Wilturner v. Richardson et al

Filing 12

MEMORANDUM OPINION AND ORDER - Defts 8 MOTION to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED (a) as to Wilturner's claims for injunctive relief, (b) to the extent that Wilturner seeks mone tary damages from the defendants in their official capacity under § 1983, and (c) as to Wilturner's ADA claims against defendants in their individual capacity; and is DENIED as to Wilturner's (a) claims against Warden Richardson and Assistant Warden Hutto based on their roles as supervisory (b) ADA claims against defendants in their official capacity, (c) claims for compensatory damages as barred by § 1997e(e), and (d) Eighth Amendment claims against defendants in their individual capacity. The defendants shall file any motion for summary judgment on the remaining claims within 90 days from the date of this Memorandum Opinion and Order. ( Dispositive Motion due by 2/18/2022. )(Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 1 of 22
United States District Court
Southern District of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JONATHAN WILTURNER,
TDCJ #01855260,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
WARDEN JEFFERY RICHARDSON,
et al.,
Defendants.

ENTERED
November 18, 2021
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-21-0413

MEMORANDUM OPINION AND ORDER

State inmate Jonathan Wilturner has filed a Prisoner's Civil
Rights Complaint under 42 U.S.C.

§

1983 ("Complaint") (Docket Entry

No. 1), concerning the conditions of his confinement in the Texas
Department of Criminal Justice ("TDCJ").

He has also filed

Plaintiff's More Definite Statement ( \\ Plaintiff's MDS") (Docket
Entry No. 5), which provides additional details about his claims.
Warden Jeffery Richardson,

Assistant Warden Tracy Hutto,

and

Officer Daniel Goodall have filed Defendants' Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
("Motion to Dismiss") (Docket Entry No.

8) and Wilturner has

responded with Plaintiff's Reply to Defendants' Motion to Dismiss
("Plaintiff's Reply") (Docket Entry No. 11). After considering all
of the pleadings and the applicable law,

Motion to Dismiss will

be granted in part and denied in part for the reasons explained
below.

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 2 of 22

I.

Background

Wilturner is incarcerated by TDCJ at the Estelle Unit in
Huntsville. 1

In a Complaint that is dated February 2,

2021,

Wilturner filed this civil rights lawsuit under 42 U.S.C. § 1983
against the following prison officials who are employed by TDCJ at
the Estelle

Unit

facility:

(1)

Warden

Jeffery

Richardson;

(2) Assistant Warden Tracy Hutto; and (3) Correctional Officer
Daniel Goodall. 2

Each defendant is sued

his or her individual

icial capacity. 3

and

Wilturner alleges that he is disabled as the result of a back
injury that he sustained when he fell from the top bunk and landed
on the concrete floor
2019. 4

his cell at the Estelle Unit on July 26,

Due to this injury Wilturner suffers constant pain and

numbness in his legs on a daily basis. 5

He has difficulty standing

up and he has reportedly fallen "numerous times" because of the
numbness in his legs. 6

He wears a back brace and a walker for

Complaint, Docket Entry No. 1, p. 3.
For purposes of
identi cation all page numbers refer to the pagination imprinted
on each docket entry by the court's electronic case filing system,
ECF.
1

at 3, 7.
3

at 7.

Plaintiff's MDS, Docket Entry No. 5, p. 3, at Question 4(b).
The injury that Wilturner sustained is the subject of a separate
See Wilturner v.
lawsuit that is pending in this dis
ct.
Dickerson, Case No. 4:20-cv-1464 (S.D. Tex).
4

5

Plaintiff's MDS, Docket Entry No. 5, p. 3, at Question 4{c).
-2-

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 3 of 22

support to prevent him from falling. 7

Because he is at risk for

falling he also has a "disability shower pass" from the medical
department so that he can "sit down" while showering. 8
On August 7, 202 O, Wilturner received notic.e that he tested
positive for COVID-19, and he was immediately placed in quarantine
in the Cl cellblock of the Estelle Unit. 9

