a repudiation of constitutional rights, and is the moving force of the constitutional violation.”
Brown v. Bolin, 500 Fed. App’x 309, 314 (5th Cir. 2012) (citing Thompkins v. Belt, 828 F.2d
298, 304 (5th Cir. 1987)). The Supreme Court has held that “the State has a constitutional
obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has
incarcerated.” West v. Atkins, 487 U.S. 42, 54 (1988). In this case, Plaintiff alleges that Dr.
Murray “purposefully do[es] not provide access to doctors or competent medical providers
capable of providing treatment recommendations from [7]:00 p.m. to 9:00 a.m.” (Doc. No. 1 at ¶
59.)

Especially in light of the number of previous heat-related deaths, and the known

vulnerabilities of many of the inmates, Dr. Murray’s alleged policy left inmates at the Huntsville
Unit without a system of access to adequate medical care for fourteen hours, and resulted in Mr.
Martone’s death. The Court finds these allegations sufficient to state a claim for deliberate
indifference under § 1983.
The third argument concerns Dr. Murray’s failure to adequately train medical
professionals to identify heat-related trauma. A supervisor may be liable for failure to train or
supervise if “(1) the supervisor either failed to supervise or train the subordinate official; (2) a
causal link exists between the failure to train or supervise and the violation of the plaintiff’s
rights; and (3) the failure to train or supervise amounts to deliberate indifference.” Goodman v.
Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (quoting Smith v. Brenoettsy, 158 F.3d 908, 91112 (5th Cir. 1998)); Porter, 659 F.3d at 446. Plaintiff alleges that Dr. Murray and Dr. Lanette

21

Linthicum were responsible for training the nurses who staff UTMB’s infirmaries. (Doc. No. 1
at ¶ 64.) According to the Complaint, training to identify heat-related illnesses consisted of no
more than listening to a training circular, which focused on “employees staying hydrated” and
discussed “preventing heat-related illness in pets,” as it was read aloud. (Id. at ¶¶ 62-63.)
Plaintiff alleges that this failure to train the nurses to recognize symptoms of heat stroke resulted
in more heat-related deaths, including Mr. Martone’s. (Id. at ¶ 64.) The Court finds this failure
to adequately train nurses to recognize the symptoms of heat stroke, despite Dr. Murray’s
knowledge of the extreme heat and the recent heat-related deaths, sufficiently pleads deliberate
indifference.
2. Whether Plaintiff Overcame Defendant’s Qualified Immunity
For the same reasons described above, the Court finds that Plaintiff has adequately stated
violations of the Eighth Amendment based on Dr. Murray’s alleged failure to implement policies
to protect inmates from the extreme heat, alleged policy of leaving the inmates without adequate
medical care each night, and alleged failure to adequately train the staff about the risk of heat
stroke.
The second prong of the qualified immunity analysis asks whether the Defendants’
actions were objectively unreasonable in light of the law that was clearly established at the time
of the actions complained of. Atteberry, 430 F.3d at 253. As explained above, the constitutional
imperative to protect inmates from the risks inherent in extreme temperatures was clearly
established at the time of Mr. Martone’s death. Dr. Murray’s failure to protect heat-sensitive
inmates from the known risk of death due to the extreme temperatures at the Huntsville Unit was
objectively unreasonable in light of this clearly established law.
The Court also finds that the constitutional imperative to “provide medical care for those

22

whom [the government] is punishing” has been clearly established for many years. See Estelle,
429 U.S. at 103. At oral argument, counsel for Dr. Murray noted that there is no clear case law
requiring the on-site presence of medical staff at all hours. (See also Doc. No. 8 at 9 (“The
[Fifth] Circuit has never held that use of video conferencing and a local private medical hospital
for care, violates clearly established law, when a correctional facility relies on these alternatives
to provide medical care to its offenders during certain time periods.”)) The contours of the law
are clearly established, however, that the denial or delay of adequate medical care constitutes a
violation of the Eighth Amendment. See Easter, 459 F.3d at 463. In Bias v. Woods, for
example, the Fifth Circuit affirmed the district court’s denial of qualified immunity when a
doctor transported an inmate in need of immediate medical attention to a prison unit 150 miles
away since “a reasonable person would have known that her conduct . . . would cause a
significant delay, if not a complete denial, of medical care.” 288 Fed. App’x 158, 162-63 (5th
Cir. 2008).5

