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Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 1 of 21
`United States District Court
`Southern District of Texas
`ENTERED
`June 20, 2018
`David J. Bradley, Clerk
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`DAVID LAND,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION NO. H-15-2607
`
`§
`§
`§
`§
`§
`§
`SHERIFF RAND HENDERSON, et al., §
`§
`§
`
`Defendants. 1
`
`MEMORANDUM OPINION AND ORDER
`
`The 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
`
`1The Complaint listed former Montgomery County Sheriff Tommy
`Gage, who has since retired, as the lead defendant. The court has
`substituted current Montgomery County Sheriff Rand Henderson, who
`succeeded Gage, as the proper party pursuant to Rule 25(d) of the
`Federal Rules of Civil Procedure.
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 2 of 21
`
`Defendants' MSJ and will dismiss
`
`this case for
`
`the reasons
`
`explained below.
`
`I. Background
`
`In December of 2013 Land was in custody at the Montgomery
`
`County Jail, pending criminal charges. 2
`
`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
`
`inmates. 3
`
`While 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 him. 4
`
`On
`
`December 13, 2013, Land entered a guilty plea to the child-
`
`pornography charges against him. 5 Shortly before he entered that
`
`2Complaint, Docket Entry No. 1, p. 4. For purposes of
`identification, all page numbers refer to the pagination inserted
`at the top of the page by the court's electronic filing system,
`CM/ECF.
`
`("Richards Affidavit"),
`Jeremiah Richards
`3Affidavit of
`attachment 3 to Defendants' MSJ, Docket Entry No. 45-3, p. 3 ~ 15.
`
`4 Plaintiff' s More Definite Statement, Docket Entry No. 25,
`p. 3; Complaint, Docket Entry No. 1, p. 4; Letter, attachment 2 to
`Complaint, Docket Entry No. 1-2, p. 1.
`
`5 Plaintiff' s More Definite Statement, Docket Entry No. 25,
`pp. 1-2.
`
`-2-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 3 of 21
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`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. 6 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
`
`Wilson. 7
`
`On December 16, 2013, Wilson returned to his cell following a
`
`visit with his criminal defense attorney who, coincidentally, also
`
`represented Land. 8 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 family. 9
`
`On January 7, 2014, Land allegedly sent another letter to
`
`Lieutenant Myrick, complaining about Wilson's threats. 10 Myrick,
`
`however, failed to intervene or move Land to another area of the
`
`Jail. 11 Land contends that he was subject to verbal abuse "night
`
`and day" and endured a "hostile environment" for a period of 106
`
`6Letter, Docket Entry No. 45-1, pp. 6-7; Plaintiff's More
`Definite Statement, Docket Entry No. 25, pp. 13-16.
`
`7 Plaintiff' s More Definite Statement, Docket Entry No. 25,
`p. 3.
`
`8Complaint, Docket Entry No.
`Definite Statement, Docket Entry No.
`
`1,
`25,
`
`p. 4;
`p. 2.
`
`Plaintiff's More
`
`9Complaint, Docket Entry No. 1, p. 4.
`
`10Plaintiff' s More Definite Statement, Docket Entry No. 25,
`p. 5.
`
`ncomplaint, Docket Entry No. 1, p. 4.
`
`-3-
`
`