Wilturner describes the

Cl cellblock as filthy and states that the inmates were not given
cleaning supplies.10

Wilturner states that he was housed with a

cellmate and many other inmates who had tested positive for
COVID-19, many of whom were allowed to "pass[] out food [while]
coughing, sneezing, and .

without san[i]tizing." 11

Wilturner

alleges that the Cl cellblock had only a "stand-up shower," which
failed to accommodate his disability. 12

Wilturner remained in Cl

cellblock for seven days until August 14, 2020, when he was moved
to the Dl cellblock.13

Wilturner alleges that the Dl cellblock,

where he remained for 19 days, also had only a stand-up shower. 14
7

Id. 4(d).

8

Complaint, Docket Entry No. 1, p. 4

9

Plaintiff's MDS, Docket Entry No. 5, p. 2, at Question 3(a).

§

V.

0 Complaint, Docket Entry No.
1, p. 7 � 9; Plaintiff's MDS,
Docket Entry No. 5, p. 2 at Question 3(b)
1

ncomplaint, Docket Entry No. 1, p. 7 � 10.

Id. at 4 § V and 8 �1 12., 15; Plaintiff's MDS, Docket Entry
No. 5, p. 2, at Question 3(b).
12

3 (e)

13

Plaintiff's MDS, Docket Entry No. 5, pp. 2-3, at Question

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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 4 of 22

Wilturner contends that he was unable to shower or clean
himself while quarantined, which exacerbated his suffering due to
symptoms of COVID-19 .15 Those symptoms included continual coughing,
shortness of breath, muscle pain, and sore throat causing "extreme
pain, and suffering." 16

Wilturner alleges that he contacted Warden

Richardson in writing to attempt "Informal Resolution" regarding
his lack of access to a safe shower on August 11, 2020, but never
received a response.17

Wilturner contends that he notified Warden

Richardson again in a formal grievance that he filed on August 17,
2020,

expressing

concerns about his safety and requesting an

accommodation for his disability. 18

Warden Richardson denied the

grievance on August 20, 2020, explaining that there was "a shortage
of staffing." 19
On September 8, 2020, Wilturner complained to Officer Goodall,
explaining that he had a "disability shower pass" from the medical
department and needed to sit down in the shower. 20

Officer Goodall

responded that same day by bringing Wilturner a chair to sit on
while in the shower. 21

Wilturner explained that the chair was

15

Complaint, Docket Entry No. 1, p. 8 � 15.

16

Id. � 16.

19

Plaintiff's MDS, Docket Entry No. 5, p. 5, at Question 8.

20

complaint, Docket Entry No. 1, p. 9 � 22.

Id. � 23;
Question 10.
21

Plaintiff's MDS,
-4-

Docket Entry No. 5, p. 5,

at

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 5 of 22

inadequate because it was not bolted to the floor, posing a risk
that he could fall due to the numbness in his legs. 22

Officer

Goodall reportedly told Wilturner that if he did not use the chair
he was provided with he would not be able to shower. 23

While using

the shower chair provided by Officer Goodall, Wilturner fell when
he was unable to brace himself on the shower chair, which flipped
over, causing Wilturner to "land[]

on his already injured back

[and] injur[e] his right hand, left shoulder and neck." 24 Wilturner
chose not to shower again for the remainder of the time he spent in
quarantine because of the failure to accommodate his disability
with access to a safe shower chair.25
After the incident involving Officer Goodall, Wilturner filed
another formal grievance dated September 9,

2020. 26

Wilturner

complained that he had been denied a shower between August 12,
2020, and September 8, 2020, with "deliberate indifference" to his

safety as a disabled person. 27 Warden Richardson responded that his
office investigated the claim and noted that Officer Goodall had
provided Wilturner with a chair, which Wilturner sat in and then
22

23

Plaintiff's MDS, Docket Entry No. 5, pp. 5-6, at Question 11.
Complaint, Docket Entry No. 1, p. 9 � 25.