In this case, Dr. Murray left inmates for fourteen hours with no more than

videoconference capabilities to nurses, who were inadequately trained to recognize the
symptoms of heat stroke, despite the serious risk of heat-related illness and death during the
summer months in Texas. Dr. Murray’s policy necessarily contemplated a significant delay, if
not complete denial, of adequate medical care in violation of clearly established law.
5

More recently, the Fifth Circuit expressed its concern with a policy that staffed the Wichita County Jail with
licensed vocational nurses overnight when these nurses were inadequately trained and were discouraged from
calling the supervising physician after-hours. Brown v. Bolin, 500 Fed. App’x 309, 313, 317 (5th Cir. 2012). The
Fifth Circuit stated that the pretrial detainee “had a clearly established Fourteenth Amendment right not to be denied
medical care as a result of deliberate indifference.” Id. at 312 (emphasis added). The Fifth Circuit held that the
supervising physician was immune from liability since he did not know of the decedent’s medical problems or that
the broader system of medical care was deficient. Id. at 315-16. As summarized in Judge Dennis’s partial
concurrence and partial dissent, the majority held that the supervising physician “should not be held liable because
there was insufficient evidence that he knew his policy of nighttime inaccessibility for medical advice or
authorization of emergency hospitalization would cause substantial risk of harm to prisoners due to their inadequate
medical treatment at the jail.” Id. at 318 (Dennis, J., concurring in part and dissenting in part). The majority noted
that “there have been two documented cases of improper assessment by the nursing staff at the jail since Brown’s
death . . . [which] may be sufficient to put the [defendants] on notice that their present policies may be likely to
endanger the constitutional rights of the inmates in the Wichita County Jail.” Id. at 317. In this case, there can be no
question that Dr. Murray knew of the system’s inadequacy due to the recurring heat-related deaths overnight.
23

As with the TDCJ Defendants, the Court remains unable to rule on the immunity defense
without further clarification of the facts, particularly as they relate to the reasonableness
question. In addition, the Court requires more information as to the delay resulting from Dr.
Murray’s policy of leaving the Huntsville Unit’s infirmary unstaffed overnight. Pursuant to the
procedure established in Backe, the Court DEFERS ruling on qualified immunity and allows
limited discovery. Discovery is limited to the personal knowledge and personal conduct of Dr.
Murray as it relates to Mr. Martone and the circumstances that led to his death.
IV.

ANALYSIS FOR MS. RYE
Ms. Rye was the registered nurse who spoke with Mr. Martone via videoconference on

the night of his death. (Doc. No. 1 at ¶ 15.) Plaintiff brings a § 1983 claim against Ms. Rye for
denial of medical care in violation of his Eighth and Fourteenth Amendment rights. Ms. Rye
moves to dismiss Plaintiff’s claim against her based on qualified immunity. (Doc. No. 28.) She
argues that Plaintiff fails to specify facts that meet the high standard of deliberate indifference
required for an Eighth Amendment violation, and fails to allege that Ms. Rye’s actions were
objectively unreasonable in light of the facts and circumstances that existed at the time. (Id. at
7.)
To satisfy the first prong of the qualified immunity analysis, Plaintiff must allege that Ms.
Rye acted with deliberate indifference to Mr. Martone’s serious health needs, in violation of the
Eighth Amendment. To be deliberately indifferent, a defendant must “know[] of and disregard[]
an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “Deliberate indifference
is an extremely high standard to meet.” Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752,
756 (5th Cir. 2001). “It is indisputable that an incorrect diagnosis by prison medical personnel
does not suffice to state a claim for deliberate indifference. Rather the plaintiff must show that

24

the officials ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for any serious
medical needs.”

Id.

(quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).