`

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`
`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. 12 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. 13
`
`Land 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. 14 Land complains that he was used as bait. 15 Land
`
`did not ultimately testify against Wilson, who reportedly entered
`
`a plea agreement in the case against him. 16
`
`Because of Wilson's
`
`threats, Land
`
`suffered
`
`recurring
`
`nightmares and developed ulcers in his stomach due to the mental
`
`anguish he experienced. 17 Arguing that his constitutional rights
`
`were violated by housing him in a "hostile environment," Land seeks
`
`12 Id.; Plaintiff's More Definite Statement, Docket Entry
`No. 25, p. 2 and pp. 7-8 ~ 5.
`
`13 Plaintiff' s More Definite Statement, Docket Entry No. 25,
`p. 7.
`
`14Complaint, Docket Entry No. 1, p. 4; Plaintiff's More
`Definite Statement, Docket Entry No. 25, p. 6.
`
`15 Plaintiff' s More Definite Statement, Docket Entry No. 25,
`p. 6.
`
`16 Id.
`
`-4-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 5 of 21
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`damages from the defendants under 42 U.S.C. § 1983 and a formal
`
`apology for the psychological abuse that he endured. 18
`
`The court authorized service of process and requested an
`
`answer
`
`to
`
`the Complaint
`
`from Lieutenant Myrick and Sheriff
`
`Henderson. 19 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. 20 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. 21 The defendants also argue that Land has not
`
`established the liability of Sheriff Henderson, who is sued in his
`
`capacity as a supervisory official. 22
`
`II. Standard of Review
`
`Motions for summary judgment are governed by Rule 56 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
`
`18Complaint, Docket Entry No. 1, pp. 3, 4.
`
`27;
`for Service of Process, Docket Entry No.
`190rder
`Supplemental Order for Service of Process, Docket Entry No. 34.
`
`20Defendants' MSJ, Docket Entry No. 45, pp. 7-9.
`
`21 Id. at 9-18.
`
`22 Id. at 18-23.
`
`-5-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 6 of 21
`
`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.
`
`In 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 bane)
`
`(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
`
`-6-
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`

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`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 7 of 21
`
`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.
`
`2010)) i see also Matsushita Electric Industrial Co., Ltd. v. Zenith
`
`Radio Corp., 106 S. Ct. 1348, 1356 (1986).
`
`The 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) i 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, 292 (1976)). Nevertheless, "prose parties must still brief
`
`the issues and reasonably comply with [federal procedural rules]."
`
`Grant v. Cuellar, 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).
`
`A.
`
`Exhaustion of Administrative Remedies
`
`III. Discussion
`
`Because Land was incarcerated when he filed his Complaint,
`
`this action is governed by the PLRA, which requires prisoners to
`
`-7-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 8 of 21
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`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 in court").
`
`To
`
`exhaust administrative
`
`remedies
`
`an
`
`inmate at
`
`the
`
`Montgomery County Jail is required
`
`to complete a
`
`three-step
`
`process. 23 First, the inmate must file a grievance with the Inmate
`
`Grievance Board, which will issue a reply. 24 Second, if the inmate
`
`is unsatisfied with the Inmate Grievance Board's reply, he must
`
`appeal that decision to the Jail Administrator. 25 Third, if the
`
`inmate is not satisfied with the Jail Administrator's decision, he
`
`must appeal to the Sheriff, whose decision is final. 26
`
`The record shows that Land was aware of the administrative
`
`remedy process, which is explained to all inmates in the Jail
`
`23Defendants' MSJ, Docket Entry No. 45, p. 7 ~ 4.
`
`24 Id.
`
`t 7 8 cr 4
`a
`-
`11
`
`•
`
`25 Id.
`
`t 8 cr 4
`a
`11
`
`•
`
`26Id.
`
`-8-
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`

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`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 9 of 21
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`Handbook, 27 and that "Grievance forms are available to any inmate. " 28
`
`There is no evidence
`
`that Land filed a grievance about his
`
`classification or the conditions of his housing assignment in
`
`administrative segregation. 29 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. 30
`
`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. 31
`
`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 F. App'x 311,
`
`3 13 , 2 0 12 WL 614 3 7 2 , at * 1
`
`( 5th C i r . 2 0 12 ) .
`
`Land 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
`
`27 Id. ~~5-6; Acknowledgment of Receipt, Docket Entry No. 45-1,
`p. 8 (Land's acknowledgment that he received and read a copy of the
`Inmate Handbook) .
`
`28Richards Affidavit, attachment 3 to Defendants' MSJ, Docket
`Entry No. 45-3, p. 1 ~ 3.
`
`29 Id. at 1-2 ~~ 3-4.
`
`30 Plaintiff' s Response, Docket Entry No. 51, p. 2. Nor is
`there any evidence that Land filed any informal grievances.
`
`31 Inmate Grievance Forms, Docket Entry No. 45-1, pp. 3-5.
`
`-9-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 10 of 21
`
`grievance process. 32 As the defendants note, however, Lieutenant
`
`Myrick was not a Jail Administrator. 33 There is no evidence that
`
`Jail Administration would have been aware of information imparted
`
`to Lieutenant Myrick in the letter. 34 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 268).
`
`Based 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,
`
`32 Plaintiff's Response, Docket Entry No. 51, p. 2.
`
`33Richards Affidavit, Docket Entry No. 45-3, p. 3 ~ 12.
`
`34Id.
`
`-10-
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`

