Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 1 of 13
CLOSED,PRIS,STAYED
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:14−cv−03037

Zollicoffer v. Livingston et al Assigned to: Judge Alfred H Bennett Cause: 42:1983 Prisoner Civil Rights
Plaintiff Joshua D Zollicoffer also known as Passion Star

Date Filed: 10/23/2014 Date Terminated: 04/02/2018 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Christopher J. Kondon K&L Gates LLP 10100 Santa Monica Blvd. 7th Floor Los Angeles, CA 90067 310−552−5000 Email: christopher.kondon@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jael Humphrey−Skomer 120 Wall St 19th Fl New York, NY 10005 212−809−8585 Email: jhumphrey@lambdalegal.org TERMINATED: 06/18/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Noel Goodrich K&L Gates LLP 10100 Santa Monica Blvd 7th Floor Los Angeles, CA 90067 310−552−5547 Email: christina.goodrich@klgates.com ATTORNEY TO BE NOTICED
Demoya Renee Gordon Lambda Legal 120 Wall Street New York, NY 10005 212−809−8585 Email: dgordon@lambdalegal.org ATTORNEY TO BE NOTICED
Paul David Castillo Lambda Legal Defense and Education Fund 3500 Oak Lawn Ave Ste 500 Dallas, TX 75219−6722 214−219−8585 Email: pcastillo@lambdalegal.org ATTORNEY TO BE NOTICED
Saman M Rejali K&L Gates LLP 10100 Santa Monica Blvd. 7th Floor

Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 2 of 13
Los Angeles, CA 90067 310−552−5000 Email: saman.rejali@klgates.com ATTORNEY TO BE NOTICED
Kenneth D Upton , Jr Lambda Legal Defense and Education Fund Inc 3500 Oak Lawn Ave Ste 500 Dallas, TX 75219−6722 214−219−8585 Fax: 214−219−4455 Email: kupton@lambdalegal.org ATTORNEY TO BE NOTICED

V. Defendant Brad Livingston personally and in his official capacity as Executive Director of the Texas Department of Criminal Justice ("TDCJ")
Defendant Ralph Bales in his personal capacity
Defendant Joni White personally and in her official capacity as Assistant Director of TDCJ's Classification and Records Department
Defendant Bruce Armstrong in his personal capacity

represented by Kim J Coogan Office of the Atty Gen of Texas Law Enforcement Defense Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−936−2109 Email: kim.coogan@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth Byron Dennis Texas Attorney General PO Box 12548 Austin, TX 78711−2528 512−463−2080 Email: seth.dennis@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY

Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 3 of 13

ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Fernando Fuster in his personal capacity

represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kenneth Dean in his personal capacity

represented by Christin Cobe Vasquez Office of the Attorney General PO Box 12548 Austin, TX 78711 512−463−2080 Fax: 512−370−9996 Email: christin.vasquez@oag.texas.gov TERMINATED: 04/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Brian Blanchard in his personal capacity

represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Rene Maldonado in his personal capacity

represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ralph Marez, Jr. in his personal capacity

represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 4 of 13

Defendant Sigmund L Smith in his personal capacity Defendant Prince Pickett in his personal capacity
Defendant Leslie Walters in her personal capacity Defendant Ronald Fox personally and in his official capacity as Senior Warden at the Robertson Unit
Defendant Adam Gonzales personally and in his official capacity as Assistant Warden at the Robertson Unit
Defendant Jimmy S Webb personally and in his official capacity as Assistant Warden at the Robertson Unit
Defendant Juan Lopez personally and in his official capacity as Sergeant at the Roberson Unit Defendant William Stephens personally and in his official capacity as Director of TDCJs Correctional Institution Division TERMINATED: 09/22/2016

represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Lynne Sharp personally and in her official capacity as TDCJ Safe Prisons/PREA Manager and PREA Ombudsman TERMINATED: 09/22/2016
Defendant Lorie Davis personally and in her official capacity as Deputy Director Management Operations of TDCJ TERMINATED: 09/22/2016
Defendant Robert Eason personally and in his official capacity as Deputy Director Prison and Jail Operations of TDCJ TERMINATED: 09/22/2016
Defendant James Sigmund in his personal capacity
Defendant Leslie Harman

represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kim J Coogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED
represented by Christin Cobe Vasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth Byron Dennis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/23/2014
10/23/2014 10/23/2014
10/23/2014 10/23/2014 10/23/2014

# Docket Text
1 Prisoner Civil Rights COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541−13888148) filed by Joshua D Zollicoffer. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet)(Upton, Kenneth) (Entered: 10/23/2014)
2 MOTION for Paul D. Castillo to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 11/13/2014. (Upton, Kenneth) (Entered: 10/23/2014)
3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 11/13/2014. (Upton, Kenneth) (Entered: 10/23/2014)
4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 11/13/2014. (Upton, Kenneth) (Entered: 10/23/2014)
5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 11/13/2014. (Upton, Kenneth) (Entered: 10/23/2014)
6 MOTION for Saman M. Rejali to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 11/13/2014. (Upton, Kenneth) (Entered: 10/23/2014)

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10/24/2014
10/24/2014 10/24/2014
10/27/2014
10/29/2014 10/29/2014 10/29/2014 10/30/2014 10/30/2014 10/31/2014 10/31/2014 10/31/2014 11/07/2014 11/12/2014 11/20/2014 11/21/2014 01/07/2015

7 Request for Issuance of Summons as to Ralph Bales, Ronald Fox, Fernando Fuster, Brad Livingston, Juan Lopez, Ralph Marez, Jr, Jimmy S Webb, Joni White, filed. (Attachments: # 1 Continuation Summons Ralph Bales, # 2 Continuation Summons Joni White, # 3 Continuation Summons Fernando Fuster, # 4 Continuation Summons Ralph Marez Jr, # 5 Continuation Summons Ronald Fox, # 6 Continuation Summons Jimmy Webb, # 7 Continuation Summons Juan Lopez)(Upton, Kenneth) (Entered: 10/24/2014)
8 Amended Request for Issuance of Summons as to Ralph Bales, filed.(Upton, Kenneth) (Entered: 10/24/2014)
9 Request for Issuance of Summons as to Bruce Armstrong, Kenneth Dean, Adam Gonzales, Rene Maldonado, filed. (Attachments: # 1 Continuation Summons Kenneth Dean, # 2 Continuation Summons Rene Maldonado, # 3 Continuation Summons Adam Gonzales)(Upton, Kenneth) (Entered: 10/24/2014)
Summons Issued as to Bruce Armstrong, Ralph Bales, Kenneth Dean, Ronald Fox, Fernando Fuster, Adam Gonzales, Brad Livingston, Juan Lopez, Rene Maldonado, Ralph Marez, Jr, Jimmy S Webb, Joni White. Issued summons returned to counsel for plaintiff by: First−class mail, filed.(jdav, 4) (Entered: 10/27/2014)
10 EXHIBITS re: 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Upton, Kenneth) (Entered: 10/29/2014)
11 EXHIBITS re: 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Upton, Kenneth) (Entered: 10/29/2014)
12 EXHIBITS re: 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Upton, Kenneth) (Entered: 10/29/2014)
14 ORDER granting 5 Motion for Christopher J. Kondon to Appear Pro Hac Vice.(Signed by Judge Gray H. Miller) (Attachments: # 1 Exhibit) Parties notified.(amwilliams, 4) (Entered: 10/31/2014)
16 ORDER granting 2 Motion for Paul Catillo to Appear Pro Hac Vice.(Signed by Judge Gray H. Miller) (Attachments: # 1 Exhibit) Parties notified.(amwilliams, 4) (Entered: 10/31/2014)
13 ORDER granting 3 Motion for Jael Humphrey−Skomer to Appear Pro Hac Vice.(Signed by Judge Gray H. Miller) (Attachments: # 1 Exhibit) Parties notified.(amwilliams, 4) (Entered: 10/31/2014)
15 ORDER granting 4 Motion for Christina N. Goodrich to Appear Pro Hac Vice.(Signed by Judge Gray H. Miller) (Attachments: # 1 Exhibit) Parties notified.(amwilliams, 4) (Entered: 10/31/2014)
17 ORDER granting 6 Motion for Saman M. Rejali to Appear Pro Hac Vice.(Signed by Judge Gray H. Miller) (Attachments: # 1 Exhibit) Parties notified.(amwilliams, 4) (Entered: 10/31/2014)
18 Request for Issuance of Summons as to Brian Blanchard, Prince Pickett, Leslie Walters, filed. (Attachments: # 1 Continuation Summons Leslie Walters, # 2 Continuation Summons Prince Pickett)(Goodrich, Christina) (Entered: 11/07/2014)
Summons Issued as to Brian Blanchard, Prince Pickett, Leslie Walters. Issued summons returned to counsel for plaintiff by: First−class mail, filed.(jdav, 4) (Entered: 11/12/2014)
19 Request for Issuance of Summons as to Kenneth Dean, filed.(Goodrich, Christina) (Entered: 11/20/2014)
Summons Issued as to Kenneth Dean. Issued summons returned to plaintiff by: First−class mail, filed.(jdav, 4) (Entered: 11/21/2014)
20 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D

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01/07/2015
01/07/2015
01/07/2015
01/07/2015
01/07/2015
01/07/2015
01/08/2015 01/08/2015 01/08/2015 01/08/2015 01/09/2015

Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
21 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
22 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice, Summons Issued/Not Issued by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
23 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
24 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
25 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
26 CERTIFICATE OF SERVICE of 4 MOTION for Christina N. Goodrich to Appear Pro Hac Vice, 10 Exhibits, 12 Exhibits, 1 Complaint, 3 MOTION for Jael Humphrey−Skomer to Appear Pro Hac Vice, 11 Exhibits, Summons Issued/Not Issued, 6 MOTION for Saman M. Rejali to Appear Pro Hac Vice, 2 MOTION for Paul D. Castillo to Appear Pro Hac Vice, 5 MOTION for Christopher J. Kondon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 01/07/2015)
27 WAIVER OF SERVICE Returned Executed as to Brian Blanchard served on 11/17/2014, answer due 1/16/2015, filed.(Goodrich, Christina) (Entered: 01/08/2015)
28 WAIVER OF SERVICE Returned Executed as to Ronald Fox served on 11/10/2014, answer due 1/9/2015, filed.(Goodrich, Christina) (Entered: 01/08/2015)
29 WAIVER OF SERVICE Returned Executed as to Brad Livingston served on 11/10/2014, answer due 1/9/2015, filed.(Goodrich, Christina) (Entered: 01/08/2015)
30 WAIVER OF SERVICE Returned Executed as to Prince Pickett served on 11/17/2014, answer due 1/16/2015, filed.(Goodrich, Christina) (Entered: 01/08/2015)
31 Joint MOTION to Transfer Case to Western District of Texas, Waco Division by Bruce Armstrong, Ralph Bales, Brian Blanchard, Kenneth Dean, Ronald Fox, Fernando Fuster, Adam Gonzales, Brad Livingston, Juan Lopez, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, Sigmund L Smith, Leslie Walters, Jimmy S Webb, Joni White, filed. Motion Docket Date 1/30/2015. (Attachments: # 1 Proposed

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01/09/2015 01/09/2015 01/09/2015
01/28/2015
01/29/2015 01/29/2015 02/02/2015 02/02/2015 02/03/2015 02/17/2015
02/26/2015 02/26/2015 02/26/2015
02/26/2015 02/27/2015 03/04/2015

Order)(Coogan, Kim) (Entered: 01/09/2015)
32 MOTION to Dismiss by Brad Livingston, filed. Motion Docket Date 1/30/2015. (Attachments: # 1 Proposed Order)(Coogan, Kim) (Entered: 01/09/2015)
33 ANSWER to Complaint with Jury Demand by Bruce Armstrong, Ralph Bales, Fernando Fuster, Joni White, filed.(Coogan, Kim) (Entered: 01/09/2015)
34 MOTION to Dismiss Under 12(b)(6) by Brian Blanchard, Kenneth Dean, Ronald Fox, Adam Gonzales, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, Jimmy S Webb, filed. Motion Docket Date 1/30/2015. (Attachments: # 1 Proposed Order)(Cobe, Christin) (Entered: 01/09/2015)
35 First AMENDED COMPLAINT with Jury Demand against Bruce Armstrong, Ralph Bales, Brian Blanchard, Kenneth Dean, Ronald Fox, Fernando Fuster, Adam Gonzales, Brad Livingston, Juan Lopez, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, Sigmund L Smith, Leslie Walters, Jimmy S Webb, Joni White, William Stephens, Lynne Sharp, Lorie Davis, Robert Eason filed by Joshua D Zollicoffer.(Goodrich, Christina) (Entered: 01/28/2015)
36 LETTER OF AGREEMENT re: Extension of Submission Date for Docket Entries 32 and 34 Until February 20, 2015. by Joshua D Zollicoffer, filed.(Castillo, Paul) (Entered: 01/29/2015)
37 RESPONSE in Opposition to 31 Joint MOTION to Transfer Case to Western District of Texas, Waco Division, filed by Joshua D Zollicoffer. (Attachments: # 1 Proposed Order)(Goodrich, Christina) (Entered: 01/29/2015)
38 Request for Issuance of Summons as to Robert Eason, filed.(Goodrich, Christina) (Entered: 02/02/2015)
39 Request for Issuance of Summons as to Lorie Davis, Lynne Sharp, William Stephens, filed. (Attachments: # 1 Continuation Summons Lynne Sharp, # 2 Continuation Summons William Stephens)(Goodrich, Christina) (Entered: 02/02/2015)
Summons Issued as to Lorie Davis, Robert Eason, Lynne Sharp, William Stephens. Issued summons returned to plaintiff by: First−class mail, filed.(jdav, 4) (Entered: 02/03/2015)
40 MOTION to Dismiss Under 12(b)(1) and (6) for Lack of Jurisdiction for Failure to State a Claim and Assertion of Qualified Immunity by Brad Livingston, filed. Motion Docket Date 3/10/2015. (Attachments: # 1 Proposed Order)(Coogan, Kim) (Entered: 02/17/2015)
41 NOTICE of Initial Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 02/26/2015)
42 NOTICE of Initial Disclosure by Brian Blanchard, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, filed. (Cobe, Christin) (Entered: 02/26/2015)
43 Unopposed MOTION for Christin Cobe Vasquez and/or Kim Coogan to Withdraw as Attorney by Kenneth Dean, filed. Motion Docket Date 3/19/2015. (Attachments: # 1 Proposed Order On Unopposed Motion to Withdraw Attorney Appearances on Behalf of Kenneth Dean)(Cobe, Christin) (Entered: 02/26/2015)
44 REPORT of Rule 26(f) Planning Meeting by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 02/26/2015)
45 NOTICE of Initial Disclosure by Joshua D Zollicoffer, filed. (Goodrich, Christina) (Entered: 02/27/2015)
46 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction( Motion Docket Date 3/25/2015.) by Joshua D Zollicoffer, filed. (Attachments: # 1 Appendix of Unpublished Cases, # 2 Affidavit of Plaintiff Joshua D. Zollicoffer a/k/a Passion Star (redacted), # 3 Exhibit A−I to Affidavit of Plaintiff Joshua D. Zollicoffer a/k/a Passion Star (redacted), # 4 Exhibit J−M to Affidavit of Plaintiff Joshua D. Zollicoffer a/k/a Passion Star (redacted), # 5 Affidavit of Eldon Vail, # 6 Exhibit 1−2 to Affidavit of Eldon Vail, # 7 Affidavit of Valerie Jenness, Ph.D., # 8 Exhibit 1−2 to Affidavit of Valerie Jenness, Ph.D., # 9 Affidavit of Jael Humphrey, # 10 Exhibit 1−7

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03/04/2015 03/04/2015 03/04/2015 03/04/2015
03/05/2015 03/09/2015 03/12/2015 03/17/2015 03/31/2015
03/31/2015
04/02/2015 04/03/2015 04/20/2015

to Affidavit of Jael Humphrey, # 11 Exhibit 8−10 to Affidavit of Jael Humphrey, # 12 Proposed Order)(Goodrich, Christina) (Entered: 03/04/2015)
47 Unopposed MOTION to Seal Docket Entries 46−2, 46−3, & 46−4 by Joshua D Zollicoffer, filed. Motion Docket Date 3/25/2015. (Attachments: # 1 Proposed Order)(Goodrich, Christina) (Entered: 03/04/2015)
***Set/Reset Deadlines/Hearings: Telephone Conference set for 3/4/2015 at 03:00 PM by telephone before Judge Gray H. Miller (rkonieczny, 4) (Entered: 03/04/2015)
48 ORDER GRANTING 47 Unopposed MOTION to Seal Docket Entries 46−2, 46−3, & 46−4 (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4) (Entered: 03/04/2015)
49 Minute Entry for proceedings held before Judge Gray H. Miller. TELEPHONE STATUS CONFERENCE held on 3/4/2015 re 46 Motion for Temporary Restraining Order and Motion for Preliminary Injunction. Defendants will file response by 3/25/2015 then a hearng will be set if no agreed resolution has been made. Appearances: Kim J Coogan, Christin Audrey Cobe, Christina Noel Goodrich, Paul David Castillo, Jael Humphrey−Skomer, filed.(rkonieczny, 4) (Entered: 03/04/2015)
50 LETTER OF AGREEMENT re: Extension of Submission Date for Docket Entry 40 Until March 31, 2015 by Joshua D Zollicoffer, filed.(Castillo, Paul) (Entered: 03/05/2015)
51 NOTICE of First Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 03/09/2015)
52 Joint MOTION to Transfer Case to Western District of Texas, Waco Division by Bruce Armstrong, Ralph Bales, Brian Blanchard, Fernando Fuster, Brad Livingston, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, Joni White, filed. Motion Docket Date 4/2/2015. (Attachments: # 1 Proposed Order)(Coogan, Kim) (Entered: 03/12/2015)
53 ANSWER to 35 Amended Complaint/Counterclaim/Crossclaim etc., with Jury Demand by Brian Blanchard, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, filed.(Cobe, Christin) (Entered: 03/17/2015)
54 RESPONSE in Opposition to 40 MOTION to Dismiss Under 12(b)(1) and (6) for Lack of Jurisdiction for Failure to State a Claim and Assertion of Qualified Immunity, filed by Joshua D Zollicoffer. (Attachments: # 1 Appendix of Unpublished Authority (Exs. 1−4), # 2 Appendix of Unpublished Authority (Exs. 5−7), # 3 Appendix of Unpublished Authority (Exs. 8−16), # 4 Appendix of Unpublished Authority (Exs. 17−22 (partial)), # 5 Appendix of Unpublished Authority (Exs. 22 (cont'd)))(Goodrich, Christina) (Entered: 03/31/2015)
55 NOTICE of Lodging of [Proposed] Order Denying Defendant Livingston's Motion to Dismiss re: 54 Response in Opposition to Motion,, 40 MOTION to Dismiss Under 12(b)(1) and (6) for Lack of Jurisdiction for Failure to State a Claim and Assertion of Qualified Immunity by Joshua D Zollicoffer, filed. (Attachments: # 1 Proposed Order Denying Defendant Livingston's Motion to Dismiss)(Goodrich, Christina) (Entered: 03/31/2015)
56 RESPONSE in Opposition to 52 Joint MOTION to Transfer Case to Western District of Texas, Waco Division, filed by Joshua D Zollicoffer. (Attachments: # 1 Proposed Order Denying Amended Motion to Transfer)(Goodrich, Christina) (Entered: 04/02/2015)
57 NOTICE of Lodging of Appendix of Authorities to Plaintiff's Response in Opposition to Defendants' Amended Motion to Transfer re: 56 Response in Opposition to Motion, 52 Joint MOTION to Transfer Case to Western District of Texas, Waco Division by Joshua D Zollicoffer, filed. (Attachments: # 1 Appendix and Exhibits)(Goodrich, Christina) (Entered: 04/03/2015)
58 ANSWER to 35 Amended Complaint/Counterclaim/Crossclaim etc., with Jury Demand by James Sigmund, Leslie Harman, filed.(Cobe, Christin) (Entered: 04/20/2015)

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04/27/2015
04/27/2015
04/27/2015
04/27/2015
05/08/2015 05/18/2015 05/18/2015 06/09/2015 06/12/2015 06/15/2015 06/16/2015 06/18/2015 06/18/2015 06/19/2015 07/17/2015
07/20/2015 08/04/2015

59 ORDER DENYING 52 Joint MOTION to Transfer Case to Western District of Texas, Waco Division, 31 Joint MOTION to Transfer Case to Western District of Texas, Waco Division (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4) (Entered: 04/27/2015)
60 MOTION to Dismiss Under 12(b)1 and (6) for Lack of Jurisdiction, For Failure to State a Claim and Assertion of Qualified Immunity by Lorie Davis, Robert Eason, Lynne Sharp, William Stephens, filed. Motion Docket Date 5/18/2015. (Attachments: # 1 Proposed Order)(Coogan, Kim) (Entered: 04/27/2015)
61 ORDER GRANTING 43 Unopposed MOTION for Christin Cobe Vasquez and/or Kim Coogan to Withdraw as Attorney. Attorney Christin Audrey Cobe terminated.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4) (Entered: 04/27/2015)
62 NOTICE of Reassignment to Judge Alfred H. Bennett, pursuant to Special Order No. 2015−2. Deadlines in scheduling orders remain in effect. All court settings are vacated. Judge Gray H. Miller no longer assigned to the case. Parties notified, filed. (dkellyadi, 4) (Entered: 04/27/2015)
63 ANSWER to 35 Amended Complaint/Counterclaim/Crossclaim etc., with Jury Demand by Bruce Armstrong, Ralph Bales, Fernando Fuster, Joni White, filed.(Coogan, Kim) (Entered: 05/08/2015)
64 LETTER OF AGREEMENT re: Extension of Submission Date for Docket Entry 60 Until June 17, 2015 by Joshua D Zollicoffer, filed.(Castillo, Paul) (Entered: 05/18/2015)
Plaintiff's response to Motion to Dismiss extended. Response due by 6/17/2015. (ledwards, 4) (Entered: 05/18/2015)
65 MOTION for Demoya R. Gordon to Appear Pro Hac Vice by Joshua D Zollicoffer, filed. Motion Docket Date 6/30/2015. (Upton, Kenneth) (Entered: 06/09/2015)
66 MOTION for Jael Humphrey−Skomer to Withdraw as Attorney by Joshua D Zollicoffer, filed. Motion Docket Date 7/6/2015. (Attachments: # 1 Proposed Order Proposed Order to Withdraw)(Humphrey−Skomer, Jael) (Entered: 06/12/2015)
67 STATEMENT Regarding Safekeeping Status of Joshua Zollicoffer TDCJ # 1138161 by Bruce Armstrong, Ralph Bales, Fernando Fuster, Joni White, filed.(Coogan, Kim) (Entered: 06/15/2015)
68 STIPULATION of Dismissal as to Defendants William Stephens, Lynne Sharp, Robert Eason, and Lorie Davis Only by Joshua D Zollicoffer, filed.(Castillo, Paul) (Entered: 06/16/2015)
69 Request for Issuance of Summons as to Kenneth Dean, filed.(Goodrich, Christina) (Entered: 06/18/2015)
70 ORDER granting 66 Motion to Withdraw as Attorney. Attorney Jael Humphrey−Skomer terminated. (Signed by Judge Alfred H. Bennett) Parties notified. (wbostic, 4) (Entered: 06/18/2015)
Summons Issued as to Kenneth Dean. Issued summons returned to plaintiff by: First−class mail, filed.(jdav, 4) (Entered: 06/19/2015)
71 CERTIFICATE OF SERVICE of 35 Amended Complaint/Counterclaim/Crossclaim etc., 44 Report of Rule 26(f) Planning Meeting, 59 Order, 53 Answer to Amended Complaint, Summons Issued/Not Issued, 1 Complaint, 54 Response in Opposition to Motion,, 67 Statement, 58 Answer to Amended Complaint, 32 MOTION to Dismiss , 68 Stipulation of Dismissal by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 07/17/2015)
72 ANSWER to 35 Amended Complaint/Counterclaim/Crossclaim etc., with Jury Demand by Kenneth Dean, filed.(Cobe Vasquez, Christin) (Entered: 07/20/2015)
73 CERTIFICATE OF SERVICE by Joshua D Zollicoffer, filed.(Goodrich, Christina) (Entered: 08/04/2015)

Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 11 of 13

08/18/2015 09/10/2015 09/15/2015
09/22/2015
03/14/2016 06/15/2016 06/17/2016
07/27/2016 07/28/2016 08/05/2016 08/10/2016 08/11/2016 09/22/2016 10/07/2016

74 ORDER granting 65 Motion for Demoya Gordon to Appear Pro Hac Vice. (Signed by Judge Alfred H. Bennett) Parties notified. (wbostic, 4) (Entered: 08/18/2015)
75 NOTICE of Setting. Parties notified. Scheduling Conference set for 9/15/2015 at 10:30 AM in Courtroom 8B before Judge Alfred H. Bennett, filed. (ledwards, 4) (Entered: 09/10/2015)
Minute Entry for proceedings held before Judge Alfred H. Bennett. STATUS CONFERENCE held on 9/15/2015. Motion to Dismiss(doc # 40 ),Under Advisement. Scheduling dates to be agreed upon by counsel and submitted; Scheduling Order to follow. Appearances: Kim J Coogan, Christin Cobe Vasquez, Demoya R. Gordon, Paul David Castillo.(Court Reporter: L. Wells), filed.(ledwards, 4) (Entered: 09/15/2015)
76 SCHEDULING ORDER: Amended Pleadings due by 1/4/2016. Joinder of Parties due by 1/4/2016 Pltf Expert Report due by 6/17/2016. Deft Expert Report due by 7/18/2016. Discovery due by 10/17/2016. Dispositive Motion Filing due by 11/14/2016. Plaintiff must file Joint Pretrial Order by 1/2/2017. Defendant must supply plaintiff with its Pretrial Order by 12/26/2016. Docket Call set for 1/6/2017 at 01:30 PM in Courtroom 8B before Judge Alfred H. Bennett. Trial Term is set for two weeks beginning 1/9/2017.(Signed by Judge Alfred H. Bennett) Parties notified.(ledwardsadi, 4) (Entered: 09/22/2015)
77 ORDER on Defendant Brad Livingston's Motion to Dismiss (Doc. # 40) (Signed by Judge Alfred H. Bennett) Parties notified.(ledwards, 4) (Entered: 03/14/2016)
78 Unopposed MOTION to Amend 76 Scheduling Order,, by Joshua D Zollicoffer, filed. Motion Docket Date 7/6/2016. (Attachments: # 1 Proposed Amended Scheduling Order)(Castillo, Paul) (Entered: 06/15/2016)
79 AMENDED CHEDULING ORDER Granting 78 Unopposed MOTION to Amend 76 Scheduling Order,. Jury. ( Pltf Expert Report due by 8/16/2016., Deft Expert Report due by 9/16/2016., Discovery due by 2/28/2017., Dispositive Motion Filing due by 3/31/2017., Non−Dispositive Motion Filing due by 3/31/2017., Joint Pretrial Order due by 5/8/2017., Docket Call set for 5/19/2017 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett, Jury Trial set for 5/22/2017 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett)(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 06/17/2016)
80 NOTICE of Third Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 07/27/2016)
81 NOTICE of Fourth Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 07/28/2016)
82 Joint MOTION for Extension of Time to Designate Expert Witnesses by Joshua D Zollicoffer, filed. Motion Docket Date 8/26/2016. (Attachments: # 1 Proposed Order)(Gordon, Demoya) (Entered: 08/05/2016)
83 ORDER granting 82 Joint MOTION for Extension of Time to Designate Expert Witnesses ( Pltf Expert Report due by 10/17/2016., Deft Expert Report due by 11/16/2016.)(Signed by Judge Alfred H Bennett) Parties notified.(gclair, 4) (Entered: 08/11/2016)
84 NOTICE of Fifth Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 08/11/2016)
85 ORDER granting 68 Stipulation of Dismissal as to Defendants William Stephens, Lynne Sharp, Robert Eason, and Lorie Davis. (Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 09/22/2016)
86 NOTICE of Sixth Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 10/07/2016)

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10/28/2016 11/08/2016 11/16/2016
11/16/2016 02/22/2017 03/01/2017 05/19/2017 05/22/2017 07/11/2017 07/11/2017
08/02/2017 09/05/2017 09/08/2017 10/03/2017
10/26/2017
10/26/2017 11/30/2017

87 MOTION to Quash Deposition by Brad Livingston, filed. Motion Docket Date 11/18/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Coogan, Kim) (Entered: 10/28/2016)
88 NOTICE of Seventh Supplemental Disclosure by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. (Coogan, Kim) (Entered: 11/08/2016)
89 DESIGNATION OF EXPERT WITNESS LIST by Bruce Armstrong, Ralph Bales, Brian Blanchard, Kenneth Dean, Ronald Fox, Fernando Fuster, Adam Gonzales, Juan Lopez, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, Sigmund L Smith, Leslie Walters, Jimmy S Webb, Joni White, filed.(Coogan, Kim) (Entered: 11/16/2016)
90 NOTICE Regarding Deposition of Defendant Brad Livingston by Joshua D Zollicoffer, filed. (Gordon, Demoya) (Entered: 11/16/2016)
91 Joint MOTION to Stay the Proceedings Pending Finalization of a Settlement Agreement by Joshua D Zollicoffer, filed. Motion Docket Date 3/15/2017. (Attachments: # 1 Proposed Order)(Gordon, Demoya) (Entered: 02/22/2017)
92 ORDER granting 91 Motion to Stay. The proceedings in this matter are stayed until June 1, 2017, pending finalization of the parties' settlement agreement. (Signed by Judge Alfred H Bennett) Parties notified. (wbostic, 4) (Entered: 03/02/2017)
93 Joint MOTION for Extension of Time re Stay of Proceedings Pending Finalization of a Settlement Agreement by Joshua D Zollicoffer, filed. Motion Docket Date 6/9/2017. (Attachments: # 1 Proposed Order)(Gordon, Demoya) (Entered: 05/19/2017)
94 ORDER granting 93 Motion for Extension of Stay Pending Finalization of Settlement Agreement. Proceedings are stayed until 7/17/2017. (Signed by Judge Alfred H Bennett) Parties notified.(gclair, 4) (Entered: 05/23/2017)
95 NOTICE of attorney substitution by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White. Attorney Seth Byron Dennis added, filed. (Dennis, Seth) (Entered: 07/11/2017)
96 Joint MOTION to Stay of the Proceeding Pending Finalization of a Settlement Package by Bruce Armstrong, Ralph Bales, Fernando Fuster, Brad Livingston, Joni White, filed. Motion Docket Date 8/1/2017. (Attachments: # 1 Proposed Order)(Dennis, Seth) (Entered: 07/11/2017)
97 NOTICE of Setting. Parties notified. Status Conference set for 8/25/2017 at 11:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 08/02/2017)
98 NOTICE of Setting. Parties notified. Status Conference set for 2/2/2018 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 09/05/2017)
99 NOTICE of Setting. Parties notified. Status Conference set for 10/26/2017 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 09/08/2017)
100 ORDER granting 96 Second Motion to Stay of the Proceeding Pending Finalization of a Settlement Package. The stay is extended another ninety days until October 31, 2017. (Signed by Judge Alfred H Bennett) Parties notified.(rosaldana, 4) (Entered: 10/04/2017)
Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 10/26/2017. Status Conference set for November 30, 2017 at 1:30 PM Appearances: Seth Byron Dennis, Christin Cobe Vasquez, Demoya Renee Gordon.(Court Reporter: H. Alcaraz), filed.(ledwards, 4) (Entered: 10/26/2017)
101 NOTICE of Setting. Parties notified. Status Conference set for 11/30/2017 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 10/26/2017)
Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 11/30/2017. Policy changes have been signed, defense

Case: 4:14-cv-3037 As of: 06/11/2018 01:58 PM CDT 13 of 13

01/05/2018 02/16/2018 02/26/2018 04/02/2018

counsel to email to plaintiff for review. Status Conference set for 1/5/2018 at 11:00 AM in Courtroom 8C before Judge Alfred H Bennett, court request CFO attend. Appearances: Seth Byron Dennis, Christin Cobe Vasquez, Demoya Renee Gordon.(Court Reporter: L. Wells), filed.(ledwards, 4) (Entered: 11/30/2017)
Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 1/5/2018. Parties anticipate policy changes and a final settlement to be entered in approximately thirty (30) days. Court orders a Status Conference set for 2/16/2018 at 11:00 AM in Courtroom 8C before Judge Alfred H Bennett Appearances: Seth Byron Dennis, Demoya Renee Gordon, Christopher J. Kondon.(Court Reporter: B. Slavin), filed.(ledwards, 4) (Entered: 01/05/2018)
Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 2/16/2018. Policy issues resolved, agreed payments were not made due to technical issues. Settlement papers to be filed next week. Appearances: Seth Byron Dennis, Demoya Renee Gordon, Christina Noel Goodrich.(Court Reporter: F. Warner), filed.(ledwards, 4) (Entered: 02/20/2018)
102 STIPULATION of Dismissal with Prejudice by Bruce Armstrong, Ralph Bales, Brian Blanchard, Kenneth Dean, Ronald Fox, Fernando Fuster, Adam Gonzales, Leslie Harman, Brad Livingston, Rene Maldonado, Ralph Marez, Jr, Prince Pickett, James Sigmund, Jimmy S Webb, Joni White, filed. (Attachments: # 1 Proposed Order)(Dennis, Seth) (Entered: 02/26/2018)
103 ORDER OF DISMISSAL. Case terminated on 4/2/18 (Signed by Judge Alfred H Bennett) Parties notified.(rguerrero, 4) (Entered: 04/02/2018)

 
 Case 4:14-cv-03037 Document 1 Filed in TXSD on 10/23/14 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

JOSHUA D. ZOLLICOFFER a/k/a PASSION STAR, Plaintiff,
versus
BRAD LIVINGSTON, personally and in his official capacity as Executive Director of the Texas Department of Criminal Justice (“TDCJ”);
RALPH BALES, personally and in his official capacity as PREA Ombudsman;
JONI WHITE, personally and in her official capacity as Assistant Director of TDCJ’s Classification and Records Department;
BRUCE ARMSTRONG, personally and in his official capacity as Assistant Regional Director in the State Classification Committee;
FERNANDO FUSTER, personally and in his official capacity as Assistant Regional Director in the State Classification Committee;
KENNETH DEAN, in his personal capacity; BRIAN BLANCHARD, in his personal capacity; RENE MALDONADO, in his personal capacity; RALPH MAREZ, JR., in his personal capacity; SIGMUND L. SMITH, in his personal capacity; PRINCE PICKETT, in his personal capacity; LESLIE WALTERS, in her personal capacity; RONALD FOX, personally and in his official
capacity as Senior Warden at the Robertson Unit; ADAM GONZALES, personally and in his official capacity as Assistant Warden at the Robertson Unit; JIMMY S. WEBB, personally and in his official capacity as Assistant Warden at the Robertson Unit; and JUAN LOPEZ, personally and in his official capacity as Sergeant at the Robertson Unit,
Defendants.

Case No. 4:14-cv-03037
Jury Trial Demanded
PLAINTIFF’S COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, DECLARATORY
JUDGMENT, AND DAMAGES

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1. Plaintiff Joshua Zollicoffer a/k/a Passion Star (“Ms. Star” or “Plaintiff”)1 is a thirty-year-old transgender woman in the custody of the Texas Department of Criminal Justice (“TDCJ”) who has been brutally attacked by male inmates and continues to be tormented with escalating threats of assault, rape, and murder. Ms. Star has repeatedly begged TDCJ officials to protect her.
2. Deliberately indifferent to these harms, the defendants have repeatedly refused to place Ms. Star in a secure housing placement, known as “safekeeping”2 or take other reasonable steps to reduce the acts and threats of harm to her. Instead, the defendants have forced Ms. Star to remain in the general population near her aggressors where she has faced documented serious injuries and escalating risks of additional serious harm.
3. Further, despite knowing that TDCJ prisons have exceptionally high rates of inmate-on-inmate assault, particularly against lesbian, gay, bisexual, transgender (“LGBT”), and gender-nonconforming inmates, TDCJ officials failed to adopt, adhere to, train and/or supervise officers on policies and procedures that could have prevented the harm to Ms. Star.
4. By this action, Ms. Star seeks preliminary and permanent injunctive relief to stop the defendants’ ongoing constitutional violations, along with declaratory relief and damages.
I. JURISDICTION AND VENUE 5. Plaintiff brings this action seeking preliminary and permanent injunctive relief, declaratory relief, and damages pursuant to 42 U.S.C. §§ 1983 and 1988 to redress the
1 Although plaintiff’s legal name is Joshua D. Zollicoffer, she is known by and uses the name Passion Star in accordance with her female gender identity. Accordingly, this complaint refers to plaintiff as Ms. Star and uses female pronouns to refer to her. 2 Safekeeping status is a housing status assigned to people in custody who need protection from other inmates in the general population, and whose need for protection could be met by housing them separately. In addition, safekeeping offenders receive their recreation time and meals apart from the general population.
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deprivation under color of state law of rights secured by the United States Constitution. 6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and
jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201. 7. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) because a
substantial part of the relevant events occurred within the district, and pursuant to 28 U.S.C. § 1391(b)(2) because, upon information and belief, one or more defendants reside in and have offices in this district and all defendants are residents of Texas.
8. This Court has personal jurisdiction over each and every defendant because, upon information and belief, all defendants are residents of Texas and were employed in Texas acting under color of state law during all relevant times.
II. THE PARTIES 9. PLAINTIFF PASSION STAR, a citizen of Texas, is a black, transgender woman in the custody of TDCJ. From approximately 2011 to 2013, Ms. Star was housed in the Hughes Unit in Gatesville, Texas (“Hughes Unit”). On or around December 6, 2013, she was moved to the Robertson Unit in Abilene, Texas (“Robertson Unit”), where she is currently housed. 10. DEFENDANT BRAD LIVINGSTON (“Livingston”) is the Executive Director of TDCJ. As such, Defendant Livingston is the commanding officer of all TDCJ correctional officers, guards, and TDCJ employees and contractors, and is responsible for their training, supervision, and conduct. He has ultimate responsibility within TDCJ for overseeing the day-today operation of state prison facilities, including the Hughes Unit and Robertson Unit and is responsible for ensuring that people incarcerated in TDCJ facilities are protected from sexual assault and other violence and that correctional officers adhere to federal and state law, as well as
3

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official TDCJ policy. Defendant Livingston maintains an office in Walker County, Texas and, upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
11. DEFENDANT RALPH BALES (“Bales”) is the Prison Rape Elimination Act (“PREA”) Ombudsman appointed by the Texas Board of Criminal Justice to respond to eliminate the occurrence of sexual assault in correctional facilities. The primary responsibilities of the PREA Ombudsman are to monitor department policies for the prevention of sexual assault in correctional facilities; oversee the administrative investigation of inmate complaints of sexual abuse; ensure the impartial resolution of inmate complaints of sexual assaults; and collect statistics regarding all allegations of sexual abuse from correctional facilities. Defendant Bales maintains an office in Walker County, Texas and, upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
12. DEFENDANT JONI WHITE (“White”) is Assistant Director of TDCJ’s Classification and Records Department. She is responsible for supervising the management of the State Classification Committee (“SCC”), Classification and Intake Operations, and the Classification Records Office. She is also responsible for the overall management and application of all TDCJ classification plans, policies, and procedures. Defendant White maintains an office in Walker County, Texas and, upon information and belief, resides in Walker County, Texas. She is sued in her official and personal capacities.
13. DEFENDANT BRUCE ARMSTRONG (“Armstrong”) is an Assistant Regional Director in the SCC. As such, he is responsible for final decisions with regards to agency-wide issues and unit classification committee (“UCC”) recommendations, including final decisions regarding safekeeping. Defendant Armstrong maintains an office in Walker County, Texas and,
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upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
14. DEFENDANT FERNANDO FUSTER (“Fuster”) is an Assistant Regional Director in the SCC. As such, he is responsible for final decisions with regards to agency-wide issues and UCC recommendations, including final decisions regarding safekeeping. Defendant Fuster maintains an office in Walker County, Texas and, upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
15. DEFENDANT KENNETH DEAN (“Dean”) was a Senior Warden at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
16. DEFENDANT BRIAN BLANCHARD (“Blanchard”) was an Assistant Warden at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
17. DEFENDANT RENE MALDONADO (“Maldonado”) was an Assistant Warden at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
18. DEFENDANT RALPH MAREZ, JR. (“Marez”) was a Major at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
19. DEFENDANT SIGMUND L. SMITH (“Smith”) is a Captain at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
20. DEFENDANT PRINCE PICKETT (“Pickett”) is a Sergeant supervising the 8
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Case 4:14-cv-03037 Document 1 Filed in TXSD on 10/23/14 Page 6 of 45
Building at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
21. DEFENDANT LESLIE WALTERS (“Walters”) was a Classification Secretary at the Hughes Unit during all relevant times and, upon information and belief, is a resident of Texas. She is sued in her personal capacity.
22. DEFENDANT RONALD FOX (“Fox”) is a Senior Warden at the Robertson Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his official and personal capacities.
23. DEFENDANT ADAM GONZALES (“Gonzales”) is an Assistant Warden at the Robertson Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his official and personal capacities.
24. DEFENDANT JIMMY S. WEBB (“Webb”) is an Assistant Warden at the Robertson Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his official and personal capacities.
25. DEFENDANT JUAN LOPEZ (“Lopez”) is a Sergeant at the Robertson Unit during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his official and personal capacities.
26. At all relevant times, Defendants Livingston, Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez (collectively “Defendants”) acted under color of state law.
III. FACTUAL BACKGROUND 27. Ms. Star is a transgender woman, meaning that she was assigned the sex of male
6

