Dillon v. Jimoh et al

Filing 63

MEMORANDUM AND ORDER GRANTING 61 MOTION for Summary Judgment (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

Case 4:17-cv-03109 Document 63 Filed on 10/23/20 in TXSD Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KYLE MATTHEW DILLON,

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Plaintiff,
v.
ISIAKA JIMOH,
Defendant.

CIVIL ACTION NO. H-17-3109

MEMORANDUM OPINION AND ORDER
Plaintiff, a state inmate proceeding pro se, filed this section 1983 lawsuit seeking
monetary damages against defendant prison officer Isiaka Jimoh for use of excessive force
in violation of the Eighth Amendment.1 Defendant Jimoh filed a motion for summary
judgment (Docket Entry No. 61), to which plaintiff filed a response (Docket Entry No. 62).
Having considered the motion and exhibits, the response, the record, and the
applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this
lawsuit for the reasons shown below.
Background and Claims
Plaintiff claims that, on July 27, 2017, defendant Jimoh used excessive force against
him at the Ferguson Unit in violation of his Eighth Amendment rights. According to

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Plaintiff filed several informal “declarations” throughout this lawsuit, presenting various
allegations or arguments regarding his claims. These additional pleadings can be construed as
supplemental complaints, for which plaintiff did not request or obtain leave to file. The pleadings
(Docket Entries No. 9, 10, 11, and 28) are ORDERED STRICKEN FROM THE RECORD as
improper and unauthorized supplemental complaints.

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plaintiff, Jimoh assaulted him with a rolling security shield and his feet without provocation
or cause when plaintiff posed no threat to him. (Docket Entry No. 1, p. 4.)
In his response to Jimoh’s motion for summary judgment, plaintiff alleges that he saw
Jimoh walking down the run with a rolling security shield and tried to stop him by sticking
his arm and hand out from under his cell door. Jimoh did not stop, so plaintiff grabbed on
to the rolling shield and prevented it from moving. He states that Jimoh walked around the
shield and kicked and stomped on plaintiff’s hand. Plaintiff continued to hold on to the
shield until another, unidentified officer yanked the shield away, cutting plaintiff’s hand in
the process.
Plaintiff seeks monetary, nominal, and punitive damages against Jimoh for
unnecessary and excessive use of force, and asks that criminal charges be brought against
him. Defendant Jimoh argues that plaintiff’s actions constituted an assault and security threat
and that his use of force in light of plaintiff’s actions was objectively reasonable.
Summary Judgment Standards
Summary judgment is appropriate when, viewing the evidence and all justifiable
inferences in the light most favorable to the nonmoving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c). The appropriate inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