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`
`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.
`
`B.
`
`Claims Against Lieutenant Myrick
`
`The 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. 35
`
`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. 36
`
`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 him. 37
`
`35Defendants' MSJ, Docket Entry No. 45, p. 15 ~ 24.
`
`36 Id. at 15-18.
`
`37Id.
`
`-11-
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`

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`1. Qualified Immunity
`
`"The 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) (citation omitted) .
`
`A right
`
`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,
`
`10 7 s. Ct. 3 0 3 4 I 3 0 3 9
`
`( 19 8 7) .
`
`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,
`
`-12-
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`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 13 of 21
`
`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. Briggs, 106
`
`S. Ct. 1092, 1096 (1986)).
`
`As
`
`this 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 plaintiff need not present
`
`'absolute proof,' but must offer more than
`
`'mere allegations.'"
`
`Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
`
`2.
`
`Conditions of Confinement Under the Eighth Amendment
`
`As a convicted felon, Land's claims concerning the conditions
`
`of his confinement are subject
`
`to scrutiny under
`
`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,
`
`-13-
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`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 14 of 21
`
`291 (1976)). The Eighth Amendment prohibits the use of excessive
`
`physical force by correctional officers and also imposes certain
`
`duties on prison officials, "who must provide humane conditions of
`
`confinement[.]" Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994).
`
`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[.]" Id.
`
`(internal quotation marks and citations omitted).
`
`The Supreme Court has
`
`recognized, however,
`
`that prison
`
`conditions may be "restrictive and even harsh" without violating
`
`the Eighth Amendment, Rhodes v. Chapman, 101 S. Ct. 2392, 2399
`
`(1981), noting that "the Constitution does not mandate comfortable
`
`prisons [.]"
`
`Id. at 2400. 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. at 2399); Herman v. Holiday,
`
`238 F.3d 660, 664 (5th Cir.
`
`2001) . To make this showing a plaintiff must demonstrate that he
`
`was denied "some basic human need." Woods v. Edwards, 51 F.3d 577,
`
`581
`
`(5th Cir. 1995)
`
`(citations and
`
`internal quotation marks
`
`omitted) .
`
`See, ~' 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
`
`-14-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 15 of 21
`
`protection from excessive cold and wind, and provided no sanitary
`
`means of disposing of their waste) .
`
`If a sufficiently serious deprivation is shown, a plaintiff
`
`must
`
`then show
`
`that prison officials acted with "deliberate
`
`indifference" to the effect this deprivation would have on his
`
`health and safety. Farmer, 114 S. Ct. at 1977 (citations omitted).
`
`"Deliberate 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." Farmer, 114 S. Ct. at 1979. 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.
`
`The condition of confinement at issue concerns persistent
`
`verbal
`
`threats of harm by another
`
`inmate while Land was
`
`in
`
`administrative segregation, which reportedly caused Land to suffer
`
`recurrent nightmares, mental anguish, and stomach ulcers due to
`
`stress. As noted above,
`
`it is well established that prison
`
`officials have a duty to protect inmates from physical assault by
`
`-15-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 16 of 21
`
`other inmates. See Farmer, 114 S. Ct. at 1977 ("Being violently
`
`assaulted in prison is simply not
`
`'part of
`
`the penalty that
`
`criminal offenders pay for their offenses against society.'")
`
`(quoting Rhodes, 101 S. Ct. at 2399)
`
`However, Land does not cite,
`
`and the court has not found, any case which holds that an inmate
`
`has a constitutional right to be protected from verbal threats from
`
`another inmate. 38
`
`Assuming that the threats and the attendant level of mental
`
`anguish posed a sufficiently serious deprivation of a basic human
`
`need, Land does not allege facts showing that Lieutenant Myrick was
`
`aware of the adverse effects on his health, but that he failed to
`
`take reasonable measures to abate the problem with deliberate
`
`indifference. Although Land reportedly sent Lieutenant Myrick a
`
`letter in January of 2014 complaining about the threats, he does
`
`not allege facts showing that he alerted Myrick to any ill effects
`
`on his health. Moreover, at the time the threats were made Land
`
`and Wilson were housed in administrative segregation where they
`
`could not interact and there was no threat of physical harm. Land
`
`has not presented evidence showing that a reasonable officer in
`
`38The Fifth Circuit has repeatedly held that verbal threats
`against an
`inmate by
`a prison guard do not amount
`to
`a
`constitutional violation and are not actionable under 42 U.S.C.
`§ 1983.
`See Calhoun v. Hargrove, 312 F.3d 730, 734
`(5th Cir.
`2002); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);
