Aguilar v. Johnson et al.

Filing 79

REPORT AND RECOMMENDATION: that the Court deny Plaintiff's 73 Motion for Stay. In addition, it is recommended that the Court grant Defendants' 65 Motion for Summary Judgment and render a take nothing judgment. Signed by Judge Andrew W. Austin. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

RUBEN BRISENO AGUILAR #11-09405,
Plaintiff,
v.
L. JOHNSON #757, J. BARTLETT
#1197, L. TOWNE #1732, W. TATE
#3357, W. ERVIN #186, C. FULLER
#762, C. WALSH #4133, R. SANCHEZ
#4489, R. VILLAREAL #4350,
M. KELLEY #3188, and
M. WALTERS #3623,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

Case No. A-11-CV-491-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s Amended Complaint brought pursuant to 42 U.S.C. § 1983
(Document 43), Defendants’ Motion for Summary Judgment (Document 65), Plaintiff’s Response
in Opposition (Document 68), Defendants’ Reply (Document 69), and Plaintiff’s Surreply
(Document 70). Also before the Court is a request by Plaintiff to stay the case pending his release

from county jail. Mot. for Stay (July 25, 2012) (Document 73). Plaintiff, proceeding pro se, has
been granted leave to proceed in forma pauperis. Order (June 15, 2011) (Document 4).
For the reasons set forth below, the undersigned concludes that the motion to hold the case
in abeyance should be denied and the motion for summary judgment should be granted.
BACKGROUND
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against eleven employees at the Travis
County Correctional Center (“TCCC”) alleging harassment, failure to protect from harm, retaliation,
and unsanitary conditions. At the time he filed his original complaint, Plaintiff was incarcerated at
TCCC. Orig. Compl. at 1 (Document 1).
On February 25, 2011, Plaintiff was booked into the jail for the offense of theft. Mot. for
Summ. J. Ex. A-2 at 2450004. On March 21, 2011, Plaintiff was also ordered to be held for the
offense of Aggravated Assault 1st Degree Felony. Id. at 2450020. While in the custody of the
Travis County Sheriff’s Office (“TCSO”), Plaintiff filed many grievances, which were all found to
be meritless. Mot. for Summ. J. Exs. A, A-7.
Plaintiff has had repeated incarcerations at TCCC. Mot. for Summ. J. Exs. A, A-5. During
past incarcerations at TCCC, Plaintiff sometimes requested to be placed in protective custody and
at other times indicated that he did not need it. Mot. for Summ. J. Ex. A, A-7 at 2450434. During
the relevant time at TCCC, Plaintiff was at times also placed in psychiatric and administrative
separation housing. Id. On March 23, 2011, Plaintiff was placed in an administrative separation cell
for refusing to be housed with other inmates. Mot. for Summ. J. Ex. A, A-7 at 2450434. After
weekly reviews by the Jail Management Team, the team agreed on April 26, 2011 that there was no
evidence to support Plaintiff’s view that he was in danger and unable to be housed with others, and
2

Plaintiff was moved to general population housing. Id. Within a day of being moved, Plaintiff
claimed that he was suicidal and was therefore moved to the Health Services Building. Mot. for
Summ. J. Ex. A-7 at 2450435. In addition, during much of Plaintiff’s incarceration, he was placed
in administrative separation due to disciplinary infractions, which kept him separate from other
inmates. Id. As a result, Plaintiff spent only one day in general population during the time period
at issue in his lawsuit. See id. at 2450434.
On July 12, 2011, Plaintiff submitted a complaint to the Texas Commission on Jail
Standards, asserting many of the same allegations in this lawsuit, that is, that TCCC officers harassed
him and told other prisoners that he was a snitch, jeopardizing his safety. Mot. for Summ. J. Ex. A-2
at 2451583. Plaintiff also alleged that the trustees who served his meals insinuated that they were
tampering with his food. Id. Sergeant Johnson, as the TCSO Grievance Sergeant, had investigated
Plaintiff’s various grievances and found no evidence to support his allegations. Mot. for Summ. J.
Exs. A, A-2 at 2451581. The Texas Commission on Jail Standards also determined that Plaintiff’s
complaints were unfounded, stating that “no violation of jail standards [had] occurred.” Mot. for
Summ. J. Ex. A-7 at 2451704; see also id. at 2451703.
Shortly thereafter, Plaintiff brought this suit. His basic complaints consist of allegations of
“deliberate indifference” and “wanton harassment.” Orig. Compl. at 3; Response (responding to
order for a more definite statement) (Document 6). Defendants have moved for summary judgment,
asserting that they should be awarded judgment as a matter of law on Plaintiff’s claims, and that they
are entitled to qualified immunity. Other than his own affidavits, Plaintiff does not proffer