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The party moving for summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d
984, 991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions
of pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party, however, “need
not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point out the absence of
evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655
(5th Cir. 1996).
In response, the nonmovant may not rely upon mere allegations contained in the
pleadings and must set forth and support by probative summary judgment evidence specific
facts showing the existence of a genuine issue for trial. Ragas v. Tennessee Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998). Once the moving party makes a properly supported
motion for summary judgment, the nonmoving party must look beyond the pleadings and
designate specific facts in the record to show there is a genuine issue for trial. Stults, 76 F.3d
at 655. Neither “conclusory allegations” nor “unsubstantiated assertions” will satisfy the
nonmovant’s burden. Id.
Summary judgment is mandated if the nonmovant fails to make a showing sufficient
to establish the existence of an element essential to his case on which he bears the burden of
proof at trial. Celotex Corp., 477 U.S. at 322. “In such a situation, there can be ‘no genuine
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issue as to any material fact,’ since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id.
at 322–23.
Analysis
Eleventh Amendment Immunity
Plaintiff sues defendant Jimoh in his individual and official capacity for monetary
damages. To the extent he seeks compensatory damages against Jimoh in his official
capacity as an employee or officer of TDCJ, his claims are barred by Eleventh Amendment
immunity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (holding that the Eleventh
Amendment bars recovery of money damages from TDCJ officers in their official capacity
under section 1983).
Plaintiff’s claims for compensatory damages against defendant Jimoh in his official
capacity are DISMISSED WITH PREJUDICE as barred by Eleventh Amendment immunity.
Plaintiff’s Response Negates His Claim
Plaintiff seeks Eighth Amendment damages against defendant Jimoh for causing the
laceration to his hand. His own summary judgment response, however, negates this claim.
In his response to the motion for summary judgment, plaintiff proffers the following version
of the incident under penalty of perjury:
The incident happened while I was taking extraordinary measures trying to get
the officers to give me some cold water which policy requires staff pass “as
needed.” I had already been ignored by these officers numerous times as they
passed my cell and the SSI had been ordered not to give me any water so as
officer Jimoh came walking down the run towards my cell from the back of the
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run I placed my arm out the bottom of the door attempting to wave the officer
down. He had the rolling shield with him and did not stop but hit my arm with
it and tried to keep going. I closed my hand on the side of the shield farthest
from the officer. His response was to start kicking and stomping on my hand
after he walked around the shield to where my hand was. The other officer
grabbed the shield and started jerking it violently until he ripped my palm
open. Both officers then went down stairs leaving me in my cell bleeding and
did not report the incident.
(Docket Entry No. 62, p. 2, emphasis added.)
Thus, according to his summary judgment response, plaintiff stuck his hand and arm
out the bottom of his cell door to get Jimoh’s attention. Jimoh did not stop, but instead hit
plaintiff’s arm with the rolling shield and tried to continue on. Plaintiff took hold of the
rolling shield and stopped it from moving forward. In response, Jimoh walked around the
shield to plaintiff’s side of the rolling shield (during which time plaintiff continued to hold
and maintain control of the rolling shield) and kicked and stomped on plaintiff’s hand. Even
then, plaintiff did not release control of the security device, as he states another officer
grabbed the shield and violently yanked it until plaintiff’s hand was cut and plaintiff released
the shield.
As shown by plaintiff’s own allegations, it was not defendant Jimoh who pulled the
shield away from plaintiff. To the contrary, an unidentified second officer yanked the shield
away from plaintiff and plaintiff’s hand was injured when plaintiff refused to let go of the
shield. Plaintiff grabbed and held on to the rolling shield after, or as, it passed over his arm;
he makes no allegations that Jimoh’s actions caused him any physical injury. Moreover,
plaintiff admits that he took control of the security device and did not let go even after Jimoh