`Robertson v. Plano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995)
`(citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983));
`Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993); Spicer v.
`Collins, 9 F. Supp. 2d 673, 683
`(E.D. Tex. 1998)
`(citations
`omitted) .
`
`-16-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 17 of 21
`
`Lieutenant Myrick's position would have known that Land was unsafe
`
`or that the conditions of confinement posed a danger to Land's
`
`health. Under these circumstances Land does not demonstrate that
`
`Myrick violated his constitutional rights by failing to move him to
`
`another area of the Jail when he was first apprised of the threats.
`
`Even assuming that a constitutional violation occurred, Land's
`
`claim that he was subjected to persistent verbal abuse in violation
`
`of the Eighth Amendment is not based on a particular holding or a
`
`robust consensus of cases of persuasive authority that places the
`
`question beyond debate.
`
`See Morgan, 659 F.3d at 371-72 (citing
`
`al-Kidd, 131 S. Ct. at 2084). Therefore, Land has not demonstrated
`
`that the challenged conduct violated a constitutional right that
`
`could be considered clearly established for purposes of qualified
`
`immunity. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). As
`
`a result, Land fails to overcome Lieutenant Myrick's entitlement to
`
`qualified immunity; and the defendants are entitled to summary
`
`judgment on this issue.
`
`C.
`
`Claims Against Sheriff Henderson
`
`Land sues Sheriff Henderson in his capacity as a supervisory
`
`official who is responsible for the care, custody, and control of
`
`inmates at the Montgomery County Jail alleging that he failed to
`
`properly train his employees to separate inmates who complain about
`
`persistent verbal threats. 39 A supervisory official cannot be held
`
`39Plaintiff's More Definite Statement, Docket Entry No. 25,
`p. 8.
`
`-17-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 18 of 21
`
`liable under § 1983 for the actions of subordinates "on any theory
`
`of vicarious liability." Thompkins v. Belt, 828 F.2d 298, 303 (5th
`
`Cir. 1987)
`
`(citations omitted).
`
`"A supervisory official may be
`
`held liable . . . only if (1) he affirmatively participates in the
`
`acts
`
`that cause
`
`the constitutional deprivation, or
`
`(2)
`
`he
`
`implements unconstitutional policies that causally result in the
`
`constitutional injury." Porter v. Epps, 659 F.3d 440, 446 (5th
`
`Cir. 2011)
`
`(internal quotation marks and citation omitted)
`
`A
`
`supervisor may also be liable based on a failure to train or
`
`supervise if:
`
`"(1) the supervisor either failed to supervise or
`
`train the subordinate official; (2) a causal link exists between
`
`the failure
`
`to train or supervise and
`
`the violation of
`
`the
`
`plaintiff's rights; and
`
`( 3)
`
`the failure to train or supervise
`
`amounts to deliberate indifference."
`
`Id.
`
`(quoting Goodman v.
`
`Harris County, 571 F.3d 388, 395 (5th Cir. 2009)).
`
`"' [D]eliberate indifference' is a stringent standard of fault,
`
`requiring proof that a municipal actor disregarded a known or
`
`obvious consequence of his action." Board of County Commissioners
`
`of Bryan County, Oklahoma v. Brown, 117 S. Ct. 1382, 1391 (1997);
`
`City of Canton, Ohio v. Harris, 109 S. Ct. 1197, 1204-05 (1989)
`
`("Only where a municipality's failure to train its employees in a
`
`relevant respect evidences a
`
`'deliberate indifference'
`
`to the
`
`rights of its inhabitants can such a shortcoming be properly
`
`thought of as a city 'policy or custom' that is actionable under
`
`-18-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 19 of 21
`
`§ 1983."). To establish the requisite deliberate indifference in
`
`this context, a plaintiff must show that the supervisory official
`
`had "actual or constructive notice that a particular omission in
`
`their training program causes city employees to violate citizens'
`
`constitutional rights," but that the official nevertheless chose to
`
`retain that program. Connick v. Thompson, 131 S. Ct. 1350, 1360
`
`(2011) (citation and internal quotation marks omitted) .
`
`"A pattern
`
`of similar constitutional violations by untrained employees is
`
`ordinarily necessary
`
`to demonstrate deliberate
`
`indifference,"
`
`because "[w]ithout notice that a course of training is deficient in
`
`a particular respect, decisionmakers can hardly be said to have
`
`deliberately chosen a training program that will cause violations
`
`of constitutional rights."
`
`Id.
`
`Land has not demonstrated that his constitutional rights were
`
`violated in this case. Even assuming that a violation occurred, he
`
`has not established a pattern of similar violations as the result
`
`of a failure to train officers at the Jail or that the Sheriff
`
`maintained
`
`a
`
`deficient
`
`training
`
`program with deliberate
`
`indifference to the likelihood that such violations would occur.
`
`Because Land has not raised a genuine issue of material fact on
`
`this issue, he fails to establish liability on the part of Sheriff
`
`Henderson or his predecessor, former Sheriff Tommy Gage, who was in
`
`charge of
`
`the Jail while Land was
`
`there.
`
`Accordingly,
`
`the
`
`defendants are entitled to summary judgment on this issue.
`
`-19-
`
`

