United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
plaintiff, David Land, 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 at the Montgomery-County Jail,
which is operated by the Montgomery County Sheriff's
Office ("MCSO"). Pending before the court is
Defendants' Motion for Summary Judgment filed by
Montgomery County Sheriff Rand Henderson and Lieutenant
Myrick ("Defendants' MSJ") (Docket Entry No.
45) . Land has filed a Motion of Response to Defendants'
Answers ("Plaintiff's Response") (Docket Entry
No. 51) and a Motion Seeking That All Proceedings Be Sealed
("Plaintiff's Motion to Seal") (Docket Entry
No. 54) . After considering the pleadings, the exhibits, and
the applicable law, the court will grant the Defendants'
MSJ and will dismiss this case for the reasons explained
December of 2 013 Land was in custody at the
Montgomery-County Jail, pending criminal
charges. He was housed in administrative
segregation because the nature of the charges against him
(child pornography) and his status as a former sheriff's
deputy, who previously worked as a detention officer at the
Harris County Jail, put him at risk of violence by other
he was confined at the Montgomery County Jail in March of
2013, Land told his defense attorney that he had information
about a fellow inmate housed near him in administrative
segregation, Robert L. Wilson, who had made inculpatory
admissions about murder charges that were pending against
On December 13, 2013, Land entered a guilty plea to the
child-pornography charges against him. Shortly before he
entered that plea, Land sent a letter to Lieutenant Myrick at
the Montgomery County Jail stating that he had overheard
inculpatory remarks made by Wilson and that he wanted to
"testify" against him. According to Land, another
officer at the Jail (Sergeant Dotson) contacted the District
Attorney's Office by e-mail on December 9, 2013,
regarding Land's offer to testify against
December 16, 2013, Wilson returned to his cell following a
visit with his criminal defense attorney who, coincidentally,
also represented Land. During this visit Wilson allegedly found
out that Land had offered to testify against him, and Wilson
began to threaten Land's life and the lives of his
January 7, 2014, Land allegedly sent another letter to
Lieutenant Myrick, complaining about Wilson's
threats. Myrick, however, failed to intervene or
move Land to another area of the Jail. Land contends
that he was subject to verbal abuse "night and day"
and endured a "hostile environment" for a period of
106 and day" and endured a "hostile
environment" for a period of 106 days until he was
transferred to the Texas Department of Criminal Justice
("TDCJ") on March 31, 2014. During this
time, Land claims that Wilson threatened him on a daily
basis, reminding Land that Wilson could easily find him
because Land would have to register as a sex offender for the
rest of his life.
believes that "Jail Administration" did not move
him away from Wilson at the request of prosecutors and that
Jail "staff" was "listening in" to
overhear threats that could be used against Wilson in
court. Land complains that he was used as
bait. Land did not ultimately testify against
Wilson, who reportedly entered a plea agreement in the case
of Wilson's threats, Land suffered recurring nightmares
and developed ulcers in his stomach due to the mental anguish
he experienced. Arguing that his constitutional rights
were violated by housing him in a "hostile environment,
" Land seeks damages from the defendants under 42 U.S.C.
§ 1983 and a formal apology for the psychological abuse
that he endured.
court authorized service of process and requested an answer
to the Complaint from Lieutenant Myrick and Sheriff
Henderson. These defendants now move for summary
judgment, noting that Land did not exhaust administrative
remedies as required by the Prison Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(a), before filing
suit. The defendants argue in the alternative
that Land's claims fail as a matter of law because he
does not show that Lieutenant Myrick violated a clearly
established constitutional right and he does not otherwise
overcome Myrick's entitlement to qualified
immunity. The defendants also argue that Land has
not established the liability of Sheriff Henderson, who is
sued in his capacity as a supervisory official.
Standard of Review
for summary judgment are governed by Rule 5 6 of the Federal
Rules of Civil Procedure. Under this rule a reviewing court
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 106 S.Ct. 2548, 2552 (1986). A fact is
"material" if its resolution in favor of one party
might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2510 (1986). An issue is "'genuine'" if the
evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party. Id.
deciding a summary judgment motion the reviewing court must
"construe all facts and inferences in the light most
favorable to the nonmoving party." Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal
quotation marks and citation omitted). However, the
non-movant "cannot rest on [his]
pleadings" where qualified immunity is asserted.