3

competent summary-judgment evidence for the Court’s consideration.1 As a result, his extensive
allegations are presented.
Plaintiff alleges Sergeant Johnson and Sergeant Bartlett violated his civil rights by not
placing him in protective custody due to his status as an ex-gang member. Document 43 at 1-31.
As a result of the alleged improper classification, Plaintiff contends he was placed in danger of
irreparable harm. Id. at 1. Plaintiff alleges that he met with Officer Garza of the gang unit and Garza
recommended protective custody and advised him to refuse to be moved if that was attempted.
Document 8 at 1a; see also Mot. for Summ. J. Ex. A-4 (audio recording of interview of Plaintiff by
Officer Garza on Mar. 17, 2011); Document 68 Ex. 4 (email from J. Garza dated Aug. 25, 2003).
Plaintiff alleges that Sergeant Johnson and Sergeant Bartlett deliberately disregarded Officer Garza’s
alleged recommendation to leave Plaintiff in administrative segregation, placing him in imminent
danger and at risk for irreparable harm by forcing him out of protective custody in administrative
segregation. Orig. Compl. at 4; Document 6. Plaintiff alleges that Johnson and Bartlett knew of
Plaintiff’s history as an ex-gang member, but as members of the Classification Committee which
decides housing for inmates, they refused to leave him in administrative segregation in disregard of
his safety and mental health needs. Document 8 at 1a, 2. Plaintiff alleges that despite knowing the
dangers of general population to him, he was sent to general population housing and he attempted

1

In addition to his own affidavits, Plaintiff includes two witness statements that are not in
affidavit form as required by Federal Rule of Civil Procedure 56, nor do they follow the rules for a
declaration set out by 28 U.S.C. § 1746. See Document 68 Exs. E-1, F-1. In addition, they are each
just one sentence and address only a minor part of Plaintiff’s claims. Moreover, Plaintiff’s affidavits
in large part present self-serving and conclusory statements and legal opinions despite the fact that
evidence opposing summary judgment should “not replace conclusory allegations of the complaint
or answer with conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888, 110 S. Ct. 3177, 3188 (1990).
4

suicide by hanging on July 19, 2011. Document 45 at 3. Plaintiff also contends that when he refused
to move to the general population, he was sent to lockdown where he suffered a psychotic episode,
did not eat, and suffered physically and mentally, whereupon he was moved to the health services
facility. Document 8 at 1a, 2. Johnson and Bartlett both sharply disagree with Plaintiff’s version
of events and the decisionmaking that occurred via sworn affidavits. Mot. for Summ. J. Ex. A (Aff.
of L. Johnson); Mot. for Summ. J. Ex. B (Aff. of J. Bartlett). Johnson also asserts compliance with
relevant policies and procedures and due attention to Plaintiff’s history and medical files, including
through the weekly meetings of the Jail Management Team, which monitors and determines
appropriate housing. See Mot. for Summ. J. Exs. A-1– A-3, A-5–A-7; see also Mot. for Summ. J.
Exs. A-I.
Contrary to Plaintiff’s allegations, Garza’s interview of Plaintiff concerning his housing
request does not reflect any concern by either Garza or Plaintiff about Plaintiff’s gang history or a
fear of safety related to gang history or gang retaliation. Mot. for Summ. J. Ex. A-4. In fact, Garza
confirmed with Plaintiff that no one was giving Plaintiff problems or giving him any “dirty looks.”
Id. In addition, Garza emphasized to Plaintiff that the source of potential trouble that existed in the
past for Plaintiff (in 2003) was gone. Id. Garza did not recommend protective custody, but
recommended administrative segregation merely based on Aguilar’s personal preference to be
housed alone. Id.
In 2004, during a prior incarceration, Plaintiff was cleared for housing in general population
because he represented he was not under any threat from the Texas Syndicate gang. Mot. for Summ.
J. Ex. A at 3. In incarcerations since then, he had been placed in the general population without
problems. Id.; Mot. for Summ. J. Ex. B at 2. In his last incarceration at TCCC, he was never
5