24

Id. at 10 �� 27-28.

25

Id. � 30; Plaintiff;s MDS, Docket Entry No. 5, at Question 11.

Step 1 Offender Grievance Form (No. 2021003510) ("Step 1
Grievance"), attached to Complaint, Docket Entry No. 1, pp. 14-15
(incorrectly numbered pp. 7-8).
26

27

Id. at 14 ( incorrectly numbered p. 7).
-5-

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 6 of 22

turned over. 28 Finding no evidence that Wilturner had fallen in the
shower due to the chair that was placed in there by Officer
Goodall,

Warden Richardson stated that no further action was

warranted. 29
On September 12, 2020, Wilturner contacted Assistant Warden
Hutto while she was walking down the hallway and requested access
to a shower that accommodated his disability. 30

Hutto initially

said that she would "check into" Wilturner's concerns, but she
denied his request for an accessible shower

the same day. 31

Wilturner claims that he "personally notified" Warden Richardson
about his concerns on September 14, 2020, but Richardson denied
Wilturner's request to accommodate his disability and ignored his
suffering. 32
Wilturner alleges that he was denied humane conditions of
confinement because he was unable to shower for a total of 26 days,
which caused him to develop a "wide-spread[] rash' on his chest
1

that caused discomfort requiring medical care. 33 Wilturner alleges
that the defendants acted with deliberate indifference to his
28

at 15 (incorrectly numbered p. 8).

°Complaint, Docket Entry No. 1, p. 9
Docket Entry No. 5, p. 5, at Question 9.
3

32

1

20; Plaintiff's MDS,

Complaint, Docket Entry No. 1, pp. 8-9 119.

Complaint, Docket Entry No. 1, p. 9
Docket Entry No. 5, p. 4 at Question 6.
33

-6-

1

26; Plaintiff's MDS,

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 7 of 22

health and safety in violation of the Eighth Amendment, and he also
appears

to allege that

defendants

failed

to

accommodate his

disability by not providing him with access· to a shower in
violation of the Americans with Disabilities Act (the "ADA"). 34
.

.

He

seeks injunctive relief and compensatory and punitive damages.35
The defendants move to dismiss the Complaint under Rules
12 (b) (1) and 12 (b) (6) of the Federal Rules of Civil Procedure,
arguing that Wilturner's claim for injunctive relief is moot and
that he has otherwise failed to state a claim because they are
entitled to both official and qualified immunity.36 These arguments
are examined below under the applicable standard of review.
II.
A.

Standard of Review

Motions to Dismiss Under Rule 12(b} (1)

The defendants have moved to dismiss the Complaint under Rule
12 (b) (1) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction.
jurisdiction,

having

'only

Federal courts are "courts of limited
the

authority

endowed

Constitution and that conferred by Congress. '"
State Farm Fire and Casualty Co.,
2010).

603 F.3d 290,

by

the

Halmekangas v.
292 (5th Cir.

"'A case is properly dismissed for lack of subject matter

jurisdiction when the court lacks the statutory or constitutional
34

Complaint, Docket Entry No. 1, p. 11 � 33.
at 11-12

36

�1 37-39.

Motion to Dismiss, Docket Entry No. 8, pp. 5-14.
-7-

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 8 of 22

power to adjudicate the case.'"

Krim v. pc'Order.com, Inc., 402

F.3d 489, 494 (5th Cir. 2005).
B.

Motions to Dismiss Under Rule 12(b) (6)

defendants have moved to dismiss the Complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure for

To withstand a

state a claim upon which relief may be granted.
motion to dismiss under Rule 12(b) (6),

lure to

factual allegations in

the complaint "must be enough to raise a right to relief above the
speculative level[.]"

Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007) (citation omitted). If the complaint has not set
forth "enough facts to state a claim to relief that is plausible on
its face," it must be dismissed.