`

`Case 4:15-cv-02607 Document 57 Filed in TXSD on 06/20/18 Page 20 of 21
`
`IV. Land's Motion to Seal
`
`Citing the threats made by Wilson and concerns for his safety,
`
`Land has filed a motion to seal these proceedings. 40 The defendants
`
`oppose the request, noting that court proceedings and judicial
`
`records are typically open and accessible to the public as a matter
`
`of common law. 41
`
`"Courts have recognized that the public has a common law right
`
`to inspect and copy judicial records." S. E. C. v. Van Waeyenberghe,
`
`990 F.2d 845,
`
`848
`
`(5th Cir. 1993)
`
`(citing Nixon v. Warner
`
`Communications,
`
`Inc.,
`
`98
`
`s. Ct.
`
`1306,
`
`1312
`
`(1978);
`
`Broadcasting Corp. v. Clark, 654 F.2d 423, 429 (5th Cir 1981)).
`
`Access may be restricted at a district court's discretion "where
`
`court files might have become a vehicle for improper purposes."
`
`Id.
`
`"' [T] he district court's discretion to seal the record of
`
`judicial proceedings is to exercised charily,'" and "must balance
`
`the public's common
`
`law right of access against the interests
`
`favoring nondisclosure."
`
`Id. There is a "strong presumption that
`
`[court] proceedings should be subject to scrutiny by the public" by
`
`remaining unsealed. United States v. Holy Land Foundation for
`
`Relief and Development, 624 F.3d 685, 690 (5th Cir. 2010) (quoting
`
`United States v. Ladd, 218 F.3d 701, 704 (5th Cir. 2000))
`
`40 Plaintiff's Motion to Seal, Docket Entry No. 54, p. 1.
`
`41Defendants' Response to Plaintiff's Motion to Seal, Docket
`Entry No. 56, p. 1.
`
`-20-
`
`

`

`Case 4:15-cv-

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