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at birth, but identifies as a woman.3 She did not tell her family that she is a transgender woman until recently because she was afraid of their rejection.
28. On or around December 3, 2002, a week after her nineteenth birthday, Ms. Star pled guilty to a felony for which she was sentenced to twenty years in prison.4
29. Since approximately 2003, Ms. Star has been in the custody of the TDCJ. She has been housed in at least six male TDCJ facilities. In every facility, male inmates have identified her as feminine and demanded that she perform sexual acts for them or pay them for protection against such demands and the repercussions of not acceding to such demands.
Incidents Prior to Ms. Star’s Placement in the Hughes and Robertson Units that Put Defendants on Notice of Her Vulnerability to Sexual Assault
30. From 2003 to 2011, while in TDCJ custody, Ms. Star was raped, sexually assaulted, forced into coercive sexual relationships, and threatened with violence by other TDCJ inmates. Despite Ms. Star’s numerous complaints to TDCJ officials, insufficient action was taken to protect her from the substantial risk of further serious harm.
31. For example, while housed in the Telford Unit in New Boston, Texas, a gang member known as D.D.5 threatened to hurt Ms. Star if she did not perform sexual acts for him or pay him with commissary items. Ms. Star complained to prison officials about threats from D.D. and other inmates, and told them that she was gay with a female alias and feared for her safety.
3 At earlier periods, when Ms. Star was less public about her transgender identity, she sometimes referred to herself in grievances and other written complaints as a gay man or a gay man with a female alias. While gender identity and sexual orientation are not the same, either identity places Ms. Star in a category of inmates who are recognized as particularly vulnerable. 4 The conviction, which was for aggravated kidnapping, arose from allegations that, on or around August 16, 2002, Ms. Star’s boyfriend at the time refused to return a used Chevrolet that he was test driving to the Chevrolet dealership. Instead, to Ms. Star’s surprise, he drove for nearly two hours with the salesman trapped in the passenger seat and Ms. Star in the back seat. 5 In an attempt to avoid further retaliation and violence from inmates who have already threatened and/or harmed her, Plaintiff has used initials to identify these inmates.
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Prison officials did nothing to reduce the threats of harm to Ms. Star, and disciplined Ms. Star for declining to leave her cell because she feared serious harm from D.D.
32. In an effort to gain protection from D.D. and other inmates, Ms. Star submitted to a sexual relationship with a gang member known as M.M. When Ms. Star attempted to end that relationship, M.M. choked her until she agreed to remain in a sexual relationship with him.
33. In or about 2006, TDCJ transferred Ms. Star to the Allred Unit in Iowa Park, Texas. Gang members there, including member P.X., identified Ms. Star as feminine and threatened to harm her if she did not perform sexual acts for the gang. Ms. Star informed correctional officers that she had received repeated threats, that she was gay, and that she feared for her life. She asked them to place her in safekeeping, but her requests were denied. Ms. Wright, a TDCJ employee in the Allred Unit, told her, “You’re black; you’ll be alright.”
34. In or about March 2007, TDCJ officials assigned Ms. Star to share a cell with an inmate called C.X., a member of another gang, who began to harass and sexually proposition her. Ms. Star informed a guard that she felt unsafe around her cellmate, but the guard refused to move Ms. Star to another cell or to remove her cellmate from the cell.
35. Approximately two days later, on March 29, 2007, C.X. threatened Ms. Star with a knife, held her down, and raped her. After Ms. Star reported the rape to a guard, begging him to help her, C.X. threw a fan at Ms. Star, cutting her head.
36. Linda Remmert, a nurse at the Correctional Managed Care Clinic, treated Ms. Star on March 29, 2007, the night of the rape. The nurse noted “dried secretions to anal area” and an abrasion at the top of Ms. Star’s head. The nurse examining Ms. Star the next day noted “due to assault on 03/29/07 inmate feels unsafe around others.”
37. After the rape, TDCJ officials moved Ms. Star into solitary confinement for
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approximately two weeks, leaving her alone, frightened, and emotionally distressed. She wrote letters asking that C.X. be prosecuted for the rape, but was never informed whether or not he was punished.
38. Approximately two weeks later, despite her request to be placed in safekeeping, TDCJ officials transferred Ms. Star into the general population of a new facility in the Smith Unit in Lamesa, Texas. Inmates there again threatened Ms. Star with violence if she did not perform sex acts or pay for protection. Her cellmate, O.R., threatened to rape Ms. Star and forced her to watch him masturbate. Another inmate, P.O.X., demanded that Ms. Star perform sex acts for him if she did not want to be hurt. Ms. Star reported the threats to TDCJ staff verbally and in writing, but officials refused to take the actions necessary to help her.
39. Correctional officers responded to Ms. Star’s requests for protection by telling her “you can’t rape someone who’s gay,” telling her she was having the time of her life, frequently calling her “faggot,” and suggesting she was enjoying the attention.
40. In 2008, Ms. Star was transferred into the general population on the Coffield Unit in Tennessee Colony, TX, where she was again threatened with sexual assault by an inmate named T.K. In part because he threatened her and in part because he offered to protect her from other predatory men, Ms. Star entered a coerced sexual relationship with T.K. When Ms. Star tried to end the relationship, T.K. punched her on the left side of her jaw, breaking one of her teeth and causing it to puncture her lip. In fear for her well-being, Ms. Star returned to the coerced sexual relationship with T.K.
Defendants’ Failures to Protect Ms. Star From Assaults and Threats Directed at Ms. Star by Other Inmates in the Hughes Unit Between 2011 and November 15, 2013
41. In approximately July 2011, TDCJ officials transferred Ms. Star to the Hughes Unit, where she experienced more threats and attempts to sexually exploit her. Ms. Star lived in
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constant fear that she would be raped again or seriously harmed. 42. Ms. Star was threatened by various inmates associated with the Crips gang. One
member, known as T.X., called her “faggot” and regularly threatened to assault her. On December 25, 2011, T.X. attacked Ms. Star, punching her in the head, face, and torso. Ms. Star reported the threats and the assault to TDCJ officials verbally and in writing.
43. On February 3, 2012, Ms. Star submitted a grievance in which she described threats she was receiving from gang members and requested to be placed in safekeeping; Ms. Star explained that she is gay, not affiliated with a gang, and did not feel safe. On February 8, 2012, Defendant Blanchard denied the grievance, writing, “No action taken due to lack of evidence. No further action will be taken at this time.”
44. Upon information and belief, Defendant Blanchard did not investigate Ms. Star’s claims prior to denying her grievance, despite his obligation to do so, and despite the fact that Ms. Star had a documented history of being raped and threatened with violence.
45. Ms. Star requested in writing approximately five between December 2012 and May 2013 that she be transferred to a dormitory. Upon information and belief, dormitories are safer than the cell blocks because they are patrolled more frequently by TDCJ staff and have more security cameras than cell blocks. Ms. Star’s requests were denied, despite her documented history of sexual abuse, violence, threats, and her vulnerable status. Ms. Star complained to Defendant Marez and to the grievance committee about the denial of her requests to be moved to dormitories and the threats to her safety.
46. In or around March 2012, Bloods gang members, including E.H., demanded that Ms. Star pay for their protection or “ride,” meaning perform sexual acts for them. In or around March 2013, Ms. Star also complained about threats she was receiving from R.B., who was
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incarcerated on the unit. In or around 2013, a Bloods gang member known as A.X. began writing sexually explicit letters to Ms. Star, demanding that she perform sexual acts for him in return for his protection. Another Blood, known as C.Y.X., made similar demands of Ms. Star.
47. Ms. Star informed TDCJ officials of the threats and demands, including Officer Thompson on or around April 19, 2013, and requested to be moved out of the general population and placed in safekeeping. TDCJ staff did not take reasonable steps to protect her and instead placed Ms. Star further at risk for assault. For example, Lieutenant Aragon called Ms. Star a “snitch” and a “punk” in front of other inmates during lineup, and Sergeant Lopez told Ms. Star in front of other inmates that she should “stop doing gay shit” or fight. Officer Thompson and other officers routinely pretended to grab Ms. Star’s buttocks, which they referred to as the “grab-ass” game.
48. On May 12, 2013, C.Y.X. and A.X. jointly confronted Ms. Star while she was at church and accused her of “snitching” on them. C.Y.X. said that a correctional officer had informed him that Ms. Star had reported that he was a gang member, and threatened to sneak into her pod and assault her any chance that he got. A.X. punched Ms. Star on the right side of her jaw, causing swelling and pain to her jaw and face.
49. Ms. Star went to the infirmary after the assault, and reported the attack and the threats to TDCJ officials verbally and in writing.
50. Defendant Blanchard, who had reviewed previous requests for protection from Ms. Star, denied her grievance on May 20, 2013, using formulaic language: “[T]here was no evidence or witnesses presented to substantiate your claims. No further action is warranted at this time.” Defendant Blanchard failed to actively investigate Ms. Star’s complaints and was deliberately indifferent to her obvious vulnerability based on her gender identity, perceived
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sexual orientation, history of victimization, and the physical evidence of the assault by A.X. 51. In October 2013, an inmate known as C.F. threatened to assault Ms. Star if she
did not perform sexual acts for him. When she refused, he attacked her on October 2, 2013 in the hallway by the dining hall, cutting her lip and her left hand, causing swelling and bruising on the left side of her face and jaw line and a knot on the left side of her head.
52. Ms. Star filed a grievance regarding the assault and threats from C.F. On October 22, 2013, Defendant Blanchard responded that “evidence was insufficient” and again decided that no action was warranted to protect Ms. Star.
53. On October 17, 2013, in desperation, Ms. Star wrote a letter to Defendant Dean, the Senior Warden at Hughes, explaining that she feared violence because of her sexual orientation and requesting to meet with him to discuss the possibility of being placed in safekeeping. He did not meet with her.
54. Ms. Star continued to receive threats and unwanted sexual advances from inmates in the general population at the Hughes Unit. For example, in 2013, J.T., a member of the Crips gang, sexually propositioned Ms. Star whenever he saw her.
55. On November 4, 2013, Ms. Star attended a meeting with the Unit Classification Committee (“UCC”) headed by Defendant Marez. She told Defendant Marez and the other members of the UCC that she was gay with a female alias, that she had been raped by inmates in the past, and that she had been repeatedly threatened with sexual and other violence. She explained that she feared for her life and requested to be reassigned to safekeeping and protected.
56. Defendant Marez and the other members of the UCC denied Ms. Star’s request for safekeeping, refusing to take steps necessary to protect her and forcing her back into the general population.
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57. Ms. Star submitted a written grievance on November 6, 2013, appealing the UCC’s November 4, 2013, decision to deny her safekeeping request. It stated:
I am gay and have been taken advantage of in the past. . . . My documented alias is ‘Passion’ which is not masculine at all. All of my problems stem from being a homosexual in a general population of offenders who have constantly attempted to take advantage of me or request sexual favors. . . . During my time in prison, . . . I have only been moved from 1 pod to another or section in general population where these same offenders and their gang affiliated homeboys still have easy access to get to me. TDCJ does not control the gang influenced general population enough to ensure . . . homosexual offenders safety from being assaulted, threatened or extorted. 58. On November 13, 2013, during a church service, J.T. threatened Ms. Star again. He said loudly in front of other Crips that Ms. Star “belonged” to him. He told her that refusal was not an option and that, since she was gay, she had to “stay in a ho’s place.” 59. The next day, November 14, 2013, Defendant Blanchard denied Ms. Star’s November 6, 2014 grievance, responding solely: “You did not meet the criteria to be placed in safekeeping.” Defendant Blanchard did not explain what the criteria were or inform Ms. Star of any recourse she might take to obtain protection against assault. 60. On November 15, 2013, Officer Johnson and Officer Deevers were sent to interview Ms. Star about the gang threats to her as a result of an offender protection investigation initiated by her building supervisor. Instead of taking Ms. Star seriously, Officer Johnson told her, “You’ve fought once. Fight again.” Officer Deevers told Ms. Star that they had no intent of forwarding Ms. Star’s request for help to the Safe Prisons Program. 61. Ms. Star appealed the UCC’s denial of her request to be in safekeeping to the State Classification Committee (“SCC”) on November 15, 2013, stating that she lives with the “constant threat of being hurt” because she is gay and effeminate in the general population. She also explained that she has been forced “to be sexually active in the past to ensure [her] safety and to protect [herself] from aggressive cellies.”
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November 19 and 20, 2013: Pleas for Safekeeping are Ignored, with Horrific Results 62. On November 19, 2013, Ms. Star again appeared in front of the UCC, composed of Defendant Blanchard, Defendant Walters, and Defendant Smith. Ms. Star told them about the threats she received from J.T. and other inmates and again requested to be placed in safekeeping. Defendant Blanchard, Defendant Walters, and Defendant Smith denied Ms. Star’s request for protection and ordered her to be returned to “the next available cell” in her custody level in the general population. 63. Prior to reporting the threats, Ms. Star and J.T. were housed on different pods. On November 19, 2013, TDCJ officials, including Defendant Blanchard, Defendant Walters, and Defendant Smith, in deliberate indifference to the substantial risk to Ms. Star’s safety, moved her into 8 Building, L-Pod, where J.T., the specifically identified person from whom she was seeking protection, was housed. 64. On this same day, November 19, 2013, on her way to dinner, Ms. Star appealed to Defendant Pickett, the 8 Building supervisor, for help. She explained the history of violence and threats directed against her by other inmates in the Hughes Unit and told him that she had already received threats from Crips gang members, that day, since being moved to L Pod. Defendant Pickett told her that it was “not [his] problem” and refused to do anything to help her. 65. That evening, Ms. Star filed an emergency grievance appealing the UCC’s denial and again requesting to be moved to safekeeping and explaining the threats that she had received from J.T. and other Crips. 66. The very next morning, November 20, 2013, the assault that she had been begging to be protected from occurred. J.T. and other Crips gang members brutally attacked Ms. Star
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from behind as she headed to breakfast. J.T. called her a “snitching faggot.” As other members of J.T.’s gang watched, J.T. repeatedly slashed Ms. Star’s face with a razor while she struggled. One cut came within a quarter of an inch of her right eye. Ms. Star bled profusely and suffered intense pain.
67. As a result of this brutal attack, Ms. Star was taken to Correctional Managed Care. The nurse who treated Ms. Star, on November 20, 2013, noted “lacerations to the facial area,” that required a total of 36 sutures. These included a laceration to the top of her right forehead, 5 ½ centimeters long, closed with 8 sutures; one above her right eyebrow, 5 ¼ centimeters long, closed with 9 sutures; one on the outer edge of her right eye, 4 centimeters long, closed with 7 sutures; and two below her right eye, both 5 centimeters long, closed with 8 sutures and 4 sutures, respectively. The nurse also noted a one-centimeter laceration on the top of Ms. Star’s right ear crease, which was closed with Dermabond, and two additional lacerations deemed superficial, on the top of her head and on her right check.
68. Despite the sutures and Dermabond, several of the lacerations reopened, causing Ms. Star to bleed further. These lacerations are leaving prominent, raised scars on her face, which are likely to be permanent.
69. After the attack, Defendant Smith brought Ms. Star her property. Ms. Star told Defendant Smith to look at her and said that she would have to live with this—meaning the lacerations and scarring—for the rest of her life. Defendant Smith said only, “Ah, man,” and left.
70. On November 22, 2013, two days after the razor attack occurred, Defendant Maldonado denied the grievance requesting assignment to safekeeping that Ms. Star had submitted on November 19, 2013, prior to the razor attack. Defendant Maldonado wrote, “You
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were seen by UCC on 11/19/13. . . . The committee did not find sufficient evidence to support your allegations. Due to lack of evidence you were released from transient and scheduled to move to the next available cell in your custody.”
71. Defendant Maldonado failed to mention that since grieving the UCC’s decision to deny her protection on November 19, 2013, the attack that Ms. Star had warned would happen had indeed happened. Defendant Maldonado failed to conduct an active investigation into Ms. Star’s urgent pleas for help and was deliberately indifferent to her statements that she was in danger despite her vulnerable status based on her gender identity, perceived sexual orientation, and history of victimization, and the recent mutilation of her face by J.T.
72. On November 22, 2013, Ms. Star was again taken in front of the UCC, composed of Defendant Blanchard, Defendant Walters and Defendant Smith. Ms. Star again informed Defendant Blanchard, Defendant Walters, and Defendant Smith of the assaults and the threats against her, including the razor attack, and requested to be placed in safekeeping.
73. Despite the recent attack, the razor wounds, and Ms. Star’s obvious vulnerability, Defendant Blanchard, Defendant Walters, and Defendant Smith again denied Ms. Star’s request to be housed in safekeeping. Defendant Blanchard, Defendant Walters, and Defendant Smith instead recommended that Ms. Star be transferred to the general population of another unit.
74. Defendant Blanchard, Defendant Walters, and Defendant Smith recommended unit transfer even though they knew that gay men and transgender women were generally vulnerable to sexual assault, that gangs operated throughout TDCJ, and that Ms. Star would be targeted by members of J.T.’s gang in the new unit. Upon information and belief, Defendant Blanchard, Defendant Walters, and Defendant Smith were aware that transferring
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Ms. Star to the general population of a different unit had been ineffective to protect Ms. Star in the past and would be ineffective to protect her from further serious harms. While informing Ms. Star on November 22, 2013, of the UCC’s decision to transfer her rather than place her in safekeeping, Defendant Blanchard taunted Ms. Star, “Now I bet you really feel like your life is in danger.”
75. On November 26, 2013, Defendant Maldonado concluded, when reviewing a grievance submitted by Ms. Star on November 20, 2013 after the razor attack, that at last there was “sufficient evidence” to support Ms. Star’s claims, but instead of approving Ms. Star’s request to be placed in safekeeping, Defendant Maldonado recommended that Ms. Star be transferred to the general population in a different unit. Defendant Maldonado denied the request for safekeeping even though he was aware that transferring Ms. Star to the general population of a different unit had been ineffective to protect Ms. Star in the past and would be ineffective to protect her from future harm.
76. On November 29, 2013, Ms. Star appealed the decision to send her to general population in a new unit, stating that:
simply recommending that I be transferred off the unit isn’t enough to ensure that I am no longer victimized. . . . I followed instruction and was placed back into a position to be hurt – knowingly. So, I request safekeeping away from the general population of offenders that have victimized me and will continue to do so. 77. Defendant Armstrong, who had previously reviewed other grievances appealed by Ms. Star to the SCC and was on notice that Ms. Star was particularly vulnerable to abuse in the general population, reviewed Ms. Star’s November 29, 2013 grievance. On January 8, 2014, Defendant Armstrong denied Ms. Star’s appeal, indicating that Ms. Star had been designated “not for same unit” as J.T., transferred to the Robertson Unit, and that no further action was warranted. Defendant Armstrong disregarded the fact that transferring Ms. Star to a new unit
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would not protect her, rubber-stamped the UCC’s actions, failed to actively investigate Ms. Star’s claims, and was deliberately indifferent to the significant threat of serious harm to Ms. Star.
Defendants’ Failures to Protect Ms. Star From Assaults and Threats Directed at Ms. Star by Other Inmates in the Robertson Unit 78. On December 6, 2013, TDCJ officials transferred Ms. Star to the general population in the Robertson Unit. Upon information and belief, TDCJ officials did not screen her for vulnerability or use relevant information to separate her from likely aggressors. 79. J.T. had been housed in the general population of the Robertson Unit prior to his transfer to the Hughes Unit, and he was well known at Robertson as a high-ranking member of the Crips. Even though there were many Crips in the Robertson Unit, and TDCJ staff knew that Ms. Star was the target of a well-known Crips gang member, TDCJ staff took no measures to protect Ms. Star in this new unit. 80. On or around December 11, 2014, when reviewing paper work Ms. Star filed seeking an offender protection investigation (“OPI”) into the sexual harassment and threats to which Ms. Star had been subjected, Defendant Lopez told Ms. Star to “suck dick, fight or quit doing gay shit and you’ll be okay but quit running me with OPIs.” 81. On December 12, 2013, Ms. Star appeared before the UCC in Robertson headed by Defendant Gonzales. She told Defendant Gonzales and the other members of the UCC that she was gay, had a history of sexual and physical assaults in other TDCJ facilities, including the recent razor attack by J.T., as well as the sexual coercion she had experienced at the hands of other TDCJ inmates, and was afraid that she would be targeted by the Crips in Robertson once they learned about the incident with J.T. Ms. Star explained that she feared for her life, and requested to be placed in safekeeping.
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82. Defendant Gonzales and the other members of the UCC denied Ms. Star’s request to be placed in safekeeping.
83. Ms. Star filed and appealed additional grievances in which she explained that J.T. had until recently been a high ranking member of the Crips gang on Robertson, members of the Crips gang associated with J.T. were housed in close proximity to her, and that she feared that she would be attacked again.
84. Soon after she arrived in Robertson, gang member T.T. spread the word among the Crips in Robertson that Ms. Star was a “snitching faggot” and told Ms. Star that the Crips at Robertson would finish what J.T. started.
85. Inmates in Robertson also identified her as feminine and aggressively propositioned her for sex. For example, from January to March 2014, a Crips gang member known as C.G.X. repeatedly pressured Ms. Star to perform sexual acts for him in return for her safety. C.G.X. told Ms. Star that she had to find a man to protect her or be raped.
86. In or around March 2014, an inmate known as P.N., also a member of the Crips, sent Ms. Star a “kite” (a letter threatening to kill Ms. Star). Ms. Star gave this letter from P.N. to Officer Scott, a member of the Security Threat Group, on or around March 27, 2014, and asked for help and protection.
87. In desperation and fear, Ms. Star sent letters to the Safe Prisons Program Coordinator, Defendant White at the SCC, and Defendant Bales, the PREA ombudsman, begging for help. Defendant Gonzales, the assistant warden, angrily told Ms. Star on or around April 1, 2014 that she would “get nothing” by going over his head and writing his superiors for help.
88. Ms. Star again appeared in front of the UCC headed by Defendant Gonzales on
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April 7, 2014 and again explained the threats to her safety. Defendant Gonzales and the other members of the UCC denied Ms. Star’s request to be placed in safekeeping. Instead, they recommended that Ms. Star be transferred to the general population of yet another unit.
89. Ms. Star appealed the denial of her request to be moved to safekeeping on April 9, 2014. She wrote that the dangers to her were
all rooted in the fact that I am a homosexual housed in the gang influenced general population of offenders. . . Just recommending that I be transferred to another unit will not ensure my safety, just as it did not after the 3-29-07 sexual assault, nor after the 11-20-13 assault with a weapon. I am an offender with a ‘potential for victimization’, otherwise I wouldn’t be constantly victimized and threatened by other offenders. 90. Soon after, Ms. Star received a response from Defendant Bales dated April 8, 2014, acknowledging receipt of her letters to him dated March 27, 2014 and March 28, 2014, in which she described her history and the threats to which she had been subjected at the Robertson Unit. Defendant Bales wrote that the “unit administration was unable to substantiate the allegations,” explaining that “‘unsubstantiated’ means there was insufficient evidence to determine if the incident occurred or did not occur.” In deliberate indifference to Ms. Star’s safety, the PREA Ombudsman failed to conduct an active or independent investigation or to take Ms. Star’s claims seriously. Instead, Defendant Bales informed Ms. Star that the inquiry would be closed and no further action would be taken. 91. On April 23, 2014, Defendant Webb denied Ms. Star’s April 9, 2014 grievance, stating that the SCC was considering whether to accept the UCC’s recommendation of unit transfer and that no further action was necessary. Defendant Webb disregarded Ms. Star’s complaint that moving her to the general population in a new unit would not be sufficient to protect her from harm. 92. Ms. Star again sent a letter to Defendant Bales on May 13, 2014, writing that she
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had been called a “snitching faggot . . . told that I need to find a man and threatened with rape.” 93. On May 15, 2014, Defendant Gonzales reviewed another grievance where Ms.
Star laid out the threats to her safety. Despite knowing that Ms. Star was at substantial risk of serious harm, he still denied her pleas to be housed in safekeeping.
94. On May 30, 2014, Defendant Armstrong denied Ms. Star’s appeal to the SCC. Defendant Armstrong informed Ms. Star in writing that the SCC had not only rejected Ms. Star’s request to be moved to safekeeping, but had also rejected the UCC’s recommendation that Ms. Star be transferred to a different unit. Defendant Armstrong denied Ms. Star’s request for safekeeping and the UCC’s request for unit transfer despite being aware of Ms. Star’s history of being threatened and assaulted, including the assault in the Hughes Unit, in effect instructing that Ms. Star should be placed back in the general population in the Robertson Unit in the midst of the inmates Defendant Armstrong had been informed were threatening Ms. Star’s life.
95. On or about June 17, 2014, Ms. Star appeared before the UCC headed by Defendant Fox, the Senior Warden at Robertson. Defendant Fox denied Ms. Star’s request for safekeeping, instead moving her to a different building, Building 3, in the general population at Robertson, even though he was aware that she would continue to be targeted by the Crips gang and other inmates.
96. In approximately July 2014, T.T. spread word to the Crips gang members in Building 3 that Passion was a “snitching faggot” who should be killed. A Crips gang member in Building 3, known as T.K.X., told Ms. Star that she would be killed. He called her a “snitch” and a “faggot” and said that she could not “run forever” but would sooner or later “have to face the consequences” because she rejected J.T. and pressed charges against him. Ms. Star received similar threats from other members of the Crips in Building 3.
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97. Ms. Star filed another grievance on July 21, 2014, detailing threats she had received from Crips gang members in the new building. She said that the Crips wanted to retaliate against her because of her conflict with J.T. while at the Hughes Unit. She wrote, “I have been told that I will be killed if I remain in population.”
98. On July 26, 2014, counsel from Lambda Legal visited Ms. Star for the first time in the Robertson Unit. The next day Sergeant Marquez moved Ms. Star into “lock-up,” a cell in solitary confinement, which is used to discipline inmates. Ms. Star’s belongings were packed by someone else and brought to her in the solitary confinement cell. Ms. Star was placed in solitary without a disciplinary infraction, and has remained in solitary confinement for more than 80 days, where she was confined to her cell for more than 23 hours a day. In solitary, she was denied opportunities to attend church, work, study, call her family, and was even denied the one hour of recreation time afforded to inmates housed in administrative segregation.
99. When Ms. Star asked Defendant Lopez why she was stuck in solitary without a hearing or a disciplinary infraction, while the investigation into the threats against her was pending, Defendant Lopez told her to “quit filing OPIs,” if she did not want to be in solitary.
100. On July 27, 2014, Ms. Star wrote to Defendant Fox begging him for help. On information and belief, Defendant Fox did not respond to Ms. Star’s letter to him or investigate her claims that she was at substantial risk of serious harm and that his staff was not responding appropriately.
101. On August 1, 2014, Ms. Star appeared in front of the UCC headed by Defendant Webb. Ms. Star again explained her problems and the threats against her. She told the Committee that her problems related to her being a transgender woman confined in the general population in a male prison. Defendant Webb replied, “It’s a man’s prison. You can’t expect to
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walk around acting like that and not have problems.” 102. Despite his knowledge of the danger that Ms. Star faced, Defendant Webb
denied Ms. Star’s request for safekeeping and recommended that she be transferred to the general population in a different unit.
103. On August 1, 2014, and again on August 11, 2014, Ms. Star filed more grievances, outlining the threats made to her safety by gang members and requesting placement in safekeeping. In the August 11, 2014 grievance, Ms. Star wrote:
[T]ransferring me from unit to unit in general population does nothing to rectify this problem that is pervasive. . . . I have been threatened with my life as well as threatened with rape. Housing me in general population to repeat the same cycles with different offenders is absurd. . . . 104. The next day, Ms. Star wrote directly to SCC, requesting placement in safekeeping. She identified herself as a transgender woman and again explained that her “life is in danger.” 105. On or around August 14, 2014, Ms. Star again appeared before a UCC headed by Defendant Gonzales. Despite his knowledge of the danger that Ms. Star faced, Defendant Gonzales again denied Ms. Star’s request for housing in safekeeping and recommended no further action be taken until a decision concerning Ms. Star’s request was made by SCC. 106. On September 8, 2014, a transgender woman called Renee Divine was brought into the wing where Ms. Star was confined on a stretcher. Ms. Divine told Ms. Star that she had been sexually assaulted by her cellmate in her previous building. Ms. Star also learned that when Ms. Divine reported the rape to Defendant Lopez, instead of taking her for medical care and filing a report, Defendant Lopez forced Ms. Divine to take a shower and placed her back in the cell with her assailant, who raped her again. 107. When Ms. Star attempted to intervene on behalf of Ms. Divine, Officer Snodgrass
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told her, “Shut up! Mind your own business, faggot,” and threatened Ms. Star with a disciplinary and “food loaf” as punishment. Upset by the treatment of Ms. Divine and fearing that Ms. Divine would not be able to file a grievance, on September 10, 2014, Ms. Star submitted a grievance reporting the alleged rape of Ms. Divine and the threats she had received from officers when she tried to help Ms. Divine. After Ms. Star filed the grievance, a grievance officer came to her cell and told her that she was permitted only to write grievances about issues that concerned her personally—even though federal law provides otherwise.
108. After attempting to help Ms. Divine, TDCJ officials transferred Ms. Star on or around September 15, 2014, to a different solitary cell in administrative segregation in the 12 building.
109. On or around October 6, 2014, Ms. Star learned that the SCC had denied the UCC’s recommendation that she be transferred to a new unit. Even though he possessed information about the current threats to Ms. Star in the Robertson Unit and Ms. Star’s documented history of being threatened and assaulted, Defendant Fuster denied Ms. Star’s request for safekeeping and the UCC’s recommendation for unit transfer, in effect instructing that Ms. Star should remain in the general population of the Robertson Unit, where the risk that she would be seriously harmed again was substantial.