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kicked and stomped on his hand. That plaintiff’s only injury was his cut palm is supported
by the prison’s medical record regarding the incident. (Docket Entry No. 61-1, p. 41.)
Plaintiff establishes neither physical injury nor use of excessive force attributable to
defendant Jimoh. Jimoh is entitled to summary judgment dismissal of plaintiff’s Eighth
Amendment claim against him.
Excessive Force
In support of his motion for summary judgment, Jimoh submits a copy of the prison’s
Use of Force Report regarding the incident. In the Report, Jimoh acknowledges that he was
the only officer present during the incident, and that he pulled the rolling shield away when
plaintiff continued to hold on to it. Even though plaintiff’s own summary judgment evidence
controverts Jimoh’s admission, the Court will consider whether Jimoh’s actions as set forth
in the Report violated plaintiff’s Eighth Amendment rights.
When prison officers are accused of using excessive physical force in a manner which
violates the Eighth Amendment, the core judicial inquiry is whether force was applied in a
good faith effort to maintain or restore discipline, or maliciously and sadistically for the very
purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6 (1992); McCoy v. Alamu, 950
F.3d 226, 230 (5th Cir. 2020). The Supreme Court has recognized several relevant factors
in determining whether unnecessary and wanton infliction of pain was used in violation of
a prisoner’s rights, including: (a) the extent of the injury suffered; (b) the need for the
application of force; (c) the relationship between the need and the amount of force used; (d)
the threat reasonably perceived by the responsible officials; and (e) any efforts made to
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temper the severity of a forceful response. Id., at 7. In all respects, the amount of force that
is constitutionally permissible must be judged by the context in which that force is deployed,
Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996), and the determination is based on the nature
of the force more than on the extent of the injury. Bourne v. Gunnels, 921 F.3d 484 (5th Cir.
2019).
To raise a factual dispute as to excessive force, a plaintiff must point to evidence
showing: (1) an injury; (2) which resulted directly and only from a use of force that was
clearly excessive; and (3) the excessiveness of which was clearly unreasonable. See Poole
v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012). The inquiry is “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 398 (1989). The use of force must be evaluated “from the perspective
of a reasonable officer . . ., rather than with the 20/20 vision of hindsight.” Poole, 691 F.3d
at 627 (quoting Graham, 490 U.S. at 397).
In support of summary judgment, defendant submits the affidavit of Ferguson Unit
Assistant Warden James Blake, who testifies as follows:
My name is James Blake. I am over the age of 18 years, competent to make
this affidavit and have personal knowledge of the facts herein stated. I am
employed by the Texas Department of Criminal Justice (TDCJ) as Assistant
Warden at the Ferguson Unit in Midway, Texas. As part of my responsibilities
I serve as the warden responsible for Administrative Segregation at the
Ferguson Unit. I have a high level of training, experience, and daily
familiarity with Administrative Segregation at the Ferguson Unit, to include
its policies, procedures, logistics, personnel, offenders, and facilities. I also
have a high level of training, experience, and daily familiarity with uses of
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force in a correctional context, to include professional assessment of the
propriety thereof.
I am making this affidavit in connection with Civil Action No. 4:17-CV-3109;
Kyle Dillon v. Isiaka Jimoh, et al.; in the United States District Court for the
Southern District of Texas, Houston Division. To prepare this affidavit, I have
reviewed Major Use of Force Report No. M-05437-07-17, TDCJ Grievance
No. 2017181990, and Plaintiff Kyle Dillon’s Original Complaint.
In the past four years I have not testified as an expert at trial or by deposition.
Except for my usual salary, I am not receiving any pay for review of records
or preparation of this report. I had no personal involvement in the events
giving rise to this lawsuit, nor am I personally familiar with the parties.
I understand that Kyle Dillon, a TDCJ offender, claims that Isiaka Jimoh, a
former TDCJ correctional officer, violated Dillon’s Eighth Amendment rights
while Dillon was incarcerated at the Ferguson Unit. Specifically, Dillon
claims that Jimoh committed an “assault” against Dillon using a “rolling shield
and feet” on July 27, 2017. Dillon claims he presented no threat at the time of
the incident. Dillon claims that he suffered a large “gash” requiring hospital
treatment. According to Dillon’s grievance statement, this injury was incurred
on his left hand.
According to the relevant Use of Force Report, Kyle Dillon was confined to
Ferguson Unit, O Block, 2 Row, 6 Cell on July 27, 2017. This housing is
within an area of the prison known as Administrative Segregation. Offenders
housed in Administrative Segregation are confined to solitary cells for
approximately 23 hours per day. Administrative Segregation offenders are not
permitted to independently leave or remove anything, to include parts of their
body, from their cells at any time. Any offender removal from an
Administrative Segregation cell, whether full or partial, must be preceded at
minimum by a full strip search, application of hand restraints, and an escort by
correctional officers.
Any situation in which an Administrative Segregation offender succeeds in
removing himself, any part of his body, or an object from his cell without
authorization or appropriate predicate safeguards is inherently a threat to the
safety and security of the prison. Administrative Segregation offenders have
been independently adjudicated to be an especially dangerous subset of the
greater population of convicted felons housed within TDCJ prison units.
Diligent care and caution must be taken at all times to ensure that these
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offenders are not given the opportunity to harm correctional staff, other
offenders, or themselves. Independent and unauthorized removal of an
offender, any part of his body, or any object from an Administrative
Segregation cell inherently presents such opportunities and must be prevented
or eliminated.
Ferguson Unit, O Block, 2 Row features a series of side-by-side
Administrative Segregation cells, one of which is 6 Cell. The cells are fronted
by a narrow catwalk. Due to the confined dimensions of the catwalk, any
persons traversing on 2 Row are forced to pass very close to the cells.
Ferguson Unit officials long ago learned that this arrangement presents a
particularly dangerous opportunity for attacks launched from cells against
passersby. History has taught that offenders being escorted along the rows in
Administrative Segregation are especially at risk for attack by enemy offenders
inside the cells. Among other approaches, the Ferguson Unit utilizes large,
rolling plexiglass shields, installed on overhead tracks, primarily to mitigate
the danger of attack against offenders being escorted along the rows.
Correctional personnel may push or pull these shields as they walk in order to
provide a continuous physical barrier between the cells and those walking
along the rows. The shields hang vertically, several inches outside of the cells
on O Block. It is impossible for an offender to come into physical contact with
a rolling shield unless he, or some part of his body, is outside of his cell. As
previously stated, Administrative Segregation offenders are not permitted to
remove any part of their body from the cells without authorization and
predicate safeguards. Regardless of the location, classification, or
authorization of a TDCJ offender, no offender is permitted to grab, push, pull,
or otherwise purposely make contact with a rolling shield at any time. Any
such unauthorized offender contact would be considered a threat to the safety
and security of the prison, as the shield could be used, among other things, as
a defensive barrier for launching attacks, or as a weapon itself.
Based upon the complaint in this lawsuit, the relevant Use of Force Report,
and Kyle Dillon’s TDCJ grievance, the following facts appear to be
undisputed. On July 27, 2017, at just after 11:00pm, Officer Isiaka Jimoh was
present on the Ferguson Unit, O Block 2 Row, and was operating a rolling
shield. Offender Kyle Dillon, who was confined inside 6 Cell at the time,
made contact with the rolling shield, OUTSIDE his cell, with his left hand.
Officer Jimoh pulled the shield away from Offender Dillon, injuring Dillon’s
hand.
Based upon my education, training, and experience as a TDCJ Administrative
Segregation Warden, it is my opinion that Officer Jimoh did not exercise
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excessive or unnecessary force against Offender Dillon. Offender Dillon could
not have made contact with the rolling shield without illegally extending his
hand outside his cell while Officer Jimoh was passing by. Once Offender
Dillon made contact with the shield in any way, he created a situation that
presented a potential danger to the safety and security of the prison in general,
and Officer Jimoh in particular. It should not be overlooked that Offender
Dillon also created a danger to himself that was realized. The dangerous
situation created by Offender Dillon was necessarily and properly eliminated
by what appears to have been the most expeditious and least amount of force
necessary – immediately removing the shield from Dillon’s grasp. The
alternative – leaving the shield within Offender Dillon’s control for any
amount of time – would at least allow the dangerousness of the situation to
perpetuate, if not increase.
It appears from the relevant records that Officer Jimoh was disciplined for not
properly following TDCJ procedures in reporting the incident on July 27,
2017. I offer no opinion on Officer Jimoh’s performance following the use of
force, except that a failure to report a use of force has no bearing on whether
the use of force itself was proper. Based upon my education, training, and
experience as an Administrative Segregation Warden, and my review of the
relevant records, it is my opinion that Officer Jimoh used proper and necessary
force against Offender Dillon on July 27, 2017.
(Docket Entry No. 61-3, original and additional emphasis.)
Prison officials investigated the incident and concluded in the Use of Force Report
that Jimoh’s use of force in the incident had been justified. (Docket Entry No. 61-1, p. 5.)
Jimoh was reprimanded for failing to report a “Non-Excessive and Necessary Use of Force.”
Id., p. 14. The following was reported as to “Fact Finding Inquiry MA-05437-07-17”:
On 7/27/17 a major use of force occurred involving Offender Dillon, Kyle
#1268995. On 7/27/17 at approx. 2303 hours, Officer Jimoh, Isiaka COIV was
conducting cell searches on O block two row. As Officer Jimoh was walking
back up two row run, Offender Dillon in O 2-6 cell put his hand underneath
the cell door and grabbed a hold of the rolling shield. At that time Officer
Jimoh [was] unaware of Offender Dillon’s intentions and pulled the shield
away from Offender Dillon’s grasp. Officer Jimoh continued with his normal
duties.
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*