Id. at 1974.

In reviewing a motion under Rule 12(b)(6),

a court must

"'accept[) all well-pleaded facts as true and view[] those
the light most favorable to the plaintiff. '"

ts in

Bustos v. Martini

Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010) (citation omitted).
However, a reviewing court need not accept as true any "conclusory
allegations, unwarranted factual inferences, or legal conclusions."
Ferrer v. Chevron Corp.,

484

F.3d 776,

780

(citation and internal quotation marks omitted).

(5th Cir. 2007)
In other words,

'' [t] hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Ashcroft
v. Igbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 127 S. Ct.
at 1965).
-8-

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 9 of 22

Wilturner represents himself in this action.

A pro se

litigant's pleadings are held to a less stringent standard than
those drafted by lawyers.

See Haines v. Kerner, 92 S. Ct. 594, 596

(1972) (per curiam); see also Erickson v. Pardus, 127 S. Ct. 2197,
2200

(2007)

("A document filed pro

se

is

'to be liberally

construed[. ] ' ") (quoting Estelle v. Gamble, 97 S. Ct. 285
(1976)).

I

292

Nevertheless, a plaintiff's factual allegations "must be

enough to raise a right to relief above the speculative level[.]"
Twombly, 127 S. Ct. at 1965.

If the plaintiff's complaint has not

set forth "enough facts to state a claim to relief that is
plausible on its face," it must be dismissed.
III.
A.

Id. at 1974.

Discussion

The Claims for Injunctive Relief are Moot

The defendants note that Wilturner is no longer housed in
quarantine under conditions of confinement that do not afford
access to a shower that accommodates his disability. 37

Wilturner

does not dispute that he is no longer subject to conditions that
deprive him of a safe, accessible shower.

Because he is no longer

subject to the conditions of confinement that form the basis for
his Complaint, Wilturner's claim for injunctive relief

moot.

See Herman v. Holiday, 238 F. 3d 660, 665 (5th Cir. 2001) (noting
that plaintiff's trans

to a different prison facility rendered

his claims for declaratory and injunctive relief moot); see also
37

Motion to Dismiss, Docket Entry No. 8, p. 7, n.6.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 10 of 22

Flaming v. Alvin Community College, 777 F. App'x 771, 772 (5th Cir.
2019) (per curiam) (holding that an inmate's ADA claim was properly
dismissed as moot "where the cause of action is no longer live")
(quoting Henschen v. City of Houston, 959 F.2d 584, 587 (5th Cir.
1992)).

Therefore, the defendants' motion to dismiss Wilturner's

claims for injunctive relief will be granted.
B.

Official Immunity

The defendants argue that Wilturner's claims for monetary
damages against them in their official capacity as state employees
are barred by the Eleventh Amendment.38

Unless expressly waived,

the Eleventh Amendment bars an action in federal court by a citizen
of a state against his or her own state, including a state agency.
See Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2309
(1989).

The Eleventh Amendment also bars a federal action for

monetary damages against state officials when the state itself is
the real party in interest.

See Pennhurst State School

v. Halderman, 104 S. Ct. 900, 908-09 (1984).
state

&

Hospital

A suit against a

ficial in his or her official capacity is considered a suit

against the state itself.

Will, 109 S. Ct. at 2312 ("[A] suit

against a state official in his or her official capacity
suit against the official but rather

not a

a suit against the

official's office. As such, it is no different from a suit against
the State itself.") (internal citations omitted).
38

Motion to Dismiss, Docket Entry No. 8, pp. 5-7.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 11 of 22

Texas has not waived its immunity from suit under the Eleventh
Amendment,

and Congress did not abrogate that immunity when it

enacted 42 U.S.C. § 1983.

See NiGen Biotech, L.L.C. v. Paxton, 804

F.3d 389, 394 (5th Cir. 2015) (citing Quern v. Jordan, 99 S. Ct.
1139, 1145 (1979)). · As a result, the defendants are entitled to
immunity from any claim under § 1983 for monetary damages against
them in their official capacity. 39

See Loya v. Texas Department of

Corrections,

(5th

878

F.2d

860,

861

Cir.