Particular Vulnerability of LGBT People in Custody 110. At all times relevant to this action, Defendants were aware that LGBT inmates face a heightened risk of sexual abuse in general and at TDCJ facilities, including the Hughes and Robertson Units. 111. LGBT and gender-nonconforming people are sexually abused more frequently in prisons and jails than other inmates. Thus, they are widely considered particularly vulnerable to
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sexual abuse in the correctional context. 112. Before 2012, it was widely known and discussed both inside and outside the
correctional community that LGBT and gender-nonconforming inmates are among the groups with the highest rates of sexual victimization in prisons and jails. For example, the Bureau of Justice Statistics (“BJS”), the Department of Justice, the National Institute of Corrections, the American Jail Association, the National Prison Rape Elimination Commission, and Human Rights Watch have all noted publicly that LGBT inmates are particularly vulnerable to sexual abuse while incarcerated.
113. TDCJ’s internal training documents note that LGBT people are vulnerable to sexual abuse while incarcerated and have a greater potential for being victimized than other inmates. TDCJ’s written policy recommends that an inmate’s sexual orientation and/or gender identity be taken into account when assigning housing to reduce the possibility of sexual abuse.
114. Upon information and belief, prior to Ms. Star’s complaints, Defendants knew that LGBT inmates at TDCJ facilities, including the Hughes and Robertson Units, had been victims of sexual assault or were forced to perform sexual acts for other inmates to escape violence.
Violence in TDCJ Facilities 115. Defendants were aware of the violence and sexual abuse throughout TDCJ, including at the Hughes and Robertson Units. 116. TDCJ facilities rank as some of the worst prisons in the country for reported inmate-on-inmate sexual assault and victimization. 117. As confirmed by a 2013 study by BJS, Texas has more prison facilities with high rates of inmate-on-inmate sexual violence than any other state. Of the state and federal prisons
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surveyed by BJS in 2011 and 2012, five out of the ten facilities with the highest prevalence of sexual assault were part of the TDCJ.
118. In 2010, BJS reported that nearly nine percent of inmates surveyed in the Hughes Unit had been sexually assaulted by other inmates.
119. Between September 2012 and August 2013, TDCJ documented fourteen cases of sexual assault at the Hughes Unit and eighteen at the Robertson Unit.
120. As early as 2001, the Texas Legislature noted the systemic problem of prison rape and sexual assault in TDCJ facilities. Texas legislators have stated that the failure of government to address such violence is one of the most egregious human rights violations in Texas.
121. The violence at TDCJ prisons includes gang violence. 122. At all relevant times, Defendants were aware that individuals who have a conflict with one gang member are at risk of violence from other members of the same gang, that gangs or security threat groups (“STGs”) operated throughout TDCJ facilities, and that their reach extends beyond a particular unit. 123. TDCJ collects, analyzes, and disseminates gang-related information to its staff and law enforcement agencies. TDCJ currently recognizes twelve gangs or STGs, including the Bloods and the Crips, who operate and coordinate unlawful activities across TDCJ facilities and outside TDCJ facilities. 124. Prison gang-related crime and violence pose a significant threat to inmates and staff at TDCJ. Gang members, including members of the Bloods and the Crips, have been responsible for many sexual and physical assaults and homicides in TDCJ facilities. 125. Defendants have demonstrated deliberate indifference to the documented substantial risk of serious harm to TDCJ inmates—particularly with respect to the substantial
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risk of serious harm to LGBT inmates and the substantial risk of serious harm from gangs. Defendants Have Adopted a Practice and Custom that Tolerates Sexual Abuse of Inmates
and Have Failed to Train and Supervise TDCJ Staff 126. Although Defendant Livingston, Defendant Bales, Defendant White, Defendant Dean, and Defendant Fox are knowledgeable about PREA6 and have even adopted many of the mechanisms to prevent sexual abuse in prisons into TDCJ’s written policies, such as the Safe Prisons Plan,7 these defendants have failed to adequately train and supervise their staff on the known mechanisms to reduce and prevent sexual abuse of inmates, demonstrating deliberate indifference to the substantial risk of serious harm to LGBT inmates, including Ms. Star. 127. If Defendant Livingston, Defendant Bales, Defendant White, Defendant Dean, and Defendant Fox had adequately trained and supervised their staff and/or implemented PREA or Texas’s written policies, such as the Safe Prisons Plan, Ms. Star would not have lived under the constant threat of sexual assault and other harm and would not have been repeatedly assaulted. 128. Instead of implementing the mechanisms to protect inmates from sexual abuse developed in PREA and Texas’s own policies, Defendant Livingston, Defendant Bales, Defendant White, Defendant Dean, and Defendant Fox have adopted widespread and pervasive customs and practices that are so deficient that these defendants are deliberately
6 Congress unanimously enacted the Prison Rape Elimination Act of 2003 (“PREA”), which was signed into law by President George W. Bush in 2003. As part of PREA, Congress established the bipartisan National Prison Rape Elimination Commission to investigate the problem of sexual abuse of people in government custody and to propose standards to eliminate such sexual abuse. The final standards became effective June 20, 2012, when they were published in the Federal Register. See 28 C.F.R. Part 115. 7 In 2007, the Texas Legislature acknowledged the problem of sexual abuse within Texas correctional facilities and passed legislation requiring TDCJ to adopt a “zero-tolerance policy” concerning the detection, prevention, and punishment of sexual abuse of persons in the custody of TDCJ. See Tex. Cov’t Code § 501.011. TDCJ’s Safe Prison/PREA Plan is available at http://www.tdcj.state.tx.us/documents/cid/Safe_Prisons_PREA_Plan.pdf.
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indifferent to the substantial risk of serious harm to LGBT inmates, including Ms. Star. 129. Defendant Livingston, Defendant Bales, Defendant White, Defendant Dean,
and Defendant Fox have adopted a widespread and pervasive custom and practice that deters inmates from filing complaints, denies them protection from sexual assault and physical abuse, refuses to investigate inmate complaints, and fails to staff and fund the facilities in a way that adequately protects against physical violence among inmates, including measures to protect gay and transgender inmates from the substantial risk of serious harm.
130. Upon information and belief, TDCJ staff members regularly refuse to offer safekeeping protection to inmates, including Ms. Star, who are obviously vulnerable to sexual abuse, even when the inmates specifically and repeatedly request that status and other alternatives to protect them prove ineffective.
131. In contrast to this widespread and pervasive custom and practice, the Texas Safe Prisons Plan requires that safekeeping status be available for incarcerated people in all general population custody levels “who require separate housing from general population because of threats to their safety due to a history of homosexual behavior, a potential for victimization, or other similar reasons.” Inmates in safekeeping sleep and receive their meals and recreation time apart from the general population and are thus provided additional protection from inmate-oninmate sexual abuse.
132. Upon information and belief, direct supervision in TDCJ facilities is insufficient to protect inmates from sexual abuse or for guards to properly supervise the inmates in their care. Upon information and belief, TDCJ has not been able adequately to identify and retain qualified employees. Upon information and belief, inattentive and undercompensated guards allow aggressive inmates to have the run of the prison, to exert control over other inmates, and to
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victimize vulnerable inmates. Upon information and belief, video surveillance is insufficient to document and/or deter sexual predation in the general population at TDCJ facilities. Many areas in the general population lack security cameras. There is a custom and practice of insufficient supervision in TDCJ facilities.
133. In contrast to the widespread and pervasive custom and practice in TDCJ, Texas’s written policies and the PREA require that TDCJ maintain “adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse.” 28 C.F.R. § 115.13.
134. Upon information and belief, TDCJ staff members are not adequately trained on, inter alia, the importance of protecting inmates from sexual abuse. Upon information and belief, training provided to TDCJ employees is perfunctory and inadequate to ensure that staff members know how to prevent sexual abuse and how to respond to allegations of threatened sexual abuse. Upon information and belief, high turnover rates and the influx of new staff means that many staff have not been trained or had only basic training. According to a 2012 survey of TDCJ correctional officers, conducted by the Texas Criminal Justice Coalition, more than half the correctional officers surveyed do not believe that they receive adequate training, and nearly twothirds do not believe the training they have received has prepared them for the challenges of their job. Furthermore, TDCJ has not trained its staff concerning professional interactions with LGBT or gender-nonconforming inmates. In fact, as alleged above, it is common for TDCJ staff to call inmates “faggot” and “punk;” to speak to them in a derogatory manner; and to suggest that a gay inmate cannot be raped. There is a custom and practice of deficient training in TDCJ.
135. In contrast to the widespread and pervasive custom and practice in TDCJ, Texas’s written policies and PREA require TDCJ to train all employees who may have contact with
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inmates on the zero-tolerance policy for sexual abuse and sexual harassment; the dynamics of sexual abuse and sexual harassment in confinement; how to detect and respond to signs of threatened and actual sexual abuse; how to prevent, detect, report, and respond to allegations; the common reactions of sexual abuse and sexual harassment victims; and how to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, intersex, or gender-nonconforming inmates. See 28 C.F.R. § 115.31.
136. Upon information and belief, despite being obligated to do so, Defendants fail to adequately screen inmates for vulnerability to sexual abuse and to separate them from likely aggressors. Upon information and belief, TDCJ placed Ms. Star into the general population of multiple TDCJ units without first adequately screening her for vulnerability. Defendants did not use the information available to them that, as an LGBT person who had been previously sexually abused in the general population, Ms. Star was substantially vulnerable to future serious abuse, nor did they take into consideration her own perceptions of vulnerability to inform her housing and other assignments. Instead of recognizing that Ms. Star’s LGBT identity made her more vulnerable, TDCJ officials suggested that Ms. Star should enjoy being sexually abused and ridiculed her. The failure to screen inmates and separate vulnerable inmates from aggressive inmates is the custom and practice at TDCJ.
137. In contrast to the widespread and pervasive custom and practice, Texas’s written policies and PREA require that inmates be screened for vulnerability and separated from likely aggressors. The screening assessment shall include “whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;” “whether the inmate has previously experienced sexual victimization;” and “the inmate’s own perception of vulnerability.” § 115.41.
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138. Defendants failed to actively investigate Ms. Star’s complaints of assaults, sexual harassment and threats to her safety. Upon information and belief, despite being obligated to do so, Defendants did not adequately review Ms. Star’s repeated complaints or respond reasonably given the fact that the assaults and threats were based on her perceived sexual orientation and her gender identity. When investigating Ms. Star’s complaints and grievances, Defendants ignored the well-known culture of silence in prisons that offers swift and severe retribution for “snitches” and instead approached Ms. Star’s complaints as necessarily unworthy of attention unless substantiated by additional witnesses or evidence, when often the only witnesses were Ms. Star and the inmate who was threatening or assaulting her. Defendants seemingly ignored the physical evidence of Ms. Star’s repeated abuse and summarily closed Ms. Star’s grievances, ignoring her pleas to be placed in safekeeping. Perfunctory and incomplete investigation of inmate complaints is the custom and practice at TDCJ.
139. In contrast to the widespread and pervasive practice and custom, Texas’s written polices and PREA require that employees investigating sexual abuse must receive specialized training, including training on gathering and preserving direct and circumstantial evidence; must take immediate action to protect inmates from a substantial risk of imminent sexual abuse; and must take an active role in the investigation, interviewing alleged victims, suspected perpetrators, and witnesses and reviewing prior complaints and reports of sexual abuse involving the suspected perpetrator. See §§ 115.34, 71.
140. Despite alternative placement options, including safekeeping, as a result of reporting threats against her, Ms. Star has been involuntarily held in solitary confinement for periods exceeding 30 days, in conditions similar to those used to punish inmates for disciplinary infractions. Upon information and belief, TDCJ staff members employ isolation as a tool to deter
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inmates from complaining about sexual and other abuse in TDCJ facilities. There is a widespread practice and custom of using the threat of solitary to deter inmates from complaining about sexual abuse and threats of violence.
141. In contrast to the widespread and pervasive custom and practice, because of the well-documented harmful effect of solitary confinement, Texas’s policies and PREA prohibit the use of involuntary segregated housing unless a determination has been made that there is no available alternative means of separation from likely abusers. If no alternative means are available, the policies require that an inmate remain in involuntary segregated housing only “until an alternative means of separation from likely abusers can be arranged,” a period that “shall not ordinarily exceed 30 days” and that people incarcerated in segregated housing should have access to programs, privileges, education, and work opportunities. See § 115.43.
142. The PREA Ombudsman office, headed by Defendant Bales, is charged, inter alia, with monitoring the policies for responding to inmate sexual abuse and ensuring that complaints of sexual abuse are impartially and adequately investigated, but, upon information and belief, the office employs only three staff members, a staff wholly insufficient to review and investigate hundreds of complaints of sexual abuse every year.
143. Upon information and belief, Defendant Livingston, Defendant Bales, Defendant White, Defendant Dean, and Defendant Fox have at all relevant times had personal knowledge of the widespread sexual abuse and other violence in TDCJ and of the mechanisms to prevent sexual abuse of inmates. Yet despite years of ineffective training, supervision, customs, and practices, these defendants have failed to take necessary action to correct these institutional problems.
144. Far from evincing a “zero-tolerance” policy for sexual assault, Defendants’
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conduct has established a widespread and pervasive custom and practice of tolerance and apathy toward sexual assault and sexual harassment in TDCJ facilities. It is the custom and practice of Defendants, implemented without regard to the safety or constitutional rights of Ms. Star, which has caused her injuries and the continuing, severe threat to her constitutional rights.
145. The willful refusal to address the widespread violence in TDCJ is further exacerbated by Texas Governor Rick Perry’s March 2014 announcement that he would refuse to certify that TDCJ prisons complied with the PREA or work towards compliance, thereby forfeiting approximately $1 million in federal funds that could have been used to address sexual assaults in TDCJ. In doing so, Governor Perry called the PREA standards “ill-conceived” and “impossible” to implement, despite the National Prevention and Elimination of Rape Commission’s and the DOJ’s extensive engagement with relevant authorities, as well as the TDCJ’s own involvement in the development of PREA standards.
Defendants Were Personally Involved and Could Have But Did Not Prevent the Harm and Threats to Ms. Star
146. Defendant Bales, the PREA Ombudsman, received several letters from Ms. Star describing the substantial risk of serious harm that she faced, including letters on March 27, 2014 and March 28, 2014. Nevertheless, on April 8, 2014, without determining that her pleas were unfounded, Defendant Bales informed Ms. Star that he would take no action to protect her.
147. Defendant White, Assistant Director of TDCJ’s Classification and Records Department, upon information and belief, was aware that Ms. Star had been assaulted in the past by other inmates in TDCJ facilities and was at substantial risk of serious future assaults. Upon information and belief, Defendant White received at least two letters from Ms. Star pleading for help and multiple grievances that Ms. Star submitted to the SCC, but refused to act or authorize action to protect Ms. Star.
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148. Defendant Armstrong, Assistant Regional Director in the SCC, refused to take or authorize reasonable actions to protect Ms. Star, even though he was aware that she had been assaulted in the past by other inmates at the Hughes and Robertson Units, as well as other TDCJ facilities, and was at risk of future assaults by inmates. On behalf of the SCC, between November 2013 and October 2014 Defendant Armstrong reviewed and denied at least six appeals of grievances in which Ms. Star sought safekeeping because of threats of violence and imminent harm. On May 30, 2014, he denied a recommendation by the UCC at Robertson to transfer Ms. Star to a new unit.
149. Defendant Fuster, Assistant Regional Director in the SCC, refused to take or authorize reasonable actions to protect Ms. Star even though he was informed that she had been assaulted in the past by other inmates at the Hughes and Robertson Units, as well as other TDCJ facilities, and was at substantial risk for serious future assaults. Defendant Fuster reviewed at least one grievance in which Ms. Star requested safekeeping because of threats of violence and imminent harm on September 26, 2014 on behalf of the SCC. He denied Ms. Star’s request for safekeeping and further denied a recommendation by the UCC to transfer Ms. Star from Robertson to a new unit.
150. Defendant Dean, Senior Warden at the Hughes Unit, was aware that Ms. Star had been assaulted in the past by other inmates and was at substantial risk of serious future assaults. Ms. Star sent him a letter detailing the threats against her in October 2013. Upon information and belief, Defendant Dean received and reviewed this letter, but took no action to protect her.
151. Defendant Blanchard, Assistant Warden at the Hughes Unit, was aware that Ms. Star had been assaulted in the past by other inmates at the Hughes Unit and was at substantial risk of serious future assaults. Nevertheless, Defendant Blanchard denied at least four grievances
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submitted by Ms. Star regarding threats and violence against her. On November 19, 2013, as a member of the UCC, Defendant Blanchard denied Ms. Star’s request for safekeeping based on violence and threats against her and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked.
152. Defendant Maldonado, Assistant Warden at the Hughes Unit, denied at least two grievances submitted by Ms. Star regarding violence and threats of violence against her, disregarded readily available evidence, and failed to adequately investigate Ms. Star’s claims. Even though Defendant Maldonado was aware that Ms. Star had been assaulted by other inmates at the Hughes Unit in the past and was at substantial risk of serious future assaults, on November 22, 2013, Defendant Maldonado disregarded information that Ms. Star had been viciously attacked two days earlier and denied her request for safekeeping.
153. Defendant Marez, a Major at the Hughes Unit, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, he denied at least five requests by Ms. Star to be placed in dormitories, and on November 4, 2013, as a member of the UCC, denied Ms. Star’s request for safekeeping.
154. Defendant Smith, a Captain at the Hughes Unit, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, on November 19, 2013, Defendant Smith denied Ms. Star’s request for safekeeping and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked in that pod.
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155. Defendant Pickett, a Sergeant in Hughes, was informed that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, on November 19, 2013, Defendant Pickett ignored Ms. Star’s desperate plea for help to protect her against a threatened attack and refused to take action to protect her from the attack that occurred the next morning.
156. Defendant Walters, a Classification Secretary at the Hughes Unit, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, on November 19, 2013, Defendant Walters denied Ms. Star’s request for safekeeping and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked.
157. Defendant Fox, a Senior Warden at the Robertson Unit, was aware that Ms. Star had been assaulted by inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults while in the general population. Nevertheless, on June 17, 2014, as a member of the UCC, he denied Ms. Star’s request for safekeeping. Upon information and belief, Defendant Fox received letters sent to him by Ms. Star detailing the threats against her.
158. Defendant Gonzales, an Assistant Warden at the Robertson Unit, was aware that Ms. Star had been assaulted by inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults while in the general population. Nevertheless, as a member of the UCC, he denied at least three of Ms. Star’s requests for safekeeping between December and August 2014, and also denied a grievance on April 7, 2014, in which Ms. Star requested safekeeping.
159. Defendant Webb, an Assistant Warden at the Robertson Unit, was aware that Ms. Star had been assaulted in the past and was at substantial risk of future assaults while in the
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general population. Yet, he denied at least one grievance that she submitted requesting placement in safekeeping on April 9, 2014, and, as a member of the UCC, denied Ms. Star’s request for safekeeping on August 1, 2014.
160. Defendant Lopez, a Sergeant at the Robertson Unit, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults while in the general population. Yet, he displayed deliberate indifference to the substantial risk that Ms. Star would be seriously harmed, telling her to stop filing OPIs requesting additional protection and to “suck dick, fight, or quit doing gay shit.” He was also aware that Ms. Divine had been sexually assaulted and took no action to protect her.
161. In light of the following, Defendants Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez were personally aware that Ms. Star was at substantial risk of serious harm, and they should have placed her in safekeeping or taken other actions to reduce the harm and the threat of harm to her.
FIRST CLAIM FOR RELIEF Injunctive and Declaratory Relief U.S. Const. Amend. VIII - Deliberate Indifference (Against Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez in their
Official Capacities) 162. Plaintiff incorporates by reference all previous paragraphs of this Complaint as if fully set forth here. 163. With deliberate indifference to Ms. Star’s personal health and safety, Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez failed and continue to fail to protect her from substantial risk of serious harm in violation of her rights under the Eighth and the Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. 164. Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and
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Lopez are aware that violence in the prison was frequent and regular and that predatory gangs operated across TDCJ facilities and targeted vulnerable inmates, including Ms. Star, for violence, sexual assault, and sexual exploitation.
165. Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez are aware that gay men and transgender women housed in male correctional institutions, including Ms. Star, are particularly vulnerable to violence, sexual assault and sexual exploitation. The substantial risk of serious harm to Ms. Star is obvious.
166. In addition, Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez have actual knowledge of the substantial risk of serious harm to Ms. Star.
167. Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez failed to take reasonable safeguards to protect Ms. Star despite their knowledge of a substantial risk to her safety.
168. The actions and omissions of Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez are so grave that they violate contemporary standards of decency to expose anyone unwilling to a substantial risk of serious harm, and it is clearly established that such deliberate indifference is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
169. Defendants Bales, White, Armstrong, Fuster, Fox, Gonzales, Webb, and Lopez are disregarding the immediate and substantial risk of serious harm to Ms. Star and failing to act reasonably to prevent Ms. Star from being sexually and physically assaulted.
170. The Court should declare that the conduct of these Defendants as described in this First Claim for Relief violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
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171. Without preliminary and permanent injunctive relief, Ms. Star will most certainly continue to suffer severe irreparable harm for which she has no adequate remedy at law. Ms. Star is likely to succeed on the merits of her claim and, in any event, the balance between the harm to the Plaintiff in failing to grant injunctive relief greatly outweighs any potential harm to the Defendants in granting injunctive relief. Finally, the public interest is always served in holding governmental actors accountable for violating the constitutional rights of its citizens.
172. The Defendants should be preliminarily and permanently enjoined by Court order directing them to maintain Plaintiff in safekeeping status while she remains in TDCJ custody.
SECOND CLAIM FOR RELIEF Injunctive and Declaratory Relief Failure to Train, Supervise, and Enforce TDCJ Policies -
Deliberate Indifference U.S. Const. Amend. VIII (Against Defendants Livingston, Bales, White, Dean, and Fox in Their Official Capacities) 173. Plaintiff incorporates by reference all previous paragraphs of this Complaint as if fully set forth here. 174. Defendants Livingston, Bales, White, Dean, and Fox failed to train, supervise, and enforce TDCJ employees adequately regarding TDCJ policies and, specifically, measures to protect gay and transgender inmates from the substantial risk of serious harm. 175. Defendants Livingston, Bales, White, Dean, and Fox disregarded a known or obvious consequence of their failure to train and supervise their subordinates adequately and to enforce TDCJ policies.
176. As a consequence of the lack of proper training and/or supervision of TDCJ staff and enforcement of the TDCJ policies, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
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177. The Court should declare that the conduct of these Defendants as described in this Second Claim for Relief violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
178. Without preliminary and permanent injunctive relief, Ms. Star will most certainly continue to suffer severe irreparable harm for which she has no adequate remedy at law. Ms. Star is likely to succeed on the merits of her claim and, in any event, the balance between the harm to the Plaintiff in failing to grant injunctive relief greatly outweighs any potential harm to the Defendants in granting injunctive relief. Finally, the public interest is always served in holding governmental actors accountable for violating the constitutional rights of its citizens.
179. The Defendants should be preliminarily and permanently enjoined by Court order directing them to properly train and supervise TDCJ staff to enforce TDCJ’s zero-tolerance policy for sexual assault and physical violence for the duration of Ms. Star’s incarceration.
THIRD CLAIM FOR RELIEF Injunctive and Declaratory Relief Custom and Practice – Deliberate Indifference
U.S. Const. Amend. VIII (Against Defendants Livingston, Bales, White, Dean, and Fox
in Their Official Capacities) 175. Plaintiff incorporates by reference all previous paragraphs of this Complaint as if fully set forth here. 176. Contrary to the actual written TDCJ policies, Defendants Livingston, Bales, White, Dean, and Fox have adopted and permitted a widespread and pervasive custom and practice that deters inmates from filing complaints, denies them protection from sexual assault and physical abuse, refuses to investigate inmate complaints, and fails to staff and fund the facilities in a way that adequately protects against physical violence among inmates, including measures to protect gay and transgender inmates from the substantial risk of serious harm.
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177. Defendants Livingston, Bales, White, Dean, and Fox disregarded a known or obvious consequence of the widespread and pervasive custom and practice they have adopted or permitted to occur.
180. As a consequence of the widespread and pervasive custom and practice adopted by these defendants, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
181. The Court should declare that the conduct of these Defendants as described in this Third Claim for Relief violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
178. Without preliminary and permanent injunctive relief, Ms. Star will most certainly continue to suffer severe irreparable harm for which she has no adequate remedy at law. Ms. Star is likely to succeed on the merits of her claim and, in any event, the balance between the harm to the Plaintiff in failing to grant injunctive relief greatly outweighs any potential harm to the Defendants in granting injunctive relief. Finally, the public interest is always served in holding governmental actors accountable for violating the constitutional rights of its citizens.
179. The Defendants should be preliminarily and permanently enjoined by Court order from permitting this widespread and pervasive custom and practice to continue and be directed to enforce the existing written policy in all respects that ensures the safekeeping of inmates.
FOURTH CLAIM FOR RELIEF Damages and Declaratory Relief
U.S. Const. Amend. VIII (Against All Defendants in their personal capacities) 182. Plaintiff incorporates by reference all previous paragraphs of this Complaint as if fully set forth here. 183. With deliberate indifference to Ms. Star’s personal health and safety, Defendants
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Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez failed to protect her from substantial risk of serious harm in violation of her rights under the Eighth and the Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.
184. In addition, Defendants Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez had actual knowledge of the threats to Ms. Star and the substantial risk of serious harm to her.
185. Defendants Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez failed to take reasonable safeguards to protect Ms. Star despite their knowledge of a substantial risk to her safety.
186. The actions and omissions of Defendants Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Smith, Pickett, Walters, Fox, Gonzales, Webb, and Lopez are so grave that they violate contemporary standards of decency to expose anyone unwilling to a substantial risk of serious harm, and it is clearly established that such deliberate indifference is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
187. Defendants Livingston, Bales, White, Dean, and Fox failed to train, supervise, and enforce TDCJ employees adequately regarding TDCJ policies and, specifically, measures to protect gay and transgender inmates from the substantial risk of serious harm.
188. Defendants Livingston, Bales, White, Dean, and Fox disregarded a known or obvious consequence of their failure to train and supervise their subordinates adequately and to enforce TDCJ policies.
189. As a consequence of the lack of proper training and/or supervision of TDCJ staff
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and enforcement of the TDCJ policies, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
190. All Defendants were aware that violence in the prison was frequent and regular and that predatory gangs operated across TDCJ facilities and targeted vulnerable inmates, including Ms. Star, for violence, sexual assault, and sexual exploitation.
191. All Defendants were aware that gay men and transgender women housed in male correctional institutions, including Ms. Star, were particularly vulnerable to violence, sexual assault and sexual exploitation. The substantial risk of serious harm to Ms. Star was obvious.
192. The Court should declare that the conduct of All Defendants, as described in this Complaint and alleged in the First, Second, and Third Claims for Relief, above, violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The Court should further declare that the law proscribing All Defendants’ conduct was clearly established as unconstitutional at the time they engaged in such conduct.
193. Plaintiff was harmed and suffered damages as a result of all of the Defendants’ misconduct, including damages for the physical injuries, permanent disfigurement, excruciating emotional pain, and lasting psychic trauma. Thus, Plaintiff is entitled to recover compensatory damages against all Defendants in their personal capacities.
194. The Defendants acted with a malicious or evil intent or callous disregard of Plaintiff’s federally protected rights. Additionally, Defendants engaged in “oppressive” conduct that misused official authority or exploited the Plaintiff’s weakness. Accordingly, Plaintiff is entitled to an award of punitive damages against all Defendants in their personal capacities.
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IV. PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests the following relief from the Court:

1. A preliminary injunction pursuant to Fed. R. Civ. P. 65 enjoining Defendants from housing Ms. Star in the general population or, in the alternative, giving adequate notice to counsel of no less than fourteen days prior to any attempt to do so;

2. A permanent injunction directing Defendants to maintain Plaintiff in safekeeping status while she remains in TDCJ custody;

3. A declaratory judgment that the policies, practices, acts and omissions complained of herein violated Plaintiff’s rights;

4. Expungement of any disciplinary violations on Plaintiff’s record connected to Defendants’ failure to protect Plaintiff;

5. Appropriate medical and psychiatric treatment and counseling for Plaintiff’s physical and psychic injuries suffered as a result of Defendants’ acts and omissions;

6. Compensatory damages, including damages for the physical injuries, permanent disfigurement, excruciating emotional pain, and lasting psychic trauma, against each Defendant who is named in his or her personal capacity;

7. Punitive damages against each Defendant who is named in his or her personal capacity;

8. Reasonable attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and

9. Such further relief as the Court may deem just and proper.

Dated October 23, 2014.

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

By: _s/ Kenneth D. Upton, Jr. ______________ Kenneth D. Upton, Jr. Attorney in Charge Texas State Bar No. 00797972 Southern District of Texas No. 635808 kupton@lambdalegal.org

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Paul D. Castillo* 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219-6722 Telephone: (214) 219-8585 Facsimile: (214) 219-4455 Jael Humphrey-Skomer* 120 Wall Street, 19th Floor New York, NY 10005-3919 Telephone: (214) 809-8585 Facsimile: (214) 809-0055 and K&L GATES LLP 10100 Santa Monica Blvd., 7th Floor Los Angeles, California 90067 Telephone: (310) 552-5000 Facsimile: (310) 552-5001 Christopher J. Kondon* Christina N. Goodrich* Saman M. Rejali* *Pro hac vice application submitted separately ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE This is the Original Complaint. Plaintiffs’ Counsel will cause Summons to be served on each Defendant as required by Fed. R. Civ. P. 4.
s/ Kenneth D. Upton, Jr. _______ Kenneth D. Upton, Jr.
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 Case 4:14-cv-03037 Document 35 Filed in TXSD on 01/28/15 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

JOSHUA D. ZOLLICOFFER a/k/a PASSION STAR, Plaintiff,
versus
BRAD LIVINGSTON, personally and in his official capacity as Executive Director of the Texas Department of Criminal Justice (“TDCJ”);
WILLIAM STEPHENS, personally and in his official capacity as Director of TDCJ’s Correctional Institution Division;
LYNNE SHARP, personally and in her official capacity as TDCJ Safe Prisons/PREA Manager and PREA Ombudsman;
RALPH BALES, in his personal capacity; JONI WHITE, personally and in her official
capacity as Assistant Director of TDCJ’s Classification and Records Department; ROBERT EASON, personally and in his official capacity as Deputy Director Prison and Jail Operations of TDCJ; LORIE DAVIS, personally and in her official capacity as Deputy Director Management Operations of TDCJ; BRUCE ARMSTRONG, in his personal capacity; FERNANDO FUSTER, in his personal capacity; KENNETH DEAN, in his personal capacity; BRIAN BLANCHARD, in his personal capacity; RENE MALDONADO, in his personal capacity; RALPH MAREZ, JR., in his personal capacity; JAMES SIGMUND, in his personal capacity; PRINCE PICKETT, in his personal capacity; and LESLIE WALTERS, in her personal capacity,
Defendants.

Case No. 4:14-cv-03037
Jury Trial Demanded
PLAINTIFF’S AMENDED COMPLAINT FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY JUDGMENT, AND DAMAGES