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Lt. LaCombe states when he approached O 2-6 cell, Offender Dillon showed
him a laceration to his hand and stated Officer Jimoh hit him with his shield.
Lt. LaCombe states he questioned Officer Jimoh and he stated Offender Dillon
reached his hand out of his cell and grabbed onto the shield. Officer Jimoh
stated to Lt. LaCombe he had to pull the shield away from the offender. Lt.
LaCombe questioned Officer Jimoh why a supervisor was not notified and he
stated he was not aware it was a use of force.
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Offender Dillon received a laceration to his left hand that required 8 sutures
to treat. The injury to Offender Dillon’s hand was consistent with grabbing the
rolling shield and it being pulled from his hand. The rolling shield has an
aluminum frame that has sharp edges.
Id. Defendant Jimoh provided the following statement to the use of force investigators:
Approximately 2303 pm on O block after doing a cell search on 2-23, 24, and
25 cells, I, Officer Jimoh was walking towards 2 row run [illegible] door while
Offender Dillon Kyle [number] housed in O 2-6 cell suddenly stretch[ed] his
hands out under his cell door and grabbed the shield in an attempt to assault
me Officer Jimoh. I felt my life was in danger and all I could do to protect
myself was to hold on to the shield and pulled [sic] away from his cell and I
resumed my normal duties.
Id., p. 21. Although plaintiff was provided the opportunity to make a written statement for
inclusion in the Use of Force Report, he declined. Id., p. 22. Three inmate witnesses were