determined to need protective custody and there were no threats to him except from himself. Mot.
for Summ. J. Ex. A at 3.
Plaintiff alleges that while he suffered a psychotic episode in the suicide prevention cell,
Sergeant Town harassed him by ordering an extraction team despite the fact that he was lying
prostrate. Orig. Compl. at 4; Document 6. While the extraction team stripped him of his garment,
Plaintiff asserts Sergeant Town (a woman) further harassed him by observing him, which was
humiliating. Id.; Orig. Compl. at 4; Document 8 at 3; Document 43 at 2. Plaintiff also alleges
Sergeant Town was callous in not intervening to stop the guards’ laughing and harassing him during
the event, and she covered up the guards’ misconduct so they could continue their harassment. Orig.
Compl. at 4; Document 6; Document 8 at 3. Town disputes Plaintiff’s rendition by sworn affidavit
and also asserts in detail she followed TCCC policies. Mot. for Summ. J. Ex. C (Aff. of L. Town);
see also Mot. for Summ. J. Ex. A-6 (video of incident).
During the same extraction from the suicide prevention cell, Plaintiff alleges Officer Tate
urged the extraction team to taze Plaintiff and shoot him with pepper spray, which caused Plaintiff
extreme fear, particularly during his psychotic episode. Document 8 at 4. After being moved from
the suicide cell to another unit, Plaintiff alleges Officer Tate continually harassed him by calling him
a “snitch” and a “punk” and created a risk of irreparable harm for Plaintiff by telling other inmates
Plaintiff was a snitch. Id.; Orig. Compl. at 4a; Document 6. Officer Tate also interfered, Plaintiff
alleges, with his medical treatment by telling the doctor that he was faking his mental illness.
Document 8 at 4. Plaintiff also alleges when he filed a grievance based on Officer Tate’s conduct,
Officer Tate harassed him by telling Sergeant Town lies, and threatening him with shakedowns and
cell searches, which insinuated he would plant something in Plaintiff’s cell. Orig. Compl. at 4a;
6