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1. Plaintiff Joshua Zollicoffer a/k/a Passion Star (“Ms. Star” or “Plaintiff”)1 is a thirty-one-year-old transgender woman in the custody of the Texas Department of Criminal Justice (“TDCJ”) who has been brutally attacked by men incarcerated with her and continues to be tormented with escalating threats of assault, rape, and murder. Ms. Star has repeatedly begged TDCJ officials to protect her.
2. Deliberately indifferent to these harms, the defendants have repeatedly refused to place Ms. Star in a secure housing placement, known as “safekeeping”2 or take other reasonable steps to reduce the acts and threats of harm to her. Instead, the defendants have forced Ms. Star to remain in the general population near her aggressors, where she has faced documented serious injuries and escalating risks of additional serious harm.
3. Further, despite knowing that TDCJ prisons have exceptionally high rates of inmate-on-inmate assault, particularly against lesbian, gay, bisexual, transgender (“LGBT”), and gender-nonconforming people in custody, TDCJ officials condoned, ratified, and/or adopted widespread practices and customs that caused Ms. Star to be harmed and failed to train and/or supervise officers on policies and procedures that could have prevented the harm to her.
4. By this action, Ms. Star seeks preliminary and permanent injunctive relief to stop the defendants’ ongoing constitutional violations, along with declaratory relief and damages.
I. JURISDICTION AND VENUE 5. Plaintiff brings this action seeking preliminary and permanent injunctive relief,
1 Although Plaintiff’s legal name is Joshua D. Zollicoffer, she is known by and uses the name Passion Star in accordance with her female gender identity. Accordingly, this complaint refers to Plaintiff as Ms. Star and uses female pronouns to refer to her. 2 Safekeeping status is a housing status assigned to individuals in custody who need protection from other inmates in the general population, and whose need for protection could be met by housing them separately. In addition, safekeeping offenders receive their recreation time and meals apart from the general population.
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declaratory relief, and damages pursuant to 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution.
6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201.
7. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the relevant events occurred within the district, and pursuant to 28 U.S.C. § 1391(b)(1) because Defendants Livingston, Stephens, Sharp, Bales, White, Eason, Davis, Armstrong, and Fuster reside in and have or had offices in this district, and all defendants are residents of Texas. Moreover, Huntsville is the location of TDCJ’s headquarters and one of its administrative offices.
8. This Court has personal jurisdiction over each and every defendant because, upon information and belief, all defendants are residents of Texas and were employed in Texas acting under color of state law during all relevant times.
II. THE PARTIES 9. PLAINTIFF PASSION STAR, a citizen of Texas, is a transgender woman in the custody of TDCJ. From approximately 2011 to 2013, Ms. Star was housed in the Hughes Unit in Gatesville, Texas (“Hughes”). On or around December 6, 2013, she was moved to the Robertson Unit in Abilene, Texas (“Robertson”). On or around November 17, 2014, Ms. Star was transferred to the Clements Unit (“Clements”) in Amarillo, Texas, where she is currently housed. 10. DEFENDANT BRAD LIVINGSTON (“Livingston”) is the Executive Director of TDCJ. As such, Defendant Livingston is the commanding officer of all TDCJ correctional officers, guards, and TDCJ employees and contractors, and is responsible for their training, supervision, and conduct. He has ultimate responsibility within TDCJ for overseeing the day-to-
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day operation of state prison facilities, including the Hughes, Robertson, and Clements facilities, and is responsible for ensuring that people incarcerated in TDCJ facilities are protected from sexual assault and other violence and that correctional officers adhere to federal and state law, as well as official TDCJ policy. Livingston has testified in connection with the high prevalence of sexual assault in TDCJ facilities and the deficiencies with the implementation of Prison Rape Elimination Act (“PREA”) in Texas. Defendant Livingston maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
11. DEFENDANT WILLIAM STEPHENS (“Stephens”) is Director of Correctional Institutions Division of TDCJ. As such, Defendant Stephens is responsible for their training, supervision, and conduct of all TDCJ correctional officers, guards, and TDCJ employees and contractors. He has ultimate responsibility within TDCJ for overseeing the day-to-day operation of state prison facilities, including Hughes, Robertson, and Clements, and is responsible for ensuring that people incarcerated in TDCJ facilities are protected from sexual assault and other violence and that correctional officers adhere to federal and state law, as well as official TDCJ policy. He is responsible for the Safe Prisons/PREA Management Office, Classification and Records, Correctional Training and Staff Development, and the Security Threat Group Management Office. Defendant Stephens maintains an office in Walker County, Texas and, upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
12. DEFENDANT LYNNE SHARP (“Sharp”) was the TDCJ Safe Prisons/PREA Manager during relevant times for this action. As the TDCJ Safe Prisons/PREA Manager, she was responsible for the implementation and enforcement of TDCJ’s Safe Prisons/PREA Plan,
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enforcing TDCJ “zero tolerance policy” toward sexual abuse and sexual harassment, and overseeing unit and regional Safe Prisons/PREA managers at TDCJ facilities, including Hughes, Robertson, and Clements. Defendant Sharp, now the PREA Ombudsman for TDCJ facilities, including Hughes, Robertson, and Clements, maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. She is sued in her official and personal capacities.
13. DEFENDANT RALPH BALES (“Bales”) was the PREA Ombudsman during relevant times for this action and had been appointed by the Texas Board of Criminal Justice to respond to and eliminate the occurrence of sexual assault in correctional facilities. The primary responsibilities of the PREA Ombudsman are to monitor department policies for the prevention of sexual assault in correctional facilities; oversee the administrative investigation of inmate complaints of sexual abuse; ensure the impartial resolution of inmate complaints of sexual assaults; and collect statistics regarding all allegations of sexual abuse from TDCJ correctional facilities, including Hughes, Robertson, and Clements. Defendant Bales maintained an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. He is sued in his personal capacity.
14. DEFENDANT JONI WHITE (“White”) is Assistant Director of TDCJ’s Classification and Records Department. She is responsible for supervising the management of the State Classification Committee (“SCC”), Classification and Intake Operations, and the Classification Records Office. She is also responsible for the overall management and application of all TDCJ classification plans, policies, and procedures. Defendant White maintains an office in Walker County, Texas, and resides in Walker County, Texas. She is sued in her official and personal capacities.
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15. DEFENDANT ROBERT EASON (“Eason”) is the Deputy Director of the Prison and Jail Operations Department in the Correctional Institutions Division of the TDCJ. As such, he is responsible for overseeing, inter alia, the six Regional Directors, and managing secure prisons, and other correctional facilities, in the state of Texas. He also oversees the security operations department in the TDCJ. Defendant Eason maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. He is sued in his official and personal capacities.
16. DEFENDANT LORIE DAVIS (“Davis”) is the Deputy Director of the Management Operations Department in the Correctional Institutions Division of the TDCJ. As such, she is responsible for overseeing, inter alia, Correctional Training and Staff Development, Plans and Operations, Safe Prisons/PREA Management Office, and Security Threat Group Management Office in the TDCJ. Defendant Davis previously served as the director of the TDCJ Correctional Institutions Division’s Correctional Training and Staff Development Department, which provided training services to TDCJ employees. Defendant Davis maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. She is sued in her official and personal capacities.
17. DEFENDANT BRUCE ARMSTRONG (“Armstrong”) is an Assistant Regional Director in the Correctional Institutions Division. As such, he is responsible for overseeing the operations and safety of the units with his region, which include Hughes and Robertson. Defendant Armstrong personally participated in the denial of one or more of Plaintiff’s grievances as discussed below. Defendant Armstrong maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. He is sued in his personal capacity.
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18. DEFENDANT FERNANDO FUSTER (“Fuster”) is an Assistant Regional Director in the Correctional Institutions Division. As such, he is responsible for overseeing the operations and safety of the units within his region, which include Hughes and Robertson. Defendant Fuster personally participated in the denial of one or more of Plaintiff’s grievances as discussed below. Defendant Fuster maintains an office in Walker County, Texas, and upon information and belief, resides in Walker County, Texas. He is sued in his personal capacity.
19. DEFENDANT KENNETH DEAN (“Dean”) was a Senior Warden at Hughes during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
20. DEFENDANT BRIAN BLANCHARD (“Blanchard”) was an Assistant Warden at Hughes during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
21. DEFENDANT RENE MALDONADO (“Maldonado”) was an Assistant Warden at Hughes during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
22. DEFENDANT RALPH MAREZ, JR. (“Marez”) was a Major at Hughes during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
23. DEFENDANT JAMES SIGMUND (“Sigmund”) was a Captain at Hughes during all relevant times and, upon information and belief, is a resident of Texas. He is sued in his personal capacity.
24. DEFENDANT PRINCE PICKETT (“Pickett”) was a Sergeant supervising the 8 Building at Hughes during all relevant times and, upon information and belief, is a resident of
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Texas. He is sued in his personal capacity. 25. DEFENDANT LESLIE WALTERS (“Walters”) was a Classification Secretary
at Hughes during all relevant times and, upon information and belief, is a resident of Texas. She is sued in her personal capacity.
26. At all relevant times, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, Walters (collectively, “Defendants”) acted under color of state law.
27. Plaintiff does not seek monetary damages against Defendants in their official capacities.
III. FACTUAL BACKGROUND 28. Ms. Star is a woman, who is black and transgender. She is transgender because she was assigned the sex of male at birth, but identifies as a woman.3 29. On or around December 3, 2002, a week after her nineteenth birthday, Ms. Star was sentenced to twenty years in prison and placed in the custody of TDCJ.4 Since 2002, Ms. Star has been housed in at least seven sex-segregated male TDCJ facilities. From 2003 to 2006, she was housed in the Telford Unit in New Boston, Texas (“Telford”). From 2006 to 2007, she was housed in the Allred Unit in Iowa Park, Texas (“Allred”). From 2007 to 2008, she was housed in the Smith Unit in Lamesa, Texas (“Smith”). From 2008 to 2011, she was housed in the
3 At earlier periods, when Ms. Star was less public about her transgender identity, she sometimes referred to herself in grievances and other written complaints as a gay man or a gay man with a female alias. While gender identity and sexual orientation are not the same, either identity places Ms. Star in a category of inmates who are recognized as particularly vulnerable to sexual abuse. 4 The conviction, which was for aggravated kidnapping, arose from allegations that, on or around August 16, 2002, Ms. Star’s boyfriend at the time refused to return a used Chevrolet that he was test driving to the Chevrolet dealership. Instead, he drove for nearly two hours with the salesman trapped in the passenger seat and Ms. Star in the back seat.
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Coffield Unit in Tennessee Colony, Texas (“Coffield”). From 2011 to 2013, she was housed in Hughes in Gatesville, Texas. From December 2013 to November 2014, she was housed in Robertson in Abilene, Texas. In November 2014, she was transferred to Clements in Amarillo, Texas.
30. In every facility, male inmates have identified Ms. Star as feminine and demanded that she perform sexual acts for them or pay them for protection against such demands and the repercussions of not acceding to such demands.
31. TDCJ employees have taken inadequate steps to protect Ms. Star, including but not limited to, transferring her into the general population in different units and different pods/buildings despite knowing that she would face the same threats and violence, rather than placing Ms. Star in safekeeping or taking other reasonable steps to reduce the acts and threats of harm to her. TDCJ employees, including Defendants, have been willfully blind to the ongoing danger that Ms. Star faces, including the danger produced by the transfers themselves, which put the spotlight on Ms. Star whenever she is introduced to a new unit or pod/building, faced with the same demands for sexual favors that she has faced in each of the prior units and pods/buildings.
Incidents Prior to Ms. Star’s Placement in Hughes and Robertson that Put Defendants on Notice of Her Vulnerability to Sexual Assault
32. Prior to her transfer to Hughes, while in TDCJ custody, Ms. Star was raped, sexually assaulted, forced into coercive sexual relationships, and threatened with violence by other TDCJ inmates. Despite Ms. Star’s numerous complaints to TDCJ officials, insufficient action was taken to protect her from the substantial risk of further serious harm.
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33. For example, while housed in Telford, a gang member known as D.D.5 threatened to hurt Ms. Star if she did not perform sexual acts for him or pay him with commissary items. Ms. Star complained to prison officials about threats from D.D. and other inmates and told them that she was gay with a female alias and feared for her safety. Prison officials did nothing to reduce the threats of harm to Ms. Star and disciplined Ms. Star for declining to leave her cell because she feared serious harm from D.D.
34. In an effort to gain protection from D.D. and other inmates, Ms. Star submitted to a coerced sexual relationship with a gang member known as M.M. When Ms. Star attempted to end that relationship, M.M. choked her until she agreed to remain in a sexual relationship with him.
35. In Allred, gang members, including P.X., identified Ms. Star as feminine and threatened to harm her if she did not perform sexual acts for the gang. Ms. Star informed correctional officers that she had received repeated threats, that she was gay, and that she feared for her life. She asked them to place her in safekeeping, but her requests were denied. Ms. Wright, a TDCJ employee in the Allred Unit, told her, “You’re black; you’ll be alright.”
36. In or about March 2007, TDCJ officials assigned Ms. Star to share a cell with an inmate named C.X., a member of another gang, who began to harass and sexually proposition her. Ms. Star informed a guard that she felt unsafe around her cellmate, but the guard refused to move Ms. Star to another cell or to remove her cellmate from the cell.
37. Approximately two days later, on March 29, 2007, C.X. threatened Ms. Star with a knife, held her down, and raped her. After Ms. Star reported the rape to a guard, begging him to
5 In an attempt to avoid further retaliation and violence from inmates who have already threatened and/or harmed her, Plaintiff has used initials to identify these inmates.
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help her, C.X. threw a fan at Ms. Star, cutting her head. 38. Linda Remmert, a nurse at the Correctional Managed Care Clinic, treated Ms.
Star on March 29, 2007, the night of the rape. The nurse noted “dried secretions to anal area” and an abrasion at the top of Ms. Star’s head. The nurse examining Ms. Star the next day noted “due to assault on 03/29/07 inmate feels unsafe around others.”
39. After the rape, TDCJ officials moved Ms. Star into solitary confinement for approximately two weeks, leaving her alone, frightened, and emotionally distressed. She wrote letters asking that C.X. be prosecuted for the rape, but was never informed whether or not he was disciplined for raping her.
40. Approximately two weeks later, despite her request to be placed in safekeeping, TDCJ officials transferred Ms. Star into the general population of a new facility, Smith. Inmates there again threatened Ms. Star with violence if she did not perform sex acts or pay for protection. Her cellmate, O.R., threatened to rape Ms. Star and forced her to watch him masturbate. Another inmate, P.O.X., demanded that Ms. Star perform sex acts for him if she did not want to be hurt. Ms. Star reported the threats to TDCJ staff verbally and in writing, but officials refused to take the actions necessary to help her.
41. Correctional officers responded to Ms. Star’s requests for protection by telling her “you can’t rape someone who’s gay,” telling her she was having the time of her life, frequently calling her “faggot,” and suggesting she was enjoying the attention.
42. In 2008, Ms. Star was transferred into the general population in Coffield, where she was again threatened with sexual assault by an inmate named T.K. In part because he threatened her and in part because he offered to protect her from other predatory men, Ms. Star entered a coerced sexual relationship with T.K. When Ms. Star tried to end the relationship, T.K.
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punched her on the left side of her jaw, breaking one of her teeth and causing it to puncture her lip. In fear for her well-being, Ms. Star returned to the coerced sexual relationship with T.K.
Defendants’ Failures to Protect Ms. Star From Assaults and Threats Directed at Her by Other Inmates in Hughes Between 2011 and November 15, 2013
43. In approximately July 2011, TDCJ officials transferred Ms. Star to Hughes, where she experienced more threats and attempts to sexually exploit her. Ms. Star lived in constant fear that she would be raped again or seriously harmed.
44. Ms. Star was threatened by various incarcerated people associated with the Crips gang. One member, known as T.X., called her “faggot” and regularly threatened to assault her. On December 25, 2011, T.X. attacked Ms. Star, punching her in the head, face, and torso. Ms. Star reported the threats and the assault to TDCJ officials verbally and in writing.
45. On February 3, 2012, Ms. Star submitted a grievance in which she described threats she was receiving from gang members and requested to be placed in safekeeping; Ms. Star explained that she is gay, not affiliated with a gang, and did not feel safe. On February 8, 2012, Defendant Blanchard denied the grievance, writing, “No action taken due to lack of evidence. No further action will be taken at this time.”
46. Upon information and belief, Defendant Blanchard did not investigate Ms. Star’s claims prior to denying her grievance, despite his obligation to do so, and despite the fact that Ms. Star had a documented history of being raped and threatened with violence. Moreover, Defendant Blanchard’s denial of the grievance due to “lack of evidence” was unreasonable because it is unclear what other evidence could be required in order for Ms. Star to prove that she was entitled to protection from further assaults and threats.
47. Ms. Star requested in writing approximately five times between December 2012 and May 2013 that she be transferred to a dormitory. Upon information and belief, dormitories
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are safer than the cell blocks because they are patrolled more frequently by TDCJ staff and have more security cameras than cell blocks. Ms. Star’s requests were denied, despite her documented history of being sexually abused, assaulted, and threatened, and her vulnerable status. Ms. Star complained to Defendant Marez and to the grievance committee about the denial of her requests to be moved to dormitories and the threats to her safety.
48. In or around March 2012, Bloods gang members, including E.H., demanded that Ms. Star pay for their protection or “ride,” meaning perform sexual acts for them. In or around March 2013, Ms. Star also complained to correctional officers about threats she was receiving from R.B., who was incarcerated in the unit. In or around 2013, a Bloods gang member known as A.X. began writing sexually explicit letters to Ms. Star, demanding that she perform sexual acts for him in return for his protection. Another Blood, known as C.Y.X., made similar demands of Ms. Star.
49. Ms. Star informed TDCJ officials of the threats and demands, including Officer Thompson on or around April 19, 2013, and requested to be moved out of the general population and placed in safekeeping. TDCJ staff did not take reasonable steps to protect her and instead placed Ms. Star at risk for further assault. For example, Lieutenant Aragon called Ms. Star a “snitch” and a “punk” in front of other inmates during lineup, and Sergeant Lopez told Ms. Star in front of other inmates that she should “stop doing gay shit” or fight, instructions which left her vulnerable to sexual assault and disciplinary sanction. Officer Thompson and other officers routinely pretended to grab Ms. Star’s buttocks, which they referred to as the “grab-ass” game.
50. On May 12, 2013, C.Y.X. and A.X. jointly confronted Ms. Star while she was at church and accused her of “snitching” on them. C.Y.X. said that a correctional officer had informed C.Y.X. that Ms. Star had reported that C.Y.X. was a gang member who threatened to
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sneak into her pod and assault her any chance that he got. A.X. punched Ms. Star on the right side of her jaw, causing swelling and pain to her jaw and face.
51. Ms. Star went to the infirmary after the assault. She reported the attack and the threats to TDCJ officials verbally and in writing.
52. Defendant Blanchard, who had reviewed previous requests for protection from Ms. Star, denied her grievance on May 20, 2013, using formulaic language: “[T]here was no evidence or witnesses presented to substantiate your claims. No further action is warranted at this time.” Defendant Blanchard failed to actively investigate Ms. Star’s complaints and was deliberately indifferent to her obvious vulnerability based on her gender identity, perceived sexual orientation, history of victimization, and the physical evidence of the assault by A.X. He also imposed an unreasonable standard to be entitled to protection—that in order to be entitled to protection from threats and assaults, an inmate must have corroborating witnesses to threats and assaults that rarely have corroborating witnesses, especially when witnesses are threatened with being labeled a “snitch” and being assaulted because they have snitched.
53. In October 2013, an inmate known as C.F. threatened to assault Ms. Star if she did not perform sexual acts for him. When she refused, he attacked her on October 2, 2013 in the hallway by the dining hall, cutting her lip and her left hand, causing swelling and bruising on the left side of her face and jaw line and a knot on the left side of her head.
54. Ms. Star filed a grievance regarding the assault and threats from C.F. On October 22, 2013, Defendant Blanchard responded that “evidence was insufficient” and again decided that no action was warranted to protect Ms. Star. Defendant Blanchard again imposed an unreasonable standard and was deliberately indifferent to Ms. Star’s obvious vulnerability based on her gender identity, perceived sexual orientation, history of victimization, and the physical
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evidence of her injuries. 55. On October 17, 2013, in desperation, Ms. Star wrote a letter to Defendant Dean,
the Senior Warden at Hughes, explaining that she feared violence because of her sexual orientation and requesting to meet with him to discuss the possibility of being placed in safekeeping. He did not meet with her, nor did he place her in safekeeping or take other reasonable action to protect her from further threats and harm.
56. Ms. Star continued to receive threats and unwanted sexual advances from inmates in the general population at Hughes. For example, in 2013, J.T., a member of the Crips gang, sexually propositioned Ms. Star whenever he saw her.
57. On November 4, 2013, Ms. Star attended a meeting with the Unit Classification Committee (“UCC”), headed by Defendant Marez. She told Defendant Marez and the other members of the UCC that she was gay with a female alias, that she had been raped by inmates in the past, and that she had been repeatedly threatened with sexual and other violence. She explained that she feared for her life and requested to be reassigned to safekeeping and protected.
58. Defendant Marez and the other members of the UCC denied Ms. Star’s request for safekeeping, refusing to take steps necessary to protect her and forcing her back into the general population.
59. Ms. Star submitted a written grievance on November 6, 2013, appealing the UCC’s November 4, 2013, decision to deny her safekeeping request. It stated:
I am gay and have been taken advantage of in the past. . . . My documented alias is ‘Passion’ which is not masculine at all. All of my problems stem from being a homosexual in a general population of offenders who have constantly attempted to take advantage of me or request sexual favors. . . . During my time in prison, . . . I have only been moved from 1 pod to another or section in general population where these same offenders and their gang affiliated homeboys still have easy access to get to me. TDCJ does not control the gang influenced general population enough to ensure . . . homosexual offenders safety from being
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assaulted, threatened or extorted. 60. On November 13, 2013, during a church service, J.T. threatened Ms. Star again. He said loudly in front of other Crips that Ms. Star “belonged” to him. He told her that refusal was not an option and that, since she was gay, she had to “stay in a ho’s place.” 61. The next day, November 14, 2013, Defendant Blanchard denied Ms. Star’s November 6, 2014 grievance, responding solely: “You did not meet the criteria to be placed in safekeeping.” Defendant Blanchard did not explain what the criteria were or inform Ms. Star of any recourse she might take to obtain protection against assault. 62. On November 15, 2013, Officer Johnson and Officer Deevers, members of the Security Threat Group, were sent to interview Ms. Star about the gang threats to her as a result of an offender protection investigation initiated by her building supervisor. Instead of taking Ms. Star seriously, Officer Johnson told her, “You’ve fought once. Fight again,” again putting Ms. Star at risk of sexual assault and disciplinary sanction. Officer Deevers told Ms. Star that they had no intent of forwarding Ms. Star’s request for help to the Safe Prisons Program. 63. Ms. Star appealed the UCC’s denial of her request to be in safekeeping to the State Classification Committee (“SCC”) on November 15, 2013, stating that she lives with the “constant threat of being hurt” because she is gay and effeminate in the general population. She also explained that she has been forced “to be sexually active in the past to ensure [her] safety and to protect [herself] from aggressive cellies.” November 19 and 20, 2013: Pleas for Safekeeping are Ignored, with Horrific Results 64. On November 19, 2013, Ms. Star again appeared in front of the UCC, composed of Defendant Blanchard, Defendant Walters, and Defendant Sigmund. Ms. Star told them about the threats she received from J.T. and other inmates and again requested to be placed in
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safekeeping. Defendant Blanchard, Defendant Walters, and Defendant Sigmund denied Ms. Star’s request for protection and ordered her to be returned to “the next available cell” in her custody level in the general population.
65. Prior to reporting the threats, Ms. Star and J.T. were housed on different pods. On November 19, 2013, TDCJ officials, including Defendants Blanchard, Walters, and Sigmund, in deliberate indifference to the substantial risk to Ms. Star’s safety, moved her into 8 Building, L-Pod, where J.T., the specifically identified person from whom she was seeking protection, was housed.
66. On this same day, November 19, 2013, on her way to dinner, Ms. Star appealed to Defendant Pickett, the 8 Building supervisor, for help. She explained the history of violence and threats directed against her by other inmates in Hughes and told him that she had already received threats from Crips gang members, that day, since being moved to L Pod. Defendant Pickett told her that it was “not [his] problem” and refused to do anything to help her.
67. That evening, Ms. Star filed an emergency grievance appealing the UCC’s denial, again requesting to be moved to safekeeping, and explaining the threats that she had received from J.T. and other Crips.
68. The very next morning, November 20, 2013, the assault that she had been begging to be protected from occurred. J.T. and other Crips gang members brutally attacked Ms. Star from behind as she headed to breakfast. J.T. called her a “snitching faggot.” As other members of J.T.’s gang watched, J.T. repeatedly slashed Ms. Star’s face with a razor while she struggled (the “Razor Attack”). One cut came within a quarter of an inch of her right eye. Ms. Star bled profusely and suffered intense pain.
69. As a result of the brutal Razor Attack, Ms. Star was taken to Correctional
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Managed Care. The nurse who treated Ms. Star, on November 20, 2013, noted “lacerations to the facial area,” that required a total of 36 sutures. These included a laceration to the top of her right forehead, 5-½ centimeters long, closed with 8 sutures; one above her right eyebrow, 5-¼ centimeters long, closed with 9 sutures; one on the outer edge of her right eye, 4 centimeters long, closed with 7 sutures; and two below her right eye, both 5 centimeters long, closed with 8 sutures and 4 sutures, respectively. The nurse also noted a one-centimeter laceration on the top of Ms. Star’s right ear crease, which was closed with Dermabond, and two additional lacerations deemed superficial, on the top of her head and on her right check.
70. Despite the sutures and Dermabond, several of the lacerations reopened, causing Ms. Star to bleed further. These lacerations are leaving prominent, raised scars on her face, which are likely to be permanent.
71. After the Razor Attack, Defendant Sigmund brought Ms. Star her property. Ms. Star told Defendant Sigmund to look at her and said that she would have to live with this— meaning the lacerations and scarring—for the rest of her life. Defendant Sigmund said only, “Ah, man,” and left.
72. On November 22, 2013, two days after the Razor Attack occurred, Defendant Maldonado denied the grievance requesting assignment to safekeeping that Ms. Star had submitted on November 19, 2013, prior to the Razor Attack. Defendant Maldonado wrote, “You were seen by UCC on 11/19/13.… The committee did not find sufficient evidence to support your allegations. Due to lack of evidence you were released from transient and scheduled to move to the next available cell in your custody.”
73. Defendant Maldonado failed to mention that since grieving the UCC’s decision to deny her protection on November 19, 2013, the attack that Ms. Star had warned would happen
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had indeed happened. Defendant Maldonado failed to conduct an active investigation into Ms. Star’s urgent pleas for help and was deliberately indifferent to her statements that she was in danger despite her vulnerable status based on her gender identity, perceived sexual orientation, and history of victimization, and the recent mutilation of her face by J.T.
74. On November 22, 2013, Ms. Star was again taken in front of the UCC, composed of Defendant Blanchard, Defendant Walters and Defendant Sigmund. Ms. Star again informed Defendant Blanchard, Defendant Walters, and Defendant Sigmund of the assaults and the threats against her, including the Razor Attack, and requested to be placed in safekeeping.
75. Despite the recent attack, the razor wounds, and Ms. Star’s obvious vulnerability, Defendant Blanchard, Defendant Walters, and Defendant Sigmund again denied Ms. Star’s request to be housed in safekeeping. Defendant Blanchard, Defendant Walters, and Defendant Sigmund instead recommended that Ms. Star be transferred to the general population of another unit.
76. Defendant Blanchard, Defendant Walters, and Defendant Sigmund recommended unit transfer even though they knew that gay men and transgender women were generally vulnerable to sexual assault, that gangs operated throughout TDCJ, and that Ms. Star would be targeted by members of J.T.’s gang in the new unit. Upon information and belief, Defendant Blanchard, Defendant Walters, and Defendant Sigmund were aware that transferring Ms. Star to the general population of a different unit had been ineffective to protect Ms. Star in the past and would be ineffective to protect her from further serious harms. While informing Ms. Star on November 22, 2013, of the UCC’s decision to transfer her rather than place her in safekeeping, Defendant Blanchard taunted Ms. Star, “Now I bet you really feel like
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your life is in danger.” 77. On November 26, 2013, Defendant Maldonado concluded, when reviewing a
grievance submitted by Ms. Star on November 20, 2013 after the Razor Attack, that at last there was “sufficient evidence” to support Ms. Star’s claims, but instead of approving Ms. Star’s request to be placed in safekeeping, Defendant Maldonado recommended that Ms. Star be transferred to the general population in a different unit. Defendant Maldonado denied the request for safekeeping even though he was aware that transferring Ms. Star to the general population of a different unit had been ineffective to protect Ms. Star in the past and would be ineffective to protect her from future harm.
78. On November 29, 2013, Ms. Star appealed the decision to send her to general population in a new unit, stating that:
simply recommending that I be transferred off the unit isn’t enough to ensure that I am no longer victimized.… I followed instruction and was placed back into a position to be hurt—knowingly. So, I request safekeeping away from the general population of offenders that have victimized me and will continue to do so. 79. Defendant Armstrong, who had previously reviewed other grievances appealed by Ms. Star to the SCC and was on notice that Ms. Star was particularly vulnerable to abuse in the general population, reviewed Ms. Star’s November 29, 2013 grievance. On January 8, 2014, Defendant Armstrong denied Ms. Star’s appeal, indicating that Ms. Star had been designated “not for same unit” as J.T., transferred to Robertson, and that no further action was warranted. Defendant Armstrong disregarded the fact that transferring Ms. Star to a new unit would not protect her, rubber-stamped the UCC’s actions, failed to actively investigate Ms. Star’s claims, and was deliberately indifferent to the significant threat of serious harm to Ms. Star.
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Defendants’ Failures to Protect Ms. Star From Assaults and Threats Directed at Ms. Star by Other Inmates in Robertson 80. On December 6, 2013, TDCJ officials transferred Ms. Star to the general population in Robertson. TDCJ officials did not use the relevant information available at intake, including Ms. Star’s history of sexual abuse and gender identity to screen her for vulnerability and separate her from likely aggressors. 81. J.T., the instigator of the Razor Attack, had been housed in the general population of Robertson prior to his transfer to Hughes, and he was well known at Robertson as a highranking member of the Crips gang. 82. Soon after she arrived in Robertson, Crip gang member T.T. spread the word among the Crips in Robertson that Ms. Star was a “snitching faggot” and told Ms. Star that the Crips at Robertson would finish what J.T. started. 83. Inmates in Robertson also identified her as feminine and aggressively propositioned her for sex. For example, from January to March 2014, a Crips gang member known as C.G.X. repeatedly pressured Ms. Star to perform sexual acts for him in return for her safety. C.G.X. told Ms. Star that she had to find a man to protect her, or be raped. 84. Ms. Star informed correctional officers of the threats against her, but they failed to take reasonable steps to protect her. 85. On or around December 11, 2013, in response to her request for an offender protection investigation (“OPI”), Defendant Lopez told Ms. Star to “suck dick, fight or quit doing gay shit and you’ll be okay but quit running me with OPIs,” again putting Ms. Star in the unreasonable position of risking disciplinary action for fighting back. 86. On December 12, 2013, Ms. Star appeared before the UCC in Robertson and explained that she was gay, had a history of sexual and physical assaults in other TDCJ facilities,
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including the recent Razor Attack by J.T., as well as the sexual coercion she had experienced at the hands of other TDCJ inmates, and was afraid that she would be targeted by the Crips in Robertson once they learned about the incident with J.T. Ms. Star explained that she feared for her life, and requested to be placed in safekeeping, but her request was denied.
87. Ms. Star filed and appealed additional grievances in which she explained that J.T. had until recently been a high ranking member of the Crips gang on Robertson, members of the Crips gang associated with J.T. were housed in close proximity to her, and that she feared that she would be attacked again. Defendant Armstrong, on behalf of the SCC, disregarded the substantial risk of serious harm to Ms. Star and denied Ms. Star’s grievances in which she sought additional protection on or around January 30, 2014, February 6, 2014, and February 21, 2014.
88. In or around March 2014, an inmate known as P.N., also a member of the Crips, sent Ms. Star a letter threatening to kill Ms. Star. Ms. Star gave the letter from P.N. to Officer Scott, a member of the Security Threat Group, on or around March 27, 2014, and asked for help and protection, but he did not take action to help her.
89. In desperation and fear, Ms. Star sent letters to the Safe Prisons Program Coordinator, Defendant White at the SCC, and Defendant Bales, the PREA ombudsman, begging for help.
90. On April 7, 2014, Ms. Star appeared in front of the UCC at Robertson, headed by Assistant Warden Gonzales, and again explained the threats to her safety and begged to be placed in safekeeping. The UCC denied Ms. Star’s request to be placed in safekeeping, but recommended that the SCC approve her for transfer to the general population of yet another new unit.
91. Ms. Star renewed her plea to be placed in safekeeping and informed the SCC that
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transferring her to general population in a new unit would not be sufficient to protect her. On April 9, 2014, she wrote in a grievance that the dangers to her were
all rooted in the fact that I am a homosexual housed in the gang influenced general population of offenders… Just recommending that I be transferred to another unit will not ensure my safety, just as it did not after the 3-29-07 sexual assault, nor after the 11-20-13 assault with a weapon. I am an offender with a ‘potential for victimization’, otherwise I wouldn’t be constantly victimized and threatened by other offenders. 92. Soon after, Ms. Star received a response from Defendant Bales dated April 8, 2014, acknowledging receipt of her letters to him dated March 27, 2014, and March 28, 2014, in which she described her history and the threats to which she had been subjected at Robertson. Defendant Bales wrote that the “unit administration was unable to substantiate the allegations,” explaining that “‘unsubstantiated’ means there was insufficient evidence to determine if the incident occurred or did not occur.” In deliberate indifference to Ms. Star’s safety, the PREA Ombudsman failed to conduct an active or independent investigation or to take Ms. Star’s claims seriously, despite the history of victimization, vulnerability, and clear evidence of her prior injuries. Instead, Defendant Bales informed Ms. Star that the inquiry would be closed and no further action would be taken. 93. Ms. Star again sent a letter to Defendant Bales on May 13, 2014, writing that she had been called a “snitching faggot … told that I need to find a man and threatened with rape.” 94. On May 30, 2014, Defendant Armstrong denied Ms. Star’s appeal to the SCC. Defendant Armstrong informed Ms. Star in writing that the SCC had not only rejected Ms. Star’s request to be moved to safekeeping, but had also rejected the UCC’s recommendation that Ms. Star be transferred to a different unit. Despite being aware of Ms. Star’s history of being threatened and assaulted, including the assault in Hughes, Defendant Armstrong instructed that Ms. Star should be placed back in the general population in Robertson in the midst of the
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incarcerated people Defendant Armstrong had been informed were threatening Ms. Star’s life. 95. On or about June, 5, 2014, Ms. Star again appeared in front of the UCC at
Robertson headed by Assistant Warden Gonzales and explained the threats that she was receiving and her fear for her safety. This time the UCC agreed that Ms. Star should be placed in safekeeping as a result of vulnerability and the risk of serious harm to her and sent a recommendation to the SCC that Ms. Star be transferred to safekeeping.
96. On or around June 17, 2014, Warden Fox informed Ms. Star that the SCC had denied the UCC’s recommendation to place her in safekeeping, meaning that the staff at the SCC thought that Ms. Star should remain in the general population in Robertson even though they knew that her life was at risk.
97. After the SCC denied the UCC’s recommendation of unit transfer, the Senior Warden at Robertson moved Ms. Star to a different building, Building 3, in the general population at Robertson on or about June 17, 2014.
98. Soon after she arrived in Building 3, T.T. spread word to the Crips gang members there that Passion was a “snitching faggot” who should be killed. A Crips gang member in Building 3, known as T.K.X., told Ms. Star that she would be killed. He called her a “snitch” and a “faggot” and said that she could not “run forever” but would sooner or later “have to face the consequences” because she rejected J.T. and pressed charges against him. Ms. Star received similar threats from other members of the Crips in Building 3.
99. Ms. Star filed another grievance on July 21, 2014, detailing threats she had received from Crips gang members in the new building. She said that the Crips wanted to retaliate against her because of her conflict with J.T. while at Hughes. She wrote, “I have been told that I will be killed if I remain in population.”
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100. On or around July 27, 2014, the day after an outside attorney visited Ms. Star for the first time in Robertson, Sergeant Marquez moved Ms. Star into isolation, where she remained until November 16, 2014. During this time, Ms. Star was confined to a cell approximately 10 feet by 8 feet, for more than 23 hours per day. Defendants kept Ms. Star in involuntary segregated housing for more than 110 days, without a disciplinary infraction or a hearing.
101. When Ms. Star asked Correctional Officer Lopez why she was stuck in solitary without a hearing or a disciplinary infraction, while the investigation into the threats against her was pending, Lopez told her to “quit filing OPIs,” if she did not want to be in isolation.
102. Upon information and belief, Defendants use confinement in isolation and the threat of isolation to deter people in custody from complaining about sexual abuse, threats, and other assaults.
103. As a result of her involuntary confinement in isolation, Ms. Star suffered from depression, had trouble sleeping, constantly thought about past incidents of sexual assault, and lived in constant fear that at any moment she would be thrown back into the general population to be raped again, instead of being moved to safekeeping. While confined in isolation, she was denied opportunities to attend church, work, study, call her family, and go to the law or regular libraries. For a large portion of her time in isolation, she was even denied the one hour of daily recreation time afforded to inmates housed in administrative segregation.
104. On August 1, 2014, Ms. Star appeared in front of the UCC headed by Assistant Warden Webb and again asked to be placed in safekeeping. She told the UCC that her problems related to her being a transgender woman confined in the general population in a male prison. Assistant Warden Webb replied, “It’s a man’s prison. You can’t expect to walk around acting like that and not have problems.” Denying Ms. Star’s request for safekeeping, this time the UCC
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recommended that she be transferred away from Robertson due to the risk to her safety and moved into general population in yet another new unit.