1989)

(per

curiam)

("[TDCJ's] entitlement to immunity under the [E] leventh [A] mendment
is clearly established in this circuit."); Oliver v. Scott, 276
F.3d 736,

742

recovering

§

(5th Cir.
1983

money

official capacity.").

2001)

("[T]he Eleventh Amendment bars

damages

from

TDCJ

officers

in

their

To the extent that Wilturner seeks monetary

damages from the defendants in their

official

capacity under

§ 1983, the motion to dismiss will be granted. 40
C.

Supervisory Liability
Warden

Richardson

and

Assistant

Warden

Hutto

argue

that

Wilturner's claims against them must be dismissed because he has
There is a narrow exception that applies to claims for
prospective injunctive relief. See Ex parte Young, 28 S. Ct. 441
(1908). This exception does not apply because, as noted above,
Wilturner's claim for injunctive relief is moot.
39

The Supreme Court has expressly declined to decide whether
states are immune from suits for damages arising from conditions
that violate the ADA. See United States v. Georgia, 126 S. Ct. 877
(2006). Because the defendants do not separately brief the issue
of official immunity from Wilturner' s claims under the ADA,
dismissal of his official-capacity claims is limited to Wilturner's
contention that the defendants violated his rights under the Eighth
Amendment.
40

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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 12 of 22

sued them solely because they are supervisory officials.41

It is

well established that a supervisory official may not be held liable
for a civil rights violation under a theory of respondeat superior
or vicarious liability. Monell v. Department of Social Services of
City of New York, 98 S. Ct. 2018, 2036 (1978).

Because vicarious

liability is inapplicable in an action under 42 U.S.C. § 1983, "a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution."

Igbal, 129 S. Ct. at 1948.

To demonstrate super­

visory liability under§ 1983, a plaintiff must allege either that
they participated in acts that caused a constitutional deprivation
or that they implemented unconstitutional policies causally related
to his injuries.

See Alderson v. Concordia Parish Correctional

Facility, 848 F.3d 415, 421 (5th Cir. 2017) (citing Mouille v. City
of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992)).
Wilturner states that he personally advised Warden Richardson
about his lack of

access

to a shower

that

accommodated his

disability by submitting a written request for Informal Resolution
on August 11, 2020, and by filing a formal grievance on August 17,
2020, which Richardson denied.42

Wilturner alleges that he also

personally notified Assistant Warden Hutto on September 12, 2020,
that he was being denied a shower that accommodated his disability,
41

Motion to Dismiss, Docket Entry No. 8, pp. 8-9.

42

Complaint, Docket Entry No. 1, p. 8 11 17-18.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 13 of 22

but that sh� also denied his request for an accessible shower. 43
Taking these
at

the

legations as true, which the court is required to do

pleading

stage,

Wilturner

alleges

that

both

Warden

Richardson and Assistant Warden Hutto were personally aware that he
was disabled and that he was being denied access to a shower but
failed to respond or take steps to avert a risk to Wilturner's
health and safety.

For reasons discussed more fully below,

Wilturner's allegations are sufficient to state a plausible claim
that Richardson and Hutto were personally involved in a violation
of his rights under the ADA and the Eighth Amendment.
the defendants'

motion to dismiss the

Accordingly,

claims against Warden

Richardson and Assistant Warden Hutto based on their roles as
supervisory officials will be denied.
D.

ADA Claims

Wilturrier's primary claim is that the defendants violated his
rights by denying him access to a shower that accommodated his
disability. 44

Although Wilturner does not expressly reference the

ADA in his pleadings, his claim is liberally construed to arise
under Title II of the ADA,

which provides as follows:

" [N] o

qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
Id. at 9
Question 9.
43

44

1

20; Plaintiff's MDS, Docket Entry No. 5, p. 5, at

Complaint, Docket Entry No. 1, pp. 4, 9, 11.
1 3-

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 14 of 22

benefits of the services,

programs,

or activities of a public

entity, or be subjected to discrimination by any such entity."

u.s.c.