Document 6; Document 45 at 2. Tate states through a written affidavit that he was not present
during the extraction, and disputes the other allegations as well. Mot. for Summ. J. Ex. D (Aff. of
W. Tate); see also Mot. for Summ. J. Ex. A-6 (video of extraction).
Plaintiff alleges Officer Fuller retaliated against him for filing a grievance by telling other
inmates that he had to stop doing them favors with extra food because Plaintiff was a snitch, which
caused problems for Plaintiff with other inmates. Orig. Compl. at 4a; Document 6; Document 8 at
6; Document 45 at 2. By sworn affidavit, Fuller refutes these accusations. Mot. for Summ. J. Ex.
F (Aff. of C. Fuller). Plaintiff also alleges Officer Walsh similarly harassed Plaintiff and put his life
in danger by telling inmates he was a snitch. Document 8 at 7. Walsh disagrees with the accusations
through sworn affidavit. Mot. for Summ. J. Ex. G (Aff. of C. Walsh). Likewise, according to
Plaintiff, Officer Sanchez harassed and endangered Plaintiff by telling other inmates he was a snitch,
particularly by telling the trustees who handled Plaintiff’s food. Document 8 at 8; Document 45 at
2. Sanchez also refutes the accusations by sworn affidavit. Mot. for Summ. J. Ex. H (Aff. of R.
Sanchez).
When Plaintiff was in a suicide prevention cell, Plaintiff alleges Officer Ervin harassed him
by deliberately refusing him a tray of food and lied to Sergeant Foster about it. Orig. Compl. at 4a;
Document 6; Document 8 at 5; Document 45 at 2. Plaintiff also alleges Officer Ervin repeatedly told
other inmates Plaintiff was a snitch. Document 8 at 5; Document 45 at 2. Ervin states in a sworn
affidavit that he did not deny Plaintiff a meal, but offered him a sack lunch multiple times in keeping
with TCCC policies, and never told other inmates Plaintiff was a snitch. Mot. for Summ. J. Ex. E
(Aff. of W. Ervin). In similar fashion, according to Plaintiff, Officer Villareal harassed him by
telling inmates that Plaintiff was a snitch, including the trustees serving food, deliberately placing
7

him at risk of harm and causing trustees to contaminate his food. Orig. Compl. at 4a; Document 6;
Document 8 at 9; Document 45 at 2. Villareal counters these accusations by sworn affidavit. Mot.
for Summ. J. Ex. I (Aff. of R. Villareal). Plaintiff asserts that on August 3, 2011, Officer Walters
denied Plaintiff a food tray inappropriately, retaliating against him for filing a grievance against
Officer Erwin and causing him additional pain and suffering. Document 45 at 1. Walters also
disputes these accusations by sworn affidavit. Mot. for Summ. J. Ex. K (Aff. of M. Walters).
Plaintiff further alleges that Officer Kelly harassed him by spreading rumors that Plaintiff
was a snitch to purposely put him at risk of harm. Orig. Compl. at 4a; Document 6; Document 8 at
10; Document 45 at 2. Plaintiff alleges Officer Kelly also wrongfully blamed a July 18, 2011
altercation with another inmate on Plaintiff and gave him a wrongful disciplinary case as retaliation
for naming him as a defendant in the lawsuit. Document 45 at 2. Kelly counters these accusations
by sworn affidavit. Mot. for Summ. J. Ex. J (Aff. of M. Kelly).
Plaintiff never alleges that he suffered any physical injury as a consequence of his housing
placement or the purported harassment he experienced, nor does he allege that any other inmate ever
harmed him, threatened him, or attempted to harm him. See Orig. Compl.; Documents 8, 43. He
seeks punitive damages of $140,000 and an injunction, as well as the costs of his suit. Orig. Compl.
at 4; Document 8 at 11; Document 43 at 4.
ANALYSIS
I.

ARGUMENTS
Defendants move for summary judgment, arguing that they did not deliberately ignore risks

to Plaintiff’s safety or mental health, they did not retaliate against Plaintiff, Plaintiff’s housing
classifications were proper, his conditions-of-confinement claims are unsubstantiated, and he fails
8

to present competent summary-judgment evidence. Plaintiff contends qualified immunity is not
available to Defendants, his documentation and statements demonstrate he was improperly classified
with regard to housing and suffered from Defendants’ failure to protect, and experienced harassment,
retaliation, and unsanitary conditions. Lastly, he asserts that he did not have to be attacked in order
to have a successful failure-to-protect claim.
II.