105. On August 1, 2014, and again on August 11, 2014, Ms. Star filed more grievances, outlining the threats made to her safety by gang members and requesting placement in safekeeping. In the August 11, 2014 grievance, Ms. Star wrote:
[T]ransferring me from unit to unit in general population does nothing to rectify this problem that is pervasive.… I have been threatened with my life as well as threatened with rape. Housing me in general population to repeat the same cycles with different offenders is absurd.… 106. The next day, Ms. Star wrote directly to SCC, headed by Defendant White, requesting placement in safekeeping. She identified herself as a transgender woman and again explained that her “life is in danger.” 107. On September 8, 2014, a transgender woman called Renee Divine was brought into the wing where Ms. Star was confined on a stretcher. Ms. Divine told Ms. Star that she had been sexually assaulted by her cellmate in her previous building. Ms. Star also learned that when Ms. Divine reported the rape to Sergeant Lopez, instead of taking her for medical care and filing a report, Sergeant Lopez forced Ms. Divine to take a shower and placed her back in the cell with her assailant, who raped her again. 108. When Ms. Star attempted to intervene on behalf of Ms. Divine, Officer Snodgrass told her, “Shut up! Mind your own business, faggot,” and threatened Ms. Star with a disciplinary and “food loaf” as punishment. Upset by the treatment of Ms. Divine and fearing that Ms. Divine would not be able to file a grievance, on September 10, 2014, Ms. Star submitted a grievance reporting the alleged rape of Ms. Divine and the threats she had received from officers when she tried to help Ms. Divine. After Ms. Star filed the grievance, a grievance officer came to her cell and told her that she was permitted only to write grievances about issues that concerned her
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personally—even though federal law provides otherwise. 109. After Ms. Star attempted to help Ms. Divine, TDCJ officials transferred Ms. Star
on or around September 15, 2014, to a different solitary cell where she remained in isolation in Building 12.
110. On or around September 17, 2014, the SCC, denied Ms. Star’s request for safekeeping and the UCC’s recommendation that Ms. Star be transferred to a new unit, in effect ordering Ms. Star back into the general population in Robertson, where the risk that she would be seriously harmed again was substantial.
111. The UCC at Robertson decided to appeal the SCC’s rejection of their last recommendation that Ms. Star be transferred away from Robertson because of the risk of serious harm to Ms. Star if she was placed back in the general population. Even though the UCC knew that sending Ms. Star to general population in a new unit would not be sufficient to protect her, the UCC did not appeal the SCC’s denial of its June 5, 2014 recommendation that she be placed in safekeeping.
112. On or around September 26, 2014, Defendant Fuster, writing on behalf of the SCC, denied another of Ms. Star’s grievances in which she sought additional protection and placement in safekeeping. Even though Defendant Fuster possessed information about the current threats to Ms. Star in Robertson and Ms. Star’s vulnerability and documented history of being threatened and assaulted, he failed to take reasonable steps to protect her from the risk of serious harm.
The Cycle Repeats: Continued Fear of Serious Harm in a New Unit, Clements 113. On November 17, 2014, Passion was transferred from Robertson to Clements, where she was assigned housing in the general population.
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114. During intake, Ms. Star told TDCJ staff at Clements, including the Safe Prison Coordinator at Clements, that she was a transgender woman, that she had a history of being assaulted, and that she was afraid that she would have the same problems in Clements that she had in the six previous units where she had been housed. Instead of expressing concern for her safety, TDCJ staff made fun of her gender identity. The Safe Prison Coordinator on the unit discouraged her from expressing her gender identity, telling her it would lead to problems.
115. TDCJ staff at Clements reviewed Ms. Star’s record of “offender protection investigations” and attempted to discourage her from filing complaints while at Clements. They threatened to cause problems for Ms. Star, including writing her up and provoking fights with her cellmate, if she continued to file requests for protection and grievances as she had done in other units.
116. In November 2014, Ms. Star met with psychologist Ledbetter at Clements, who asked her about her transgender identity. Ms. Ledbetter insisted that Ms. Star was a man and not a woman and tried to force Ms. Star to admit that she could not be a woman. Ms. Star was upset by her interaction with Ms. Ledbetter.
117. Ms. Star has seen several people at Clements who were previously incarcerated with her either at Coffield or Hughes. For example, J.C., a Crip and a close friend of J.T.’s was previously at Hughes when Ms. Star was there and is now at Clements. J.C. was present with J.T. when he threatened Ms. Star on November 19, 2013—the day before the Razor Attack. K.H., a Crip who is also now at Clements, was incarcerated at Coffield when Ms. Star was there and made aggressive sexual advances towards Ms. Star at Coffield until T.K., with whom Ms. Star was in a violent, coerced sexual relationship, made K.H. stop.
118. Ms. Star has also run into correctional officers at Clements whom she knows from
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her incarceration in other units—officers who know about problems she has had on other units as a result of her gender identity and/or perceived sexual orientation.
119. Ms. Star fears that problems that she has had on other units could follow her to Clements and reignite. She is afraid that as a result she will be attacked again.
120. Soon after arriving in Clements, Ms. Star was propositioned and questioned by people in custody as to whether she was in a relationship. T.C., a member of the Mandingo Warriors gang, threatened to hurt her if she did not perform sexual acts for him. T.C. called Ms. Star a “ho” and told her, “you have to have a man.” Another incarcerated person grabbed her buttocks and demanded that she perform sexual acts with him.
121. Since January 2015, K.H., a Crip who knows Ms. Star from Coffield, has been aggressively propositioning Ms. Star for sexual favors. K.H. told other incarcerated people, including many Crips at Clements, that Ms. Star belonged with him and sent a messenger to arrange a meeting between them, which Ms. Star avoided.
122. Ms. Star, who does not want to be forced into a sexual relationship, is afraid that she will sexually assaulted or attacked as a result of her refusal to perform sexual acts for incarcerated people at Clements.
123. As a result of the threats from correctional officers in Clements, Ms. Star is afraid to complain to them about the threats to her safety. She is afraid that they will retaliate against her rather than helping her, including by allowing other incarcerated people to harm her or confining her to suffer in involuntary, isolated segregation again.
124. Even though Ms. Star is afraid that she will be more at risk of harm if she complains about the threats against her, Ms. Star is determined to do so. Ms. Star is filing administrative grievances. She is also writing letters to Defendant White at the SCC and
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Defendant Sharp, the current PREA Ombudsman, to confirm that moving her to a new unit has not been sufficient to protect her and repeating her request to be moved to safekeeping.
Particular Vulnerability of LGBT People in Custody 125. At all times relevant to this action, Defendants were aware that LGBT people, like Ms. Star, are particularly vulnerable to sexual abuse while incarcerated in TDCJ facilities and that there is a heightened risk that they will be sexually or physical assaulted. Defendants knew that LGBT and gender-nonconforming people are sexually abused more frequently in prisons and jails than other inmates and are widely considered particularly vulnerable to sexual abuse in the correctional context. 126. At all times relevant to this action, Defendants were aware of PREA, which was unanimously passed by the Texas Legislature and signed into law by former Texas Governor George W. Bush in 2003.6 TDCJ administrators, including Defendant Livingston, participated in public hearings conducted by the bipartisan National Prison Rape Elimination Commission (“NPREC”), submitted comments on the proposed standards in May 2010 and April 2011, and provided documents used by the NPREC in preparing its recommendations. After years of study, NPREC released its report and recommended national standards, finding that: “Sexual abuse is not an inevitable feature of incarceration. Leadership matters because corrections administrators can create a culture within facilities that promotes safety instead of one that tolerates abuse.” NPREC noted that “[r]esearch on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-heterosexual orientations and transgender individuals” and specifically noted “that full adoption of the PREA standards by all of the
6 As part of PREA, Congress established the bipartisan National Prison Rape Elimination Commission to investigate the problem of sexual abuse of people in government custody and to propose standards to eliminate such sexual abuse. The final standards became effective June 20, 2012, when they were published in the Federal Register. See 28 C.F.R. Part 115.
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nation’s prisons and jails is necessary to achieve the elimination of sexual abuse in confinement facilities.”
127. Defendants also are aware that LGBT people are particularly vulnerable because this information is readily available on the website and in publications of various correctional associations, including the Department of Justice, the National Institute of Corrections, and the American Jail Association. For example, the American Jail Association has reported that “[m]ore than any other group, male-to-female transgender inmates (trans women) who are housed with men are at risk for sexual victimization and harassment in jails and prisons,” and the National Institute of Corrections noted that while incarcerated, “men and women with nonheterosexual orientations, transgender individuals, and people with intersex conditions were highly vulnerable to sexual abuse.”
128. The vulnerability of LGBT people to sexual assault while incarcerated has also been discussed by organizations, such as Human Rights Watch and Just Detention International, and the press, such as the Houston Chronicle and the Los Angeles Times.
129. TDCJ’s written policy recommends that an inmate’s sexual orientation and/or gender identity be taken into account when assigning housing, including placement in safekeeping, to reduce the possibility of sexual abuse. TDCJ’s internal training documents note that LGBT people are vulnerable to sexual abuse while incarcerated and have a greater potential for being victimized than other people in custody, and upon information and belief, Defendants were aware of this information in TDCJ’s training documents.
130. Upon information and belief, at all times relevant to this action, Defendants were aware that LGBT people incarcerated in TDCJ are vulnerable to sexual abuse.
There Is a Pattern and Practice of Sexual Abuse of LGBT People in TDCJ Custody
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131. There is a pattern pursuant to which LGBT people are sexually assaulted in TDCJ.
132. Ms. Star is not the only LGBT person incarcerated in TDCJ whose complaints about sexual assault and the threat of sexual assault have been ignored.
133. Defendants have been confronted with numerous complaints and lawsuits by LGBT people related to sexual assault in TDCJ and, upon information and belief, knew about other LGBT people who were survivors of sexual assault while incarcerated.
134. Statistics published over the last half decade show that sexual abuse of inmates is a significant and insufficiently addressed problem in TDCJ facilities.
135. The Bureau of Justice Statistics (“BJS”), a branch of the Department of Justice, published its first-ever inmate survey on sexual victimization in 2007 based on data from 146 prisons and found that five of the ten prisons with the highest reported levels of sexual abuse were run by TDCJ, including Clements.
136. Over 2008 and 2009, BJS conducted a follow-up survey of 29,954 inmates at 167 prisons to study rates of inmate-on-inmate sexual victimization. The 2010 report on that survey designated Hughes as having the highest rate of inmate-on-inmate sexual victimization of all the prisons surveyed, at 8.6 percent.
137. Over 2011 and 2012, the BJS conducted a third survey, this time of 38,251 inmates in 233 prisons nationwide. The 2013 BJS report identified eleven “high-rate” prisons, meaning inmates there reported a rate of sexual victimization at least twice the national rate of 1.7 percent for male prisons. Clements again appeared with rate of 6.8 percent of people incarcerated in Clements reporting that they have been sexually assaulted, the eighth highest rate of all prison facilities surveyed nationwide.
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138. TDCJ is and has been aware of these and similar statistics. For example, from September 2012 through August 2013, TDCJ’s Office of the Inspector General documented 378 allegations of inmate abuse meeting the elements of Texas Penal Code 22.011 (Sexual Assault) and 22.021 (Aggravated Sexual Assault): 14 from Hughes, 18 from Robertson, and 24 from Clements.
139. In 2011, the Department of Justice’s Review Panel on Prison Rape held a PREAmandated hearing and invited three correctional institutions with a high prevalence of victimization to submit testimony. Defendant Livingston provided testimony for TDCJ and addressed statistics showing that abusive sexual contact at one facility were alarmingly high. The panel also heard testimony that TDCJ’s “practice does not appear to conform to [its] policies.” The Panel noted that a significant number of complaints were from inmates who self-identified as homosexual and recommended that prison administrators provide training to staff on the vulnerability of homosexual inmates and to take steps to protect them from sexual assault.”
140. Defendants also are and have been aware that prison gang-related crime and violence pose a significant threat to LGBT people in custody. Gang members, including members of the Bloods and the Crips, have been responsible for many sexual and physical assaults and homicides in TDCJ facilities.
141. TDCJ collects, analyzes, and disseminates gang-related information to its staff and law enforcement agencies. TDCJ currently recognizes twelve gangs or security threat groups (“STGs”), including the Bloods and the Crips, who operate and coordinate unlawful activities across TDCJ facilities and outside TDCJ facilities.
142. In particular, Defendant Davis, as Deputy Director of Management Operations, is responsible for overseeing, inter alia, the STG Management Office, and thus is aware of these
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gangs or STGs, including the Bloods and the Crips, that such groups pose a significant threat to LGBT people in custody, that they have been responsible for many assaults and murders in TDCJ facilities, and that such groups operate and coordinate unlawful activities across TDCJ facilities and outside TDCJ facilities.
143. Additionally, Defendant Eason, as Deputy Director of Prison and Jail Operations, is responsible for overseeing, inter alia, the Security Operations Department, and thus is aware of the impact of gangs and STGs on the security of TDCJ facilities, the serious incidents involving such groups, and staffing and operations policies, procedures, and compliance.
144. At all relevant times, Defendants were aware that individuals who have a conflict with one gang member are at risk of violence from other members of the same gang, that gangs or STGs operated throughout TDCJ facilities, and that their reach extends beyond a particular unit.
Defendants Have Authorized or Condoned Conduct that Tolerates Sexual Abuse of Incarcerated LGBT People
145. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned, ratified, and/or adopted and continue to condone, ratify, and/or adopt widespread and pervasive customs and practices that are so deficient that these defendants are deliberately indifferent to the substantial risk of serious harm to LGBT inmates, including Ms. Star.
146. The custom condoned by Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White permits inmates who are vulnerable to sexual abuse, like Ms. Star, to remain in the general population without adequate protections to prevent them from being sexually and/or physically assaulted. Upon information and belief, TDCJ staff members regularly refuse to offer safekeeping protection to inmates, including Ms. Star, who are
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vulnerable to sexual abuse, even when the inmates specifically and repeatedly request that status and other alternatives to protect them prove ineffective. Consequently, many vulnerable inmates are victims of sexual assault, which includes being coerced into involuntary sexual relationships with stronger or more powerful people in custody, who are frequently gang members.
147. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified a custom and practice by which incarcerated people are not adequately screened for vulnerability to sexual abuse and separated from likely aggressors, and continue to condone or ratify this custom or practice. Upon information and belief, TDCJ staff do not use the information available to them that LGBT people and people who have been previously sexually abused in the general population, like Ms. Star, are substantially vulnerable to future serious abuse. The custom in place permitted TDCJ staff at multiple units to suggest that Ms. Star should enjoy being sexually abused and ridicule her, instead of recognizing that Ms. Star’s LGBT identity makes her more vulnerable to sexual assault.
148. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed to train and/or supervise, and continue to fail to train and/or supervise the implementation of written policies that, in contrast to the widespread and pervasive custom and practice, require that inmates be screened for vulnerability and separated from likely aggressors, taking into account “whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming”; “whether the inmate has previously experienced sexual victimization”; and “the inmate’s own perception of vulnerability.” § 115.41.
149. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified, and continue to condone and ratify, a custom and practice of insufficient direct supervision to protect inmates from sexual abuse or for guards to properly supervise the
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inmates in their care. Upon information and belief, TDCJ has not been able adequately to identify and retain qualified employees. Upon information and belief, inattentive and undercompensated guards allow gang members and other aggressive inmates to have the run of the prison, to exert control over other inmates, and to victimize vulnerable inmates. Upon information and belief, video surveillance is insufficient to document and/or deter sexual predation in the general population at TDCJ facilities. Many areas in the general population lack security cameras.
150. In contrast to the widespread and pervasive custom and practice in TDCJ, Texas’s written policies and PREA require that TDCJ maintain “adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse.” 28 C.F.R. § 115.13. Despite their awareness of the problems resulting from not implementing this written policy, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed and continue to fail to adequately train and/or supervise their subordinates with regards to adequate supervision of the people in their custody.
151. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified a custom and practice where TDCJ staff are inadequately trained on the importance of protecting inmates from sexual abuse, and they continue to do so. Upon information and belief, training provided to TDCJ employees is perfunctory and inadequate to ensure that staff members know how to prevent sexual abuse and how to respond to allegations of threatened sexual abuse. Upon information and belief, PREA training is a joke for many TDCJ employees, who believe that sexual assault of LGBT people is funny. Upon information and belief, high turnover rates and the influx of new staff means that many staff have not been trained or had only basic training. According to a 2012 survey of TDCJ correctional officers,
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conducted by the Texas Criminal Justice Coalition, more than half the correctional officers surveyed do not believe that they receive adequate training, and nearly two-thirds do not believe the training they have received has prepared them for the challenges of their job.
152. In contrast to the widespread and pervasive custom and practice in TDCJ, Texas’s written policies and PREA require TDCJ to train all employees who may have contact with inmates on the zero-tolerance policy for sexual abuse and sexual harassment; the dynamics of sexual abuse and sexual harassment in confinement; how to detect and respond to signs of threatened and actual sexual abuse; how to prevent, detect, report, and respond to allegations; the common reactions of sexual abuse and sexual harassment victims; and how to communicate effectively and professionally with inmates, including LGBT, intersex, or gender-nonconforming inmates. See 28 C.F.R. § 115.31. Despite their awareness of the problems resulting from inadequate training, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed, and continue to fail, to adequately train and/or supervise their subordinates with regards to adequate training of TDCJ staff.
153. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified, and continue to condone and ratify, a custom and practice of disrespect for LGBT people. TDCJ has not adequately trained its staff concerning professional interactions with LGBT or gender-nonconforming inmates. In fact, as alleged above, it is common for TDCJ staff to call inmates “faggot” and “punk,” to speak to them in a derogatory manner, and to suggest that gay incarcerated people enjoy being raped. Furthermore, upon information and belief, TDCJ staff purposefully use the incorrect gender pronoun when interacting with transgender people despite the serious harm that this can cause and allow other incarcerated people to target LGBT people for abuse because of their sexual orientation and/or gender
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identities. 154. In contrast to the widespread and pervasive custom and practice in TDCJ, Texas’s
written policies and the PREA require that TDCJ train its employees “[h]ow to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates.” 28 C.F.R. § 115.13(9). Despite their awareness of the problems resulting, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed, and continue to fail, to adequately train and/or supervise their subordinates with regards to adequate training of the people in their custody.
155. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified a widespread custom and practice of perfunctory and incomplete investigation of inmate complaints, including grievances, and they continue to do so. TDCJ staff failed, and continue to fail, to actively investigate complaints of assaults, sexual harassment, and threats to the safety of vulnerable incarcerated people, like Ms. Star. Upon information and belief, the widespread custom and practiced condoned TDCJ staff when they failed to adequately review Ms. Star’s repeated complaints or respond reasonably given the fact that the assaults and threats were based on her perceived sexual orientation and her gender identity. When investigating Ms. Star’s complaints, TDCJ staff, with the acquiescence of Defendants, ignored the well-known culture of silence in prisons that offers swift and severe retribution for “snitches” and instead approached Ms. Star’s complaints as necessarily unworthy of attention unless substantiated by additional witnesses or evidence, when often the only witnesses were Ms. Star and the inmate who was threatening or assaulting her. Defendants seemingly ignored the physical evidence of Ms. Star’s repeated abuse and summarily closed Ms. Star’s grievances, ignoring her pleas to be placed in safekeeping.
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156. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed, and continue to fail, to train and/or supervise TDCJ staff to ensure that they gather and preserve direct and circumstantial evidence; take immediate action to protect inmates from a substantial risk of imminent sexual abuse; and take an active role in the investigation, interviewing alleged victims, suspected perpetrators, and witnesses, and reviewing prior complaints and reports of sexual abuse involving the suspected perpetrator, in conformity with written policies. See §§ 115.34, 71.
157. In contrast to this widespread and pervasive custom and practice, the Texas Safe Prisons Plan requires that safekeeping status be available for incarcerated people in all general population custody levels “who require separate housing from general population because of threats to their safety due to a history of homosexual behavior, a potential for victimization, or other similar reasons.” Inmates in safekeeping sleep and receive their meals and recreation time apart from the general population and are thus provided additional protection from inmate-oninmate sexual abuse. Despite their awareness of the problems resulting, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed, and continue to fail, to adequately train and/or supervise their subordinates with regards to the safekeeping policy.
158. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White condoned and ratified a widespread practice and custom whereby incarcerated people reporting threats to their safety are held in involuntary segregated housing, in conditions known to cause harm to them, and they continue to do so. Upon information and belief, TDCJ staff members employ isolation and the threat of isolation as a tool to deter inmates from complaining about sexual and other abuse in TDCJ facilities. Despite alternative placement options, including safekeeping, as a result of reporting threats against her, Ms. Star has been involuntarily held in
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solitary confinement for periods exceeding 30 days, in conditions similar to those used to punish inmates for disciplinary infractions.
159. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed, and continue to fail, to train and/or supervise TDCJ staff in the implementation of Texas’s written policies and PREA, which prohibit the use of involuntary segregated housing unless a determination has been made that there is no available alternative means of separation from likely abusers and, in any case, only “until an alternative means of separation from likely abusers can be arranged.” See § 115.43.
160. The PREA Ombudsman office, formerly headed by Defendant Bales and now headed by Defendant Sharp, is charged, inter alia, with monitoring the policies for responding to inmate sexual abuse and ensuring that complaints of sexual abuse are impartially and adequately investigated, but does not adequately investigate and respond to complaint of sexual abuse. Upon information and belief, the office employs only three staff members, a staff wholly insufficient to review and investigate hundreds of complaints of sexual abuse every year.
161. Although Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White are knowledgeable about PREA and have even incorporated many of the mechanisms to prevent sexual abuse in prisons into TDCJ’s written policies, such as the Safe Prisons Plan, these defendants have failed, and continue to fail, to adequately train and supervise their staff on the known mechanisms to reduce and prevent sexual abuse of inmates, demonstrating deliberate indifference to the substantial risk of serious harm to LGBT inmates, including Ms. Star.
162. If Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White had adequately trained and supervised their staff and/or implemented PREA or Texas’s written policies, such as the Safe Prisons Plan, Ms. Star would not have lived under the constant threat of
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sexual assault and other harm and would not have been repeatedly assaulted. Defendants’ failure to train and supervise their staff and ratification of a culture of apathy toward sexual assault and disrespect for LGBT people caused Ms. Star’s injuries and the continuing, severe threat to her constitutional rights. Consequently, they failed, and continue to fail, to take reasonable steps to protect Ms. Star from the risk of future sexual and/or physical assault.
Defendants Failed to Act Reasonably after Receiving Direct Notice of the Risk of Serious Harm to Ms. Star
163. Defendant Bales, the former PREA Ombudsman, received several letters from Ms. Star describing the substantial risk of serious harm that she faced, including letters on March 27, 2014, and March 28, 2014. Nevertheless, on April 8, 2014, without determining that her pleas were unfounded, Defendant Bales informed Ms. Star that he would take no action to protect her.
164. Defendant White, Assistant Director of TDCJ’s Classification and Records Department, upon information and belief, was aware that Ms. Star had been assaulted in the past by other inmates in TDCJ facilities and was at substantial risk of serious future assaults. Defendant White oversaw the SCC during the times that Ms. Star made numerous appeals to the SCC for protection. Upon information and belief, Defendant White received at least two letters from Ms. Star pleading for help and multiple grievances that Ms. Star submitted, but refused to act or authorize action to protect Ms. Star.
165. Defendant Armstrong, Assistant Regional Director, refused to take or authorize reasonable actions to protect Ms. Star, even though he was aware that she had been assaulted in the past by other inmates at Hughes and Robertson, as well as other TDCJ facilities, and was at risk of future assaults by inmates. Between November 2013 and October 2014, Defendant Armstrong reviewed and denied at least six appeals of grievances in which Ms. Star sought
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safekeeping because of threats of violence and imminent harm. On May 30, 2014, he denied a recommendation by the UCC at Robertson to transfer Ms. Star to a new unit.
166. Defendant Fuster, Assistant Regional Director, refused to take or authorize reasonable actions to protect Ms. Star even though he was informed that she had been assaulted in the past by other inmates at Hughes and Robertson, as well as other TDCJ facilities, and was at substantial risk for serious future assaults. Defendant Fuster reviewed at least one grievance in which Ms. Star requested safekeeping because of threats of violence and imminent harm. He denied Ms. Star’s request for safekeeping and further denied a recommendation by the UCC to transfer Ms. Star from Robertson to a new unit.
167. Defendant Dean, Senior Warden at Hughes, was aware that Ms. Star had been assaulted in the past by other inmates and was at substantial risk of serious future assaults. Ms. Star sent him a letter detailing the threats against her in October 2013. Upon information and belief, Defendant Dean received and reviewed this letter, but took no action to protect her.
168. Defendant Blanchard, Assistant Warden at Hughes, was aware that Ms. Star had been assaulted in the past by other inmates at Hughes and was at substantial risk of serious future assaults. Nevertheless, Defendant Blanchard denied at least four grievances submitted by Ms. Star regarding threats and violence against her. On November 19, 2013, as a member of the UCC, Defendant Blanchard denied Ms. Star’s request for safekeeping based on violence and threats against her and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked.
169. Defendant Maldonado, Assistant Warden at Hughes, denied at least two grievances submitted by Ms. Star regarding violence and threats of violence against her,
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disregarded readily available evidence, and failed to adequately investigate Ms. Star’s claims. Even though Defendant Maldonado was aware that Ms. Star had been assaulted by other inmates at Hughes in the past and was at substantial risk of serious future assaults, on November 22, 2013, Defendant Maldonado disregarded information that Ms. Star had been viciously attacked two days earlier and denied her request for safekeeping.
170. Defendant Marez, a Major at Hughes, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, he denied at least five requests by Ms. Star to be placed in dormitories, and on November 4, 2013, as a member of the UCC, denied Ms. Star’s request for safekeeping.
171. Defendant Sigmund, a Captain at Hughes, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, on November 19, 2013, Defendant Sigmund denied Ms. Star’s request for safekeeping and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked in that pod.
172. Defendant Pickett, a Sergeant in Hughes, was informed that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk of serious future assaults. Nevertheless, on November 19, 2013, Defendant Pickett ignored Ms. Star’s desperate plea for help to protect her against a threatened attack and refused to take action to protect her from the attack that occurred the next morning.
173. Defendant Walters, a Classification Secretary at Hughes, was aware that Ms. Star had been assaulted by other inmates at TDCJ facilities in the past and was at substantial risk
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of serious future assaults. Nevertheless, on November 19, 2013, Defendant Walters denied Ms. Star’s request for safekeeping and had her moved to the same pod in the general population where her attacker was housed, and again denied her request for safekeeping on November 22, 2013, after she was attacked.
174. In light of the following, Defendants Bales, Sharp, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, and Walters, were personally aware that Ms. Star was at substantial risk of serious harm, and they should have placed her in safekeeping or taken other actions to reduce the harm and the threat of harm to her.
FIRST CLAIM FOR RELIEF Preliminary and Permanent Injunctive and Declaratory Relief
U.S. Const. Amend. VIII—Deliberate Indifference (Against Defendants Livingston, Stephens,
Sharp, Eason, Davis, and White, in their Official Capacities)
175. Plaintiff incorporates by reference all previous paragraphs of this Amended Complaint as if fully set forth here.
176. With deliberate indifference to Ms. Star’s personal health and safety, Defendants Livingston, Stephens, Sharp, Eason, Davis, and White failed, and continue to fail, to protect her from substantial risk of serious harm in violation of her rights under the Eighth and the Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.
177. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White are aware that violence in the prison was frequent and regular and that predatory gangs operated across TDCJ facilities and targeted vulnerable inmates, including Ms. Star, for violence, sexual assault, and sexual exploitation.
178. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White are aware that gay men and transgender women housed in male correctional institutions, including Ms.
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Star, are particularly vulnerable to violence, sexual assault, and sexual exploitation. The substantial risk of serious harm to Ms. Star is obvious.
179. In addition, Defendant White has personal knowledge of the substantial risk of serious harm to Ms. Star and failed to take reasonable safeguards to protect Ms. Star, despite their knowledge of a substantial risk to her safety.
180. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White are disregarding the immediate and substantial risk of serious harm to Ms. Star and failing to act reasonably to prevent Ms. Star from being sexually and physically assaulted. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White failed, and continue to fail, to train, supervise, and enforce TDCJ employees adequately regarding TDCJ policies and, specifically, measures to protect gay and transgender people in custody from the substantial risk of serious harm.
181. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White disregarded, and continue to disregard, a known or obvious consequence of their failure to train and supervise their subordinates adequately and to enforce TDCJ policies. As a consequence of the lack of proper training and/or supervision of TDCJ staff and enforcement of the TDCJ policies, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
182. Contrary to the actual written TDCJ policies, Defendants Livingston, Stephens, Sharp, Eason, Davis, and White have condoned, ratified, and /or adopted, and continue to condone, ratify, and/or adopt, a widespread and pervasive custom and practice that deters inmates from filing complaints, denies them protection from sexual assault and physical abuse, refuses to investigate inmate complaints, and fails to staff and fund the facilities in a way that
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adequately protects against physical violence among inmates, including measures to protect gay and transgender inmates from the substantial risk of serious harm.
183. Defendants Livingston, Stephens, Sharp, Eason, Davis, and White disregarded, and continue to disregard, a known or obvious consequence of the widespread and pervasive custom and practice they have adopted or permitted to occur. As a consequence of the widespread and pervasive custom and practice adopted by these defendants, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
184. The actions and omissions of Livingston, Stephens, Sharp, Eason, Davis, and White are so grave that they violate contemporary standards of decency by exposing anyone unwilling to a substantial risk of serious harm, and it is clearly established that such deliberate indifference is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
185. The Court should declare that the conduct of Defendants Livingston, Stephens, Sharp, Eason, Davis, and White as described in this First Claim for Relief violated the Eighth Amendment’s prohibition of cruel and unusual punishment, and the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983.
186. Without preliminary and permanent injunctive relief, Ms. Star will most certainly continue to suffer severe irreparable harm for which she has no adequate remedy at law. Ms. Star is likely to succeed on the merits of her claim and, in any event, the balance between the harm to the Plaintiff in failing to grant injunctive relief greatly outweighs any potential harm to the Defendants in granting injunctive relief. Finally, the public interest is always served in holding governmental actors accountable for violating the constitutional rights of its citizens.
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187. The Defendants should be preliminarily and permanently enjoined by a court order directing them to place Ms. Star in safekeeping or take alternative measures to protect her from the threat of sexual assault and other violence in TDCJ and directing them to enforce the existing written policy in all respects that ensures the safekeeping of LGBT incarcerated people, like Ms. Star.
SECOND CLAIM FOR RELIEF Damages and Declaratory Relief
U.S. Const. Amend. VIII (Against All Defendants in their personal capacities)
188. Plaintiff incorporates by reference all previous paragraphs of this Amended Complaint as if fully set forth here.
189. With deliberate indifference to Ms. Star’s personal health and safety, Defendants Livingston, Bales, Stephens, Sharp, Eason, Davis, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, and Walters failed to protect her from substantial risk of serious harm in violation of her rights under the Eighth and the Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.
190. In addition, Defendants Bales, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, and Walters had personal knowledge of the threats to Ms. Star and the substantial risk of serious harm to her.
191. Defendants Livingston, Bales, Stephens, Sharp, Eason, Davis, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, and Walters failed to take reasonable safeguards to protect Ms. Star despite their knowledge of a substantial risk to her safety.
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192. The actions and omissions of Defendants Livingston, Bales, Stephens, Sharp, Eason, Davis, White, Armstrong, Fuster, Dean, Blanchard, Maldonado, Marez, Sigmund, Pickett, and Walters are so grave that they violate contemporary standards of decency by exposing anyone unwilling to a substantial risk of serious harm, and it is clearly established that such deliberate indifference is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
193. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White failed to train, supervise, and enforce TDCJ employees adequately regarding TDCJ policies and, specifically, measures to protect gay and transgender inmates from the substantial risk of serious harm.
194. Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White disregarded a known or obvious consequence of their failure to train and supervise their subordinates adequately and to enforce TDCJ policies. As a consequence of the lack of proper training and/or supervision of TDCJ staff and enforcement of the TDCJ policies, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
195. Contrary to the actual written TDCJ policies, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White have condoned, ratified, and/or adopted a widespread and pervasive custom and practice that deters inmates from filing complaints, denies them protection from sexual assault and physical abuse, refuses to investigate inmate complaints, and fails to staff and fund the facilities in a way that adequately protects against physical violence among inmates, including measures to protect gay and transgender inmates from the substantial risk of serious harm.
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196. By so doing, Defendants Livingston, Stephens, Sharp, Eason, Davis, Bales, and White disregarded a known or obvious consequence of the widespread and pervasive custom and practice they have condoned, ratified, and/or adopted. As a consequence of the widespread and pervasive custom and practice condoned by these defendants, Ms. Star suffered not only a substantial risk of serious harm, but also was assaulted, lacerated, raped, and forced to perform sexual acts against her will.
197. All Defendants were aware that violence in the prison was frequent and regular and that predatory gangs operated across TDCJ facilities and targeted vulnerable people in custody, including Ms. Star, for violence, sexual assault, and sexual exploitation.
198. All Defendants were aware that gay men and transgender women housed in male correctional institutions, including Ms. Star, were particularly vulnerable to violence, sexual assault, and sexual exploitation. The substantial risk of serious harm to Ms. Star was obvious.
199. The Court should declare that the conduct of Defendants, as described in this Complaint and alleged in the First Claim for Relief, above, violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The Court should further declare that the law proscribing Defendants’ conduct was clearly established as unconstitutional at the time they engaged in such conduct.
200. Plaintiff was harmed and suffered damages as a result of all of the Defendants’ misconduct, including damages for the physical injuries, permanent disfigurement, excruciating emotional pain, and lasting psychic trauma. Thus, Plaintiff is entitled to recover compensatory damages against all Defendants in their personal capacities.
201. The Defendants acted with a malicious or evil intent or callous disregard of Plaintiff’s federally protected rights. Additionally, Defendants engaged in “oppressive” conduct
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that misused official authority or exploited the Plaintiff’s weakness. Accordingly, Plaintiff is entitled to an award of punitive damages against all Defendants in their personal capacities.
IV. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests the following relief from the Court:
1. A preliminary injunction pursuant to Fed. R. Civ. P. 65 prospectively enjoining Defendants from housing Ms. Star in the general population or, in the alternative, giving adequate notice to counsel of no less than fourteen days prior to any attempt to do so;
2. A permanent injunction prospectively directing Defendants to maintain Plaintiff in safekeeping status while she remains in TDCJ custody;
3. A declaratory judgment that the practices, acts, and omissions complained of herein violated Plaintiff’s rights;
4. Expungement of any disciplinary violations on Plaintiff’s record connected to Defendants’ failure to protect Plaintiff;
5. Appropriate medical and psychiatric treatment and counseling for Plaintiff’s physical and psychic injuries suffered as a result of Defendants’ acts and omissions;
6. Compensatory damages, including damages for the physical injuries, permanent disfigurement, excruciating emotional pain, and lasting psychic trauma, against each Defendant who is named in his or her personal capacity;
7. Punitive damages against each Defendant who is named in his or her personal capacity;
8. Pre- and post-judgment interest as permitted by law; 9. Reasonable attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and
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10. Such further relief as the Court may deem just and proper.