“Furthermore, the decision whether to provide additional treatment ‘is a classic example of a
matter for medical judgment.’” Id. (quoting Estelle, 429 U.S. at 107.) “[A]ctions and decisions
by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate
indifference and do not divest officials of qualified immunity.” Hernandez ex rel. Hernandez v.
Texas Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 883 (5th Cir. 2004).
Plaintiff alleges that Ms. Rye was “uninterested in treating Martone.” (Doc. No. 1 at ¶
123.) Plaintiff sketches the following interaction between Mr. Martone and Ms. Rye:
Despite knowing Mr. Martone took medications that react
dangerously with the heat to treat his disabilities, and he had been
suffering classic symptoms of heat stroke for two days, Nurse Rye
dismissed his concerns. Rye told Martone it was ‘nothing serious.’
Rye merely said to drink water and ‘rest.’ She told him to go to
sleep and ‘see medical when they returned in the morning. Rye
did not take his temperature, or otherwise evaluate him for heat
stroke. Despite his obviously precarious condition and request for
help, Rye ordered the correctional officers to take Mr. Martone
back to the cell block.
(Id. at ¶¶ 123-24.)

Plaintiff argues that this cursory conversation does not amount to an

“examination” of Mr. Martone. (Doc. No. 35 at 6.) Ms. Rye “took no steps to make a medical
assessment of Martone – she did not even take his temperature, which was likely extremely
elevated as it soon reached 108, or record any other vital signs.” (Id.)
Ms. Rye argues that the facts alleged do not and cannot show that “Ms. Rye refused to
treat plaintiff, ignored his complaints, or even that she perceived any risk of serious harm to
Martone’s health.” (Doc. No. 28 at 7.) According to the Complaint, Ms. Rye told Mr. Martone
that his condition was “nothing serious.” (Doc. No. 1 at ¶ 123.) At oral argument, counsel for
25

Ms. Rye argued that this negates the necessary knowledge component for an Eighth Amendment
violation. Furthermore, Plaintiff alleges facts that show that Ms. Rye saw Mr. Martone and gave
him instructions to drink water, rest, and see a medical provider if he did not feel well in the
morning. (Id.) Ms. Rye argues that these facts do not rise to the level of deliberate indifference.
(Doc. No. 28 at 7.)
After reviewing the allegations, the Court finds that Plaintiff has adequately pled Ms.
Rye’s deliberate indifference to Mr. Martone’s serious health needs. Plaintiff alleges that Ms.
Rye knew that Mr. Martone took medications that react dangerously with the heat, and that he
had been suffering classic symptoms of heat stroke for two days. (Doc. No. 1 at ¶ 123.) The fact
that she may have told Mr. Martone that it was “nothing serious” does not negate her alleged
knowledge to the contrary. Despite her alleged knowledge of Mr. Martone’s symptoms and
medications, Ms. Rye failed to take the rudimentary step of taking Mr. Martone’s vital signs.
(Id. at ¶ 124.) In so doing, Ms. Rye essentially refused to treat Mr. Martone. The Court finds the
Eleventh Circuit persuasive in its logic that “[w]hen the need for treatment is obvious, medical
care which is so cursory as to amount to no treatment at all may amount to deliberate
indifference.” Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989); see also Bingham v. Thomas,
654 F.3d 1171, 1176 (11th Cir. 2011).
Ms. Rye may ultimately prove that she did not know of Mr. Martone’s symptoms, or
made a tragic misdiagnosis. At this stage, the Court finds that Plaintiff’s allegations allow the
Court to draw the reasonable inference that Ms. Rye was deliberately indifferent when she failed
to investigate the known symptoms of heat stroke presented by Mr. Martone hours before his
death. See, e.g., McCoy v. Texas Dep’t of Criminal Justice, 2006 WL 2434289, at *7 (S.D. Tex.
Aug. 21, 2006) (holding that a jury could find deliberate indifference based in part on the

26

defendant’s failure to take the inmate’s pulse, attempt CPR, or conduct a serious examination of
him).
The second prong of the qualified immunity analysis requires this Court to consider
whether “the defendant’s actions violated ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Flores v. City of Palacios, 381 F.3d 391, 395
(5th Cir. 2004) (citation omitted). “Since Estelle v. Gamble, state officers have been on notice
that deliberate indifference to a prisoner’s serious medical needs violates the Eighth
Amendment.” Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (internal citation omitted).
Plaintiff alleges that Ms. Rye failed to take Mr. Martone’s vital signs despite knowledge that he
had exhibited classic symptoms of heat stroke for two days, and was on medication that made
him particularly sensitive to heat stroke. Ms. Rye’s actions were objectively unreasonable in
light of the clearly established law.
Based on the allegations in Plaintiff’s Complaint, Ms. Rye is not entitled to qualified
immunity. The Court DENIES her Motion to Dismiss.
V.

