United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KENNETH M. HOYT UNITED STATES DISTRICT JUDGE
Jesse Dale Hicks filed a complaint and an amended
complaint under 42 U.S.C. § 1983 and the
Americans With Disabilities Act (“ADA”) alleging
violations of his constitutional and statutory rights.
Defendants Robert Grant and Jacqueline Benton filed a motion
to dismiss on February 6, 2017, and defendant Rachel Primrose
filed a motion to dismiss on July 21, 2017. Hicks responded
to both motions. For the reasons stated below,
defendants' motions to dismiss are granted, and the
complaint and amended complaint are dismissed with prejudice.
is an inmate in the Texas Department of Criminal Justice
(“TDCJ”). He was designated as a security threat
based on what he alleges was an erroneous conclusion that he
is a member of a prison gang. Because of that classification,
he is in administrative segregation.
was admitted to the Administrative Segregation Diversion
Program (“ASDP”), a rehabilitative program
allowing inmates to renounce their gang affiliation and to be
moved from administrative segregation to general population.
He was transferred to the TDCJ's Ellis Unit to
participate in this program.
alleges that an unidentified TDCJ medical doctor advised TDCJ
staff that Hicks could not remain at the Ellis Unit because
Hicks suffers from congestive heart failure and the Ellis
Unit was not equipped to provide the necessary medical care.
Hicks alleges that defendants Grant and Benton removed Hicks
from the ASDP, and he was placed in administrative
segregation at the Polunsky Unit. He alleges that defendant
Primrose acquiesced in the alleged ongoing violations of his
rights, apparently by refusing to take action to return him
to the ASDP. Hicks contends that these actions violated his
rights under the ADA and the United States
Standard of Review
reviewing a motion to dismiss under rule 12(b)(6), the
complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be
taken as true. Campbell v. Wells Fargo Bank, 781
F.2d 440, 442 (5th Cir.1986). The standard of review under
rule 12(b)(6) has been summarized as follows: "The
question therefore is whether in the light most favorable to
the plaintiff and with every doubt resolved in his behalf,
the complaint states any valid claim for relief." 5
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357, at 601 (1969).
Exhaustion of Remedies
bringing a federal lawsuit challenging prison conditions, a
prisoner must first exhaust available administrative
remedies. 42 U.S.C. § 1997e(a); Jones v. Bock,
549 U.S. 199 (2007).
The Texas prison system has developed a two-step formal
grievance process. The Step 1 grievance, which must be filed
within fifteen days of the complained-of incident, is handled
within the prisoner's facility. After an adverse decision
at Step 1, the prisoner has ten days to file a Step 2
grievance, which is handled at the state level. This court
has previously held that a prisoner must pursue a grievance
through both steps for it to be considered exhausted.
Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir., 2004).
argues that Hicks' grievance does not identify any of
them. Hicks responds that his grievance is sufficient because
it complains about his removal from the ASDP, ...