Bazan, et rel. Bazan v. Hidalgo County, 246 F.3d
481, 490 (5th Cir. 2001) (emphasis in original). Nor can the
non-movant avoid summary judgment simply by presenting "
[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation." Jones v. Lowndes County,
Mississippi, 678 F.3d 344, 348 (5th Cir. 2012) (quoting
TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(a non-movant cannot demonstrate a genuine issue of material
fact with conclusory allegations, unsubstantiated assertions,
or only a scintilla of evidence). If the movant demonstrates
an "absence of evidentiary support in the record for the
nonmovant's case, " the burden shifts to the
nonmovant to "come forward with specific facts showing
that there is a genuine issue for trial." Sanchez v.
Young County, Texas, 866 F.3d 274, 279 (5th Cir. 2017)
(citing Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2 010)); see also Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106
S.Ct. 1348, 1356 (1986).
plaintiff proceeds pro se in this case. Courts
construe pleadings filed by pro se litigants under 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
isv to be liberally construed[.]'")
(quoting Estelle v. Gamble, 97 S.Ct. 285, 292
(1976)). Nevertheless, "pro se parties must
still brief the issues and reasonably comply with [federal
procedural rules]." Grant v. Cue liar, 59 F.3d
523, 524 (5th Cir. 1995) (citations omitted). The Fifth
Circuit has held that "[t]he notice afforded by the
Rules of Civil Procedure and the local rules" is
"sufficient" to advise a pro se party of
his burden in opposing a summary judgment motion. Martin
v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir.
1992) (per curiam).
Exhaustion of Administrative Remedies
Land was incarcerated when he filed his Complaint, this
action is governed by the PLRA, which requires prisoners to
exhaust administrative remedies before filing suit in federal
court. See 42 U.S.C. § 1997e(a). The Supreme
Court has emphasized that § 1997e(a) mandates exhaustion
of all administrative procedures before an inmate can file
any suit challenging prison conditions. See Booth v.
Churner, 121 S.Ct. 1819, 1825 (2001); Porter v.
Nussle, 122 S.Ct. 983, 988 (2002); Woodford v.
Ngo, 126 S.Ct. 2378, 2382-83 (2006); see also Jones
v. Bock, 127 S.Ct. 910, 918-19 (2007) (confirming that
"[t]here is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
exhaust administrative remedies an inmate at the Montgomery
County Jail is required to complete a three-step
process. First, the inmate must file a grievance
with the Inmate Grievance Board, which will issue a
reply. Second, if the inmate is unsatisfied
with the Inmate Grievance Board's reply, he must appeal
that decision to the Jail Administrator. Third, if the
inmate is not satisfied with the Jail Administrator's
decision, he must appeal to the Sheriff, whose decision is
record shows that Land was aware of the administrative remedy
process, which is explained to all inmates in the Jail
Handbook,  and that "Grievance forms are
available to any inmate."There is no evidence that Land
filed a grievance about his classification or the conditions
of his housing assignment in administrative
segregation. Land concedes that he did not file a
formal grievance concerning the issues that he
presents in his Complaint, explaining that he did not do so
because he was denied access to grievance
forms. The defendants' evidence shows,
however, that Land filed several formal grievances regarding
issues unrelated to the Complaint, reflecting that he had
access to the requisite forms while confined in
administrative segregation.Land's conclusory
allegation that he was denied access to grievance forms is
not sufficient to refute this evidence or raise a genuine
issue of material fact. See Kidd v. Livingston, 463
Fed.Appx. 311, 313, 2012 WL 614372, at *1 (5th Cir. 2012).
also appears to argue that the letter he sent to Lieutenant
Myrick in January of 2014 complaining about Wilson's
threatening behavior should be considered sufficient to
exhaust the grievance process. As the defendants note,
however, Lieutenant Myrick was not a Jail
Administrator. There is no evidence that Jail
Administration would have been aware of information imparted
to Lieutenant Myrick in the letter. Land cites no authority
and the court has not found any case in which the writing of
a letter, outside the context of a formal grievance
procedure, was held sufficient to properly exhaust
administrative remedies. The Fifth Circuit has repeatedly
taken a "strict" approach, demanding proper
compliance with administrative grievance procedures for
purposes of satisfying the exhaustion requirement. See
Butts v. Martin, 877 F.3d 571, 582 (5th Cir. 2017)
(citing Days v. Johnson, 322 F.3d 863, 866 (5th Cir.