ANALYSIS FOR UTMB
UTMB “partners with TDCJ to provide health care to 80 percent of TDCJ prisoners,

including the prisoners at the Huntsville Unit.” (Doc. No. 1 at ¶ 19.) Plaintiff alleges that
UTMB violated the ADA, the ADAAA, and the Rehabilitation Act, and negligently provided
prescription drugs to Mr. Martone. (Id. at ¶¶ 147-59.) In UTMB’s original Motion to Dismiss,
UTMB argued that Plaintiff’s claims under the ADA and the Rehabilitation Act should be
dismissed for failure to state a claim, and that Plaintiff’s claim under the Texas Tort Claims Act
(“TTCA”) should be dismissed for lack of subject matter jurisdiction. (Doc. No. 26.) In
UTMB’s Amended Motion to Dismiss, UTMB argues only that Plaintiff failed to state a claim

27

under the ADA and the Rehabilitation Act. (Doc. No. 42.) At oral argument, counsel for UTMB
again raised the contention that the Court lacks subject matter jurisdiction over the TTCA claim.
The Court considers both arguments, but finds neither persuasive.
A. Whether Plaintiff Stated a Claim Under the ADA, the ADAAA, and the
Rehabilitation Act
Plaintiff alleges that “TDCJ’s officers and UTMB’s employees intentionally
discriminated against [Mr. Martone], under the meaning of the ADA, ADAAA, and
Rehabilitation Act, by failing and refusing to accommodate his disabilities and protect him from
the extreme temperatures that took his life.” (Doc. No. 1 at ¶ 151.) The language of Title II of
the ADA largely tracks the language of Section 504 of the Rehabilitation Act of 1973, and
“specifically provides that ‘[t]he remedies, procedures and rights’ available under Section 504
shall be the same as those available under Title II.” Hainze v. Richards, 207 F.3d 795, 799 (5th
Cir. 2000) (quoting 42 U.S.C. § 12133). “A disabled plaintiff can succeed in an action under
Title II if he can show that, by reason of his disability, he was either ‘excluded from participation
in or denied the benefits of the services, programs, or activities of a public entity,’ or was
otherwise ‘subjected to discrimination by any such entity.’” Id. (quoting 42 U.S.C. § 12132). A
disabled plaintiff can succeed in an action under Section 504 if he can show that, solely by
reason of his disability, he was “excluded from participation in,” “denied the benefits of,” or
“subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794.6
UTMB first denies that Mr. Martone was disabled as defined by the ADA or the

6

The Fifth Circuit found that “[t]he only material difference between the two provisions lies in their respective
causation requirements.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005). The different
causation requirements, however, are irrelevant when a plaintiff’s claim is premised on a defendant’s failure to make
reasonable accommodations for disabled individuals. Id. at 454-55. “Where a defendant fails to meet this
affirmative obligation, the cause of that failure is irrelevant.” Id.
28