42

§ 12132.
tle II

\\

entit

[of

the ADA]

imposes an obligation on public

s to make reasonable accommodations or modifications for

disabled persons, including prisoners."
F. App'x 375, 382 (5th

Garrett v. Thaler, 560

. 2014) (quoting Tennessee v. Lane, 124

S. Ct. J,978, 1993 (2004) and Pennsylvania Dep't of Corrections v.
Yeskey, 118 S. Ct. 1952, 1956 (1998)); see also Cadena v. El Paso
County,

946

correctly

F.3d

note

liability.45

717,

that

723
the

(5th
ADA

Cir.

does

2020).

not

The defendants

authorize

individual

See Nottingham v. Richardson, 499 F. App'x 368, 376

n.6 (5th Cir. 2012) (citations omitted). Therefore, the defendants'
motion to dismiss Wilturner's ADA claims against them in their
individual capacity will be granted.
The Fifth Circuit has recently held that allegations such as
those made by Wilturner,

concerning the denial of access to a

shower that reasonably accommodates a prisoner's disability, are
sufficient to plausibly allege a failure to accommodate that is
actionable under the ADA against a defendant in his or her official
capacity.

See Buchanan v. Harris, No. 20 20408, 2021 WL 4514694,

at *2-3 (5th Cir. Oct. 1, 2021) (per curiam) (unpublished).

As a

result, the defendants' motion to dismiss Wilturner's ADA claims
against them in their official capacity must be denied.
45

Motion to Dismiss, Docket Entry No. 8, p. 10.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 15 of 22

E.

Eighth Amendment Claims

Wilturner also alleges that depriving him of access to a
shower violated the Eighth Amendment because it was done with
deliberate indifference to his health and safety.46

The defendants

argue that Wilturner has no Eighth Amendment claim because he fails
to allege that he suffered a physical injury that is more than de
minimis for

purposes

of

recovering

Litigation Reform Act ("PLRA"),

42

damages
U.S.C.

under
§

the

1997e(e). 47

Prison
The

defendants further allege that Wil turner fails to allege facts
showing that they acted with deliberate indifference in violation
of the Eighth Amendment and, as a result, they are entitled to
qualified immunity. 48
1.

Physical Injury Requirement

The PLRA,

codified as amended at 42

U.S.C.

§

1997e(e),

precludes an action for compensatory damages · stemming from a
prisoner's conditions of confinement "without a prior showing of
physical injury [.]"
'physical injury'

The Fifth Circuit has determined that "the
required by

§

1997e(e)

'must

de minimus [sic], but need not be significant."

be more than

Harper v. Showers�

174 F.3d 716, 719 (5th Cir. 1999) (quoting Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997)) (alteration in original).
46

Complaint, Docket Entry No. 1, pp. 4, 9, 11.

47

Motion to Dismiss, Docket Entry No. 8, pp. 7-8.

48

Id. at 9-10, 13-14.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 16 of 22

Wilturner alleges that as a result of the defendants' refusal
to provide him with access to a shower that accommodated his
disability, he slipped when the shower chair provided by Officer
Goodall flipped over, causing him to injure his right hand, left
shoulder, and neck. 49 He alleges that the conditions of confinement
exacerbated his symptoms of COVID-1950 and caused him to develop a
rash that required medical treatment. 5 1 Because this case

still

at the pleadings stage, ·there are no medical records showing the
extent of these injuries.

Accepting Wilturner's allegations as

true and viewing them in the light most favorable to him as
required by the standard of review, the court cannot say that the
injuries described in the pleadings are insufficient for the
purpose of precluding compensatory damages under §

1997e(e).