2003)); see also Wilson v. Epps, 776 F.3d 296,
299-300 (5th Cir. 2015) (observing that substantial
compliance grievance procedures is not enough to satisfy the
exhaustion requirement) (citing Dillon, 596 F.3d at
on this record Land has not shown that he exhausted
administrative remedies regarding his claims or that the
grievance process was unavailable to him, and he has not
raised a material fact question on this issue. The Fifth
Circuit has emphasized that "pre-filing exhaustion of
prison grievance processes is mandatory" and that
district courts lack discretion to excuse a prisoner's
failure to exhaust his administrative remedies. Gonzalez
v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) . Because the
record reflects that Land failed to exhaust available
administrative remedies before filing this action, the
defendants are entitled to summary-judgment on this issue.
Although this issue is dispositive, the court will also
address the defendants' alternative arguments.
Claims Against Lieutenant Myrick
defendants state that all of the events that form the basis
of Land's Complaint took place after he pled guilty and
was convicted of the criminal charges against him on December
13, 2013. The defendants argue that Land fails to
demonstrate a violation of the Eighth Amendment to the United
States Constitution, which governs claims concerning the
conditions of confinement by convicted
prisoners. See Bell v. Wolfish, 99 S.Ct.
1861, 1869-70 (1979) (comparing standards under the Due
Process Clause that apply to pretrial detainees with
standards under the Eighth Amendment that apply to those
convicted of a crime); Hare v. City of Corinth,
Mississippi, 74 F.3d 633, 639 (5th Cir. 1996) (same).
Arguing further that Land fails to establish that a
constitutional violation occurred, Lieutenant Myrick moves
for summary judgment on the grounds that he is entitled to
qualified immunity from Land's claims against
doctrine of qualified immunity protects government officials
'from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Pearson v. Callahan, 129 S.Ct.
808, 815 (2009) (quoting Harlow v. Fitzgerald, 102
S.Ct. 2727, 2738 (1982)). A plaintiff seeking to overcome
qualified immunity must satisfy a two-prong inquiry by
showing: "(1) that the official violated a statutory or
constitutional right, and (2) that the right was 'clearly
established' at the time of the challenged conduct."
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)
is "clearly established" if its contours are
"sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Anderson v. Creighton, 107 S.Ct. 3034, 3039 (1987).
To make this showing, a plaintiff must point to
"controlling authority - or a robust consensus of
persuasive authority - that defines the contours of the right
in question with a high degree of particularity."
Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir.
2011) (citations and internal quotation marks omitted). While
there need not be a case directly on point, "existing
precedent must have placed the statutory or constitutional
question beyond debate." Mullenix v. Luna, 136
S.Ct. 305, 308 (2015) (quoting al-Kidd, 131 S.Ct. at
2083) . This is an "exacting standard, " City
and County of San Francisco, California v.
Sheehan, 135 S.Ct. 1765, 1774 (2015), that
"protects 'all but the plainly incompetent or those
who knowingly violate the law.'" Mullenix,
136 S.Ct. at 308 (quoting Malley v. Bricrgs, 106
S.Ct. 1092, 1096 (1986)) .
standard reflects, "[a] good-faith assertion of
qualified immunity alters the usual summary judgment burden
of proof, shifting it to the plaintiff to show that the
defense is not available." King v. Handorf, 821
F.3d 650, 653-54 (5th Cir. 2016) (internal quotation marks
and citations omitted). "The plaintiff must rebut the
defense by establishing that the official's allegedly
wrongful conduct violated clearly established law and that
genuine issues of material fact exist regarding the
reasonableness of the official's conduct."
Id. at 654 (quoting Gates v. Texas Dep't of
Protective & Regulatory Servs., 537 F.3d 404, 419
(5th Cir. 2008)). "To negate a defense of qualified
immunity and avoid summary judgment, the ...