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also asked to provide written statements, but refused. Id., p. 38.2 In his prison administrative
grievance, plaintiff complained that he was assaulted without provocation by an unidentified
African officer who assaulted him with the rolling shield and by kicking his left hand.
(Docket Entry No. 61-2, p. 2.) Plaintiff made no mention in his grievance of having stuck
his hand out from underneath his door and taking control of the rolling shield or that his hand
was cut when he held on to the shield and it was pulled away.
The threat created by plaintiff’s actions were reasonably perceived by Jimoh and he
used only the amount of force necessary to gain control of the situation. See Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The probative summary judgment evidence shows that
Jimoh’s use of force was the direct result of plaintiff’s own threatening behavior in taking
control of the rolling shield. The use of force was applied in an effort to restore and maintain
discipline and security, and was reasonable under the circumstances. In short, the use of
force was necessary because plaintiff grabbed hold and refused to let go of the security

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The Court notes that another inmate directly filed a declaration in this case, unrelated to the
summary judgment proceedings. (Docket Entry No. 52.) In his letter to plaintiff, the inmate
enclosed his affidavit and requested a reciprocal affidavit from plaintiff for the inmate’s use in his
own lawsuit. The inmate stated that he “witnessed” the incident from another part of the prison
block by using a mirror, even though “the lighting was poor.” The inmate stated that he saw
plaintiff stick his arm and hand out from under his door and that either Jimoh or another correctional
officer pushed the security shield towards plaintiff’s arm. Plaintiff caught the shield before it could
hit his arm. According to the inmate, one of the two officers then “ran up” to plaintiff’s hand and
stomped and kicked it, at which point plaintiff pulled his hand and arm back into his cell and the
officers moved on. The inmate made no mention of either officer pulling or yanking the rolling
shield away from plaintiff’s grasp and cutting his hand. The inmate’s version of the incident
contradicts plaintiff’s own allegations and does not identify what actions were taken by Jimoh. Even
assuming plaintiff had relied on the declaration as summary judgment evidence, the declaration
provides no basis for denying Jimoh’s motion for summary judgment.
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shield. Even after defendant Jimoh kicked plaintiff’s hand or stomped on it, plaintiff refused
to let go. Indeed, even after Jimoh tried pulling the shield away from plaintiff, plaintiff held
on until his hand was injured.
The probative summary judgment evidence submitted by defendant shows that the use
of force was in response to plaintiff’s threatening actions. Jimoh was faced with a
recalcitrant inmate who resisted Jimoh’s attempts to remove the security shield from his
grasp. See, e.g., Williams v. Valenti, 432 F. App’x 298, 2011 WL 2650883 (5th Cir. 2011)
(finding use of force not malicious or sadistic where inmate was belligerent and pulled away
when officer grasped his arm). Plaintiff’s actions constituted, and were reasonably seen as,
a threat to Jimoh and prison security. Jimoh attempted to alleviate the threat first by kicking
and stomping on plaintiff’s hand; when plaintiff failed to let go of the security device, Jimoh
pulled the shield away from him. Because plaintiff refused to let go of the shield, his hand
was injured, and only at that point did plaintiff relinquish his hold on the shield. The threat
and security breach ended at that point, and Jimoh continued his duties without further use
of force against plaintiff. The parties do not allege that Jimoh had been aware that plaintiff’s
hand was injured when he pulled the security device away.
Plaintiff’s disagreement with Jimoh’s allegations of being assaulted or threatened by
plaintiff’s actions do not constitute probative summary judgment evidence for purposes of
defeating summary judgment. Nor does plaintiff raise a material issue of fact precluding
summary judgment by arguing that, had his actions constituted an assault or threat against
Jimoh, disciplinary action would have been taken against him.
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Plaintiff has not established a genuine issue of material fact as to whether Jimoh’s use
of force violated his Eighth Amendment rights in context of the situation, and defendant
Jimoh is entitled to summary judgment dismissal of the claim.
Conclusion
Defendant Isiaka Jimoh’s motion for summary judgment (Docket Entry No. 61) is
GRANTED, and this lawsuit is DISMISSED WITH PREJUDICE. Any and all pending
motions are DENIED AS MOOT.
Signed at Houston, Texas on October 23, 2020.

Gray H. Miller
Senior United States District Judge

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