Therefore, the defendants' motion to dismiss Wilturner's claims for
compensatory damages as barred by§ 1997e(e) will be denied.
2.

Qualified Immunity

Public officials acting within the scope of their authority
generally are shielded from civil liability by the doctrine of
49

Complaint, Docket Entry No. 1, p. 10

1 28.

at 8 11 13, 15; see also Plaint f's MDS, Docket Entry
No. 5, p. 5 at Question 7 (stating that he felt as though "death
was about to take over from the lack of [the ability] to shower"
and listing symptoms that included "repeated shaking and chills,
shortness of breath and difficulty breathing, head ache, cough, and
sore throat," which were made worse because he was unable to clean
himself).
51 Complaint,

Docket Entry No. 1, p. 9
Docket Entry No. 5, p. 4, at Question 6.
-16-

1 21; Plaintiff's MDS,

Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 17 of 22

qualified immunity.
2738 (1982).

See Harlow v. Fitzgerald, 102 S. Ct. 2727,

Qualified immunity protects "all but the plainly

incompetent or those who knowingly violate the law."
1096 (1986).

A plaintiff seeking to

overcome qualified immunity must show:

"(1) that the official

Briggs,

106 S. Ct. 1092,

Malley v.

violated a statutory or constitutional right,
right was

'clearly established' at the time of the challenged

conduct."
(citation

and (2) that the

131 S. Ct.

_A_shcr_o_f_t_v. _al- Kidd,
_ _ _
�
� � _ _ _ _
omitted).

If

the

defendant's actions violated

plaintiff
a

2074,

2080 (2011)
that

demonstrates

a

constitutional right that was

clearly established, the court then asks whether qualified immunity
is appropriate, nevertheless, "because the defendant's actions were
'objectively

reasonable'

in

light

of

'law

which

established at the time of the disputed action. '"

was

clearly
Brown v.

Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (quoting Collins v.
Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)); see also Cherry
Knoll, L.L.C. v. Jones, 922 F.3d 309, 318 (5th Cir. 2019).
Wilturner alleges that by depriving him of a safe, accessible
shower that accommodated his disability while in quarantine, the
defendants deprived him of humane conditions of confinement in
violation of the Eighth

Amendment,

which prohibits cruel and

unusual punishment, i.e. , the "unnecessary and wanton infliction of
pain."

Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991) (quoting

Estelle v. Gamble, 97 S. Ct. 285, 291 (1976)).

The Supreme Court

has recognized that prison conditions may be "restrictive and eyen
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 18 of 22

harsh" without violating the Eighth Amendment.

Rhodes v. Chapman,

101 S. Ct. 2392, 2399 (1981). Although the Constitution "'does not
mandate comfortable prisons,'
ones."

neither does it permit inhumane

Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994) (quoting

Rhodes, 101 S. Ct� at 2400)

Specifically, "prison officials must

ensure that inmates receive adequate food, clothing, shelter, and
medical care, and must take reasonable measures to guarantee the
safety of the inmates[.]"

Farmer, 114 S. Ct. at 1976 (internal

quotation marks omitted).
To demonstrate a violation of the Eighth Amendment where
conditions

of

confinement

are

concerned,

a

prisoner

must

demonstrate that his confinement resulted in a deprivation that was
"objectively, 'sufficiently serious,'" such that it resulted in the
denial of "'the minimal civilized measure of life's necessities.'"
Farmer, 114 S. Ct. at 1977 (quoting Rhodes, 101 S. Ct. 2399).

See,

g__,__g_,_, Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir. 1999) (finding
that conditions violated the Eighth Amendment where inmates were
herded into a small outdoor space, deprived of protection from
excessive

cold

and

wind,

disposing of their waste).

and

provided

no

sanitary

means

of

When analyzing an Eighth Amendment

claim courts must measure prison conditions under the "evolving
standards
society[.]"

of

decency

that

mark

the

progress

of

a

maturing

Gates v. Cook, 376 F.3d 323, 332-33 (5th Cir. 2004)

(citation and internal quotation marks omitted).
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 19 of 22

If a sufficiently serious deprivation is shown, a plaintiff
must then show that prison officials acted
indifference" to the ef
health and safety.

with

"deliberate

that this deprivation would have on his

Farmer,

114 S.

Ct.