SUMMARY JUDGMENT STANDARD
When a summary-judgment motion is presented, a court may render judgment if the evidence

shows that there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. See, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The
adverse party to such a motion must identify specific facts showing there is a genuine issue for trial.
See, e.g., Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED . R. CIV . P. 56; see
also James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (“The standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational
trier of fact could find for the non-moving party based upon the record evidence before the court.”).
In order to establish a genuine dispute as to material facts, the nonmoving party must “go beyond
the pleadings,” and by affidavits or other competent summary-judgment evidence, identify “specific
facts” that show there is a genuine issue for trial. Bustos v. Martini Club Inc., 599 F.3d 458, 468 (5th
Cir. 2010) (quotation and citation omitted). Conclusory allegations, unsubstantiated assertions, or
only a scintilla of evidence will not suffice. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
In deciding whether to grant summary judgment, the Court views the evidence in the light
most favorable to the party opposing summary judgment and indulges all reasonable inferences in
favor of that party. See, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994
9

(1962) (per curiam). If material facts are not in genuine dispute, a court may resolve the case as a
matter of law. See, e.g., Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir. 1994).
III.

OFFICIAL CAPACITY CLAIMS
To the extent that Plaintiff presents claims against Defendants in their official capacity, those

claims must fail. A suit against a public official is in reality a suit against the governmental entity
that the official represents. Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). Therefore, a suit
against Defendants in their official capacity is a suit against Travis County. A political subdivision,
however, cannot be held responsible for a deprivation of a constitutional right merely because it
employs a tortfeasor; under § 1983, a local government unit cannot be held responsible for civil
rights violations under the theory of respondeat superior. Johnson v. Moore, 958 F.2d 92, 94 (5th
Cir. 1992). In order to hold a local government unit responsible under § 1983, there must be a
custom or policy that causes the plaintiff to be deprived of a constitutional right. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2038 (1978). Thus, Travis County could violate
an individual’s rights in a way actionable under § 1983 only through the implementation of a policy
by direct order or promulgation, or through informal acceptance of a customary practice by its
employees. See Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984). An official policy or
custom cannot be inferred from a single incident of misconduct by a government employee. Polk
County v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 454 (1981).
Plaintiff fails to point to any official policy or any custom or practice as the cause of his
alleged injuries. See Document 8 at 11. Therefore, Defendants should be granted summary
judgment on Plaintiff’s official capacity claims.

10

IV.

INJUNCTIVE RELIEF
Plaintiff seeks both injunctive relief and punitive damages. Plaintiff, however, is no longer

detained in the Travis County Correctional Complex, of which he complains, and is now located in
the Blanco County Jail. See Document 77 (Sept. 25, 2012) (letter from Plaintiff indicating new
location). As such, his claims for injunctive relief are moot. See, e.g., Herman v. Holiday, 238 F.3d
660, 665 (5th Cir. 2001) (holding that transfer from facility rendered prisoner’s claims for injunctive
relief moot).
V.

MERITS OF INDIVIDUAL CAPACITY CLAIMS
A.

Deliberate Indifference
1.

Plaintiff’s Safety

Asserting deliberate indifference claims, Plaintiff contends that he was improperly classified
with regard to appropriate housing and forced into the general population despite dangers to his
safety there as an ex-gang member. He also contends that he was labeled a snitch by various
Defendants, putting him at risk for irreparable harm.2
Because Plaintiff was a pretrial detainee during the time in question, his constitutional rights
derive from the procedural and substantive due process guarantees of the Fourteenth Amendment,
2

Defendants emphasize that Plaintiff has not claimed any physical injury and assert that he is
barred from any recovery by the Prison Litigation Reform Act (“PLRA”), which includes a statutory
bar against recovery for compensatory damages for mental or emotional injury absent a physical
injury. See Mot. for Summ. J. at 10; see also 42 U.S.C. §1997e(e). The PLRA provides in part:
“[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Despite the
limitations imposed by § 1997e(e), however, a prisoner can, absent a showing of physical injury,
pursue punitive or nominal damages based upon a violation of his constitutional rights. See Hutchins
v. McDaniels, 512 F.3d 193, 197-98 (5th Cir. 2007). Because Plaintiff does not seek any
compensatory damages, but instead seeks punitive damages, this statutory bar does not preclude his
claims.
11