Rehabilitation Act. (Doc. No. 42 at 1.) An individual is “disabled” under these statutes if he has
“a physical or mental impairment that substantially limits one or more [of his] major life
activities.” 42 U.S.C. § 12102(1)(A); 29 U.S.C. § 705(20)(B). Plaintiff alleges that Mr. Martone
suffered from depression, hypertension, and obesity, and thus sufficiently pleads a disability.
(Doc. No. 1 at ¶¶ 100-10.)
UTMB next denies that Mr. Martone was discriminated against because of his disability.
(Doc. No. 42 at 2.) In the prison context, “failure to make reasonable accommodations to the
needs of a disabled prisoner may have the effect of discriminating against that prisoner because
the lack of an accommodation may cause the disabled prisoner to suffer more pain and
punishment than non-disabled prisoners.” McCoy v. Texas Dep’t of Criminal Justice, 2006 WL
2331055, at *7 (S.D. Tex. Aug. 9, 2006). In this case, Plaintiff alleges that UTMB’s failure to
make accommodations for Mr. Martone’s known disabilities led to his death. (Doc. No. 1 at ¶¶
151-53.)
UTMB responds that Plaintiff has failed to specify “what they believe defendant UTMB
should have done or not done” about the extreme heat. (Doc. No. 42 at 2.) Plaintiff’s Complaint
specifically identifies alleged failures in UTMB’s housing recommendations and medical
staffing. Plaintiff alleges that “UTMB makes mandatory housing recommendations to TDCJ for
some prisoners with disabilities – a prisoner using a wheelchair, for example, could not be
assigned to a top bunk.” (Doc. No. 1 at ¶ 47.) UTMB makes no such recommendations,
however, for prisoners with heat-sensitive disabilities. (Id.) Furthermore, Plaintiff alleges that
UTMB chose not to employ any medical staff at the Huntsville Unit between 7:00 p.m. and 9:00
a.m., “even though over 1,700 men are housed there every night and significant numbers (greater
than 10%) suffer from hypertension, take medications for serious medical illnesses, or are

29

otherwise at greater risk from the extreme heat.” (Id. at ¶ 57.) The Court finds these allegations
sufficient to state a claim for relief under the ADA, the ADAAA, and Rehabilitation Act.
B. Whether This Court Has Jurisdiction Over the TTCA Claim
Plaintiff also brings a claim against UTMB for negligently prescribing prescription drugs
to Mr. Martone that increased his risk of heat stroke. (Doc. No. 1 at ¶¶ 155-59.) The TTCA
provides that “[a] suit under this chapter shall be brought in state court in the county in which the
cause of action or a part of the cause of action arises.”

Tex. Civ. Prac. & Rem. Code

§ 101.102(a). UTMB argues that “[t]he TTCA waives sovereign immunity in state court only,”
and that “the Eleventh Amendment bars [Plaintiff’s] TTCA claim against UTMB.” (Doc. No. 26
at 6.)
This Court has original jurisdiction over Plaintiff’s federal claims, and supplemental
jurisdiction over her related state law claims under 28 U.S.C. § 1367. There is no dispute that
this Court has original jurisdiction over Plaintiff’s ADA, ADAAA, and Rehabilitation Act
claims. The Court exercises supplemental jurisdiction over the related TTCA claim. See Jackson
v. Sheriff of Ellis Cnty., Tex., 154 F. Supp. 2d 917, 920 (N.D. Tex. 2001) (finding that “the
federal district courts in this circuit have consistently held that “this ‘venue’ statute does not
defeat federal jurisdiction over lawsuits brought under the Act’”).
VI.

CONCLUSION
The Court DEFERS a decision on the qualified immunity of the TDCJ Defendants and

Dr. Murray.

Although Plaintiff has pled sufficient facts to allow the Court to draw the

reasonable inference that these Defendants are liable for the harm alleged and not protected by
qualified immunity, outstanding factual questions remain as to the reasonableness of their actions
in light of the clearly established law. For this reason, the Court allows limited discovery into

30

the personal knowledge and personal actions of each of these Defendants with respect to the
policies, and lack thereof, that ultimately led to Mr. Martone’s death.
The Court DENIES the Motions to Dismiss filed by Ms. Rye and UTMB. The Court
finds that Plaintiff has adequately alleged that Ms. Rye was deliberately indifferent to the serious
medical needs of Mr. Martone, and that her actions were unreasonable in light of the clearly
established law. The Court also finds that Plaintiff has adequately alleged a violation of the
ADA, ADAAA, and Rehabilitation Act against UTMB, and that it has subject matter jurisdiction
over Plaintiff’s negligence claim.
The TDCJ Defendants objected to Plaintiff’s discovery requests and moved to stay
discovery until the Court ruled on the pending Motions to Dismiss on the basis of qualified
immunity. (Doc. No. 60.) Shortly thereafter, all Defendants filed a Joint Motion to Stay All
New Discovery pending the Court’s resolution of these Motions. (Doc. No. 62.) The Court
hereby DENIES AS MOOT the Motions to Stay given this decision on the Motions to Dismiss.
IT IS SO ORDERED.
SIGNED on this the 16th day of July, 2014.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

31