"Deliberate

at 1977.

indifference is an extremely high standard to meet."

Domino v.

Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
" [A]

prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference."
114 S. Ct. at 1979.

Farmer,

A prison official acts with the requisite

deliberate indifference "only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it."

Id. at 1984.

Wilturner contends that the defendants knowingly deprived him
of the ability to clean himself for a prolonged period of time and
subjected him to conditions of confinement that were needlessly
inhumane. 52

Specifically, Wilturner alleges that the defendants

were aware that he was disabled and that he had a disability shower
pass from the medical department, but deliberately ignored his

52

Plaintiff's Reply, Docket Entry No. 11, pp. 2-3.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 20 of 22

request for access to a shower that accommodated his need to bathe
manner.53

in a

Although Officer Goodall provided Wilturner

with a chair in an attempt to accommodate his need to sit down in
the shower, the "makeshift handicap chair" was not bolted to the
floor or secured in any way and flipped over when Wilturner used it
to steady himself, caus

him to fall and injure himself. 54 Viewing

the allegations in the light most favorable to Wilturner, he claims
that he was unable to clean himself adequately while housed in
unsanitary conditions because the defendants denied him access to
a safe shower.
The Fifth Circuit has observed that '''the deprivation of basic
elements of hygiene'" is among those conditions of confinement that
are "so 'base, inhuman and barbaric' that they violate the Eighth
Amendment."

Palmer, 193 F.3d at 352 (quoting Novak v. Beto, 453

F.2d 661, 665 (5th Cir. 1971)). Accepting Wilturner 1 s allegations
as true, he has stated a plausible claim that the conditions of his
confinement deprived him of basic hygiene needs and exposed him to
health

sks in violation of contemporary standards of decency and

the Eighth Amendment.

See Bradley v. Puckett,

157 F.3d 1022,

1025-26 (5th Cir. 1998). Because his allegations further

into

Complaint, Docket Entry No. 1, pp. 8 9 � 19; Plaint
Docket Entry No. 5, pp. 5-6, at Questions 8-11.

f's MDS,

53

Plaintiff's Reply, Docket Entry No. 11, p. 3; Complaint,
Docket Entry No. 1, p. 10 �1 27-28.
54

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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 21 of 22

question

whether

the

defendants'

actions

were

objectively

reasonable under the circumstances, additional briefing and access
to records is needed to determine whether qualified immunity is
appropriate.

Accordingly, the defendants' motion to dismiss the

Eighth Amendment claims against them in their individual capacity
will be denied.
IV.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

Defendants' Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b) (1) and 12(b) (6)
(Docket Entry No. 8} is GRANTED
(a}

as to Wilturner's claims for injunctive
relief,

(b)

to the extent that Wilturner seeks
monetary damages from the defendants in
their official capacity under§ 1983, and

(c}

as to Wilturner's ADA claims against
defendants in their individual capacity;

and is DENIED as to Wilturner's
(a)

claims against Warden Richardson and
Assistant Warden Hutto based on their
ials,
roles as supervisory of

(b)

ADA claims against defendants in their
official capacity,

(c}

claims for compensatory damages as barred
by§ 1997e(e}, and

(d)

Eighth Amendment claims against defendants
in their individual capacity.
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Case 4:21-cv-00413 Document 12 Filed on 11/18/21 in TXSD Page 22 of 22

2.

The defendants shall file any motion for summary
judgment on the remaining claims within 90 days
from the date of this Memorandum Opinion and Order.

The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
SIGNED at Houston, Texas, on this 18th day of November, 2021.

SENIOR UNITED STATES DISTRICT JUDGE

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