whereas the constitutional rights of convicted inmates derive from the Eighth Amendment’s
prohibition on cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct.
1970, 1976 (1994); Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.1996) (en banc). However,
the standard for analyzing failure-to-protect claims is the same. Id. at 647-48.
To prevail on a § 1983 failure to protect claim, Plaintiff must demonstrate that “he was
incarcerated under conditions posing a substantial risk of serious harm and that prison officials were
deliberately indifferent to his need for protection.” Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.
1999). The deliberate indifference standard in a failure-to-protect claim is subjective, not objective.
It requires proof that the official actually knew of a substantial risk of serious harm and failed to act.
Farmer, 511 U.S. at 832-34, 114 S. Ct. at 1976-77. “A prison official’s duty under the Eighth
Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison
officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Id.
at 844-45, 114 S. Ct. at 1983.
Plaintiff has not identified a material fact dispute to defeat summary judgment on his failureto-protect claims. In this case, members of the Jail Management Team stated that they considered
Plaintiff’s safety prior to being placed in the general population. See Mot. for Summ. J. Exs. A, B.
Further, no harm or threats of harm came to Plaintiff as a result of his housing at TCCC. Plaintiff
relies on the fact that he was not housed in protective custody or administrative segregation the entire
time he was incarcerated, and contends this failure amounts to a failure to adequately protect him,
but the summary-judgment evidence shows that his safety was specifically considered, both by the
Jail Management Team and Officer Garza. In addition, in prior incarcerations at TCCC, Plaintiff
was housed in the general population without incident. Indeed, in 2004, Plaintiff had disclaimed any
12

threat to his safety due to his status as an ex-gang member and Officer Garza, on whom Plaintiff
relies in making his claims, specifically recognized that the threat that once existed and that he had
recognized in 2003 no longer existed in 2011.3 See Mot. for Summ. J. Ex. A-4. Moreover, Plaintiff
was in the general population for only one day and at all other times, was in administration
segregation or health services.
Plaintiff also fails to present summary-judgment evidence in support of the second
requirement for his claim, that is, he does not present evidence that Defendants actually knew of a
substantial risk of serious harm and failed to act. See Farmer, 511 U.S. at 845, 114 S. Ct. at 1983.
For an official to act with deliberate indifference, “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.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; see also Horton, 70 F.3d at 401
(same). Indeed, Plaintiff fails to show that prison officials were aware of facts that lead to the
inescapable conclusion that he was exposed to substantial danger. He relies on Officer Garza’s
recommendation for protective custody back in 2003 as the basis of his argument but fails to address
Garza’s more recent opinion or any of the other evidence undermining his assertion that Defendants
were aware of danger to his safety.
3

Plaintiff contends he was not properly classified when he was not housed in protective custody,
but he does not assert that the TCCC classification procedures are not reasonably related to TCCC’s
interest in maintaining jail security, see Jones v. Diamond, 636 F.2d 1364, 1374, 1376 (5th Cir.
1981), nor does he contend that classification policies and procedures were not followed in his case.
See Mot. for Summ. J. Exs. A-1, Ex. A-3 at 2450346-48, 2450355-57. Evidence in the record
indicates that the Jail Management Team reviewed Plaintiff’s status for his safety as well as the
safety and security of other inmates and the facility. Mot. for Summ. J. Exs. A, A-7, B. Moreover,
an inmate does not have a protectable liberty or property interest in his custodial classification, and
his disagreement with that classification is insufficient to establish a constitutional violation. See,
e.g., Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995); Wilson v. Budney, 976 F.2d 957, 958 (5th
Cir. 1992).
13

With regard to the accusations that Defendants labeled him a snitch and created a risk of
serious harm, even assuming that Defendants did so label him, Plaintiff fails to present summaryjudgment evidence that Defendants were deliberately indifferent to his safety. Plaintiff was placed
in administrative segregation or in health services for all but one day. And that one day of placement
in the general population occurred only after a decision by the Jail Management Team that included
consideration of Plaintiff’s history and safety. Moreover, at no time did Plaintiff incur any injury
at the hands of another, nor did he report any attempts by other prisoners to harm him.
Furthermore, to the extent Plaintiff claims deliberate indifference to his mental health needs,
he does not identify summary-judgment evidence showing that Defendants deliberately ignored his
mental illness. The evidence instead shows that Defendants were aware of Plaintiff’s mental health
history. Mot. for Summ. J. Exs. A, A-3 at 2450340, 2450352-53. No part of the record reflects that
Defendants disregarded mental health considerations nor does evidence suggest that any Defendant
was aware that Plaintiff faced a risk of harm because of his mental health but disregarded that
potential harm by not taking measures to abate it. In fact, for example, Plaintiff admits that he was
sent to observation due to his mental health condition. Document 43 at 3. Moreover, the evidence
shows that Defendants took steps to prevent possible harm, such as protecting Plaintiff from harming
himself when he was suicidal. Mot. for Summ. J. Exs. A-3, D.
Plaintiff fails to identify appropriate summary-judgment evidence that supports his claims
of deliberate indifference to his physical safety and mental health. Accordingly, summary judgment
on Plaintiff’s deliberate indifference claims should be granted to Defendants.

14

2.

Unsanitary Jail Conditions

Plaintiff also complains about trustees’ purported contamination of his food, which appears
to be a complaint about his conditions of confinement. “In general, the State’s incarceration of
pretrial detainees and convicted state prisoners comports with due process guarantees because of the
State’s recognized interests in detaining defendants for trial and in punishing those who have been
adjudged guilty of a crime.” Hare, 74 F.3d at 638. In protecting these interest, the State has the
responsibility to attend to the essentials of the well-being of the detainees and prisoners. Id. at 63839.
[W]hen the State by the affirmative exercise of its power so restrains an individual’s
liberty that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs–e.g., food, clothing, shelter, medical care, and
reasonable safety–it transgresses the substantive limits on state action set by the
Eighth Amendment and the Due Process Clause. The affirmative duty to protect
arises not from the State’s knowledge of the individual’s predicament or from its
expressions of intent to help him, but from the limitation which it has imposed on his
freedom to act on his own behalf.
Id. at 639 (quoting DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200, 109
S. Ct. 998, 1005-06 (1989) (citations omitted)). A pretrial detainee is entitled to greater rights than
those afforded convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979).
While convicted prisoners have only an Eighth Amendment right to be free from “cruel and unusual”
punishment, a pretrial detainee has a Fourteenth Amendment Due Process right to be free from any
type of punishment. Id.; see also Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993) (“A
pretrial detainee . . . has a Fourteenth Amendment Due Process right to be free from punishment
altogether.”). When a pretrial detainee complains of a “condition of confinement,” the court must
determine whether the condition constitutes “punishment.” Bell, 441 U.S. at 537, 99 S. Ct. at 1873.

15

Punishment may be shown by evidence of “an expressed intent to punish.” Id. at 538, 99 S. Ct. at
1873-74. In addition, punishment may be inferred if the complained-of condition fails a rationalbasis test:
[I]f a particular condition or restriction of pretrial detention is reasonably related to
a legitimate governmental objective, it does not, without more, amount to
“punishment.” Conversely, if a restriction or condition is not reasonably related to
a legitimate goal–if it is arbitrary or purposeless–a court permissibly may infer that
the purpose of the governmental action is punishment that may not constitutionally
be inflicted upon detainees qua detainees.
Id. at 539, 99 S. Ct. at 1874; see also Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (holding
pretrial detainees’ due process rights are violated when “the condition of confinement is not
reasonably related to a legitimate, non-punitive governmental objective”).
In this case, Plaintiff does not put forward any evidence that any purportedly contaminated
food produced any adverse consequences or was manifested in any recognizable way. Plaintiff also
provides no evidence that the purported food contamination was imposed upon him as punishment
for unproven criminal conduct.
Accordingly, summary judgment should be granted to Defendants on Plaintiff’s conditionsof-confinement claims.
B.

Retaliation

Plaintiff also brings claims of retaliation. Such a claim requires a prisoner to show: (1) a
specific constitutional right; (2) the defendant’s intent to retaliate against the prisoner for his or her
exercise of that right; (3) a retaliatory adverse act; and (4) causation. Jones, 188 F.3d at 324-25. The
Fifth Circuit has cautioned district courts to “carefully scrutinize” claims of retaliation so that
prisoners do not “inappropriately insulate themselves from disciplinary actions by drawing the shield

16

of retaliation around themselves.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Mere
conclusory allegations of retaliation will not suffice; instead, an inmate must produce direct evidence
of motivation or a chronology of events from which retaliation may plausibly be inferred. Jones, 188
F.3d at 325. In addition, an inmate must produce more than just his personal belief that he is the
victim of retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Lastly, if a prisoner
is unable to point to a specific constitutional right that has been violated, the claim will fail. Jones,
188 F.3d at 325. In this case, Plaintiff presents only his own personal belief in support of his claims
of retaliation and also fails to present either direct evidence of Defendants’ motivation for retaliation
or a chronology that permits an inference of retaliation. Accordingly, Defendants are entitled to
summary judgment on the retaliation claims.
V.

QUALIFIED IMMUNITY
Defendants also assert that they are qualifiedly immune. The doctrine of qualified immunity

affords protection against individual liability for civil damages to officials “insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).
Further, the defense of qualified immunity protects a public official from both litigation and liability,
absent a showing that the official violated a constitutional right that was clearly established at the
time of the incident. Siegert v. Gilley, 500 U.S. 226, 231 (1991). “[Q]ualified immunity is designed
to shield from civil liability all but the plainly incompetent or those who violate the law.” Brady v.
Fort Bend County, 58 F.3d 173, 174 (5th Cir. 1995) (citation and quotation omitted).
In assessing the defense, a court determines whether the plaintiff has asserted the violation
of a clearly established constitutional right. Pearson v. Callahan, 555 U.S. 223, 236-37, 129 S. Ct.
17

808, 818-19 (2009); Woods, 60 F.3d at 1164. If that inquiry is answered in the affirmative, the
defendant’s conduct is then considered to determine if the conduct was objectively reasonable in
light of the established law. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). To rebut the
qualified-immunity defense when, as in this case, defendants have asserted qualified immunity in
a summary-judgment motion, the plaintiff must “establish[] a genuine fact issue as to whether the
official’s allegedly wrongful conduct violated clearly established law.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010).4 As explained above, Plaintiff fails to create a genuine factual dispute that
Defendants’ conduct violated clearly established law and constituted constitutional violations. As
such, Defendants are entitled to qualified immunity on Plaintiff’s claims.
V.

MOTION TO STAY
Plaintiff has requested this case to be held in abeyance until he is released from jail, arguing

that the case should be stayed while he is incarcerated. Mot. for Stay (July 25, 2012) (Document 73).
Defendants oppose the request. Defs.’ Resp. to Pl.’s Mot. to Stay (July 31, 2012) (Document 74).
Plaintiff has not provided an adequate basis for a stay and his request should be denied.
RECOMMENDATION
The undersigned recommends that the Court deny Plaintiff’s Motion for Stay (Document 73).
In addition, it is recommended that the Court grant Defendants’ Motion for Summary Judgment
(Document 65) and render a take nothing judgment.

4

If a plaintiff does make such a showing, then the plaintiff must also identify a genuine factual
dispute whether the defendants’ conduct was objectively unreasonable in light of clearly established
law at the time of the incident. See, e.g., Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008).
Plaintiff has not done so in this case.
18

OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The district court need not consider frivolous, conclusive, or general objections. Battle
v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall also bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 5th day of November, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

19