Dated January 28, 2015

Respectfully submitted,

Kenneth D. Upton, Jr. Attorney in Charge Texas State Bar No. 00797972 Southern District of Texas No. 635808 kupton@lambdalegal.org
Paul D. Castillo Texas State Bar No. 24049461 Southern District of Texas No. 2451868 pcastillo@lambdalegal.org
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219-6722 Telephone: (214) 219-8585 Facsimile: (214) 219-4455

and

Jael Humphrey-Skomer* LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, NY 10005-3919 Telephone: (214) 809-8585 Facsimile: (214) 809-0055
and

By: _s/ Christina N. Goodrich_ Christopher J. Kondon* Christina N. Goodrich* Saman M. Rejali* K&L GATES LLP 10100 Santa Monica Blvd., 7th Floor Los Angeles, California 90067 Telephone: (310) 552-5000 Facsimile: (310) 552-5001

*Admitted pro hac vice

ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE On January 28, 2015, I electronically submitted the foregoing document to the clerk of court for the U.S. District Court, Southern District of Texas, using the electronic case filing system of the Court. I hereby certify that I have served the following counsel of record electronically through the Court’s ECF system. Kim Coogan Attorney for Defendants Brad Livingston, Ralph Bales, Joni White, Bruce Armstrong, and Fernando Fuster Christin Cobe Vasquez Attorney for Defendants Kenneth Dean, Brian Blanchard, Rene Maldonado, James Sigmund, Leslie Walters, Ralph Marez, Jr., and Prince Pickett The following additional defendants have been added in the Amended Complaint and will be served in accordance with Rule 4, Federal Rules of Civil Procedure: William Stephens, Lynne Sharp, Lorie Davis, and Robert Eason.
s/ Christina N. Goodrich Christina N. Goodrich
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

JOSHUA D. ZOLLICOFFER AKA PASSION STAR,
Plaintiff, v. BRAD LIVINGSTON, et al.,
Defendants.

§

§

§

§

§

CIVIL ACTION H-14-3037

§

§

§

§

ORDER Pending before the court is defendants Brad Livingston, Ralph Bales, Joni White, Bruce Armstrong, Fernando Fuster, Kenneth Dean, Brian Blanchard, Rene Maldonado, Ralph Marez, Jr., Sigmund L. Smith, Prince Pickett, Leslie Walters, Ronald Fox, Adam Gonzales, Jimmy S. Webb, and Juan Lopez’s (collectively, “defendants”) motion to transfer venue to the United States District Court for the Western District of Texas, Waco Division, pursuant to 28 U.S.C. § 1404(a). Dkt. 31. After considering the motion, the plaintiff’s response, the record, and the applicable law, the court DENIES defendants’ motion to transfer.
I. BACKGROUND Joshua Zollicoffer a/k/a Passion Star (“plaintiff”) brings a prisoner civil rights action against defendants, employees of the Texas Department of Criminal Justice (“TDCJ”), and asserts claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments. Dkt. 37 at 5. Zollicoffer, a transgender woman, alleges that defendants failed to protect her from violent beatings, rapes, threats, and assaults from other inmates, despite her repeated pleas for protection and placement in “safekeeping.” Id. at 6. Zollicoffer filed her complaint in the Southern District of

Texas, and defendants move to transfer venue to the Western District of Texas, Waco Division, pursuant to 28 U.S.C. § 1404. Dkt. 31 at 2, 4. Of the sixteen defendants, nine reside and work (or worked) in the Southern District of Texas, and seven reside and work in the Western District of Texas. Dkt. 56 at 7–8. Zollicoffer opposes a transfer. Dkt. 37.
II. LEGAL STANDARD Section 1404(a) of Title 28 of the United States Code provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404. “The district court has broad discretion in deciding whether to order a transfer.” Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987). Furthermore, the moving party bears the burden of showing why the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). In evaluating a § 1404(a) motion to transfer, the court examines (1) whether the action “might have been brought” in the transferee forum, and (2) whether there is “good cause” for transferring the action. In re Volkswagen of Am., Inc., 545 F.3d 304, 312, 315 (5th Cir. 2008). A. Propriety of Transferee Forum There are two situations in which a transferee forum is proper for transfer under § 1404(a). First, an action may be transferred to a forum in which it “might have been brought.” 28 U.S.C. § 1404. Second, a transferee forum is proper if “all parties have consented” to it. Id. In the first scenario, the moving party must show that, at the time the suit was originally brought, the transferee forum would have had proper subject matter jurisdiction, personal jurisdiction, and venue. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31, 127 S. Ct. 1184, 1191 (2007) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003 (1998)); Atl. Marine Constr.
2

Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 134 S. Ct. 568, 579 (2013). Twenty-eight U.S.C. § 1391, the general venue statute, applies when a more specific venue provision does not apply. 28 U.S.C. § 1391; Atl. Marine, 134 S. Ct. at 577. It states in subsection (b):
Venue in general.--A civil action may be brought in-(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 28 U.S.C. § 1391. B. “Good Cause” Analysis The moving party must show “good cause” for transferring the action. In re Volkswagen, 545 F.3d at 315. “[T]o show good cause means that a moving party, in order to support its claim for a transfer, must satisfy the statutory requirements and clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’” Id. In determining whether a venue transfer is for the convenience of parties and witnesses and in the interest of justice, the court looks at four private interest factors and four public interest factors. Id. These factors “are not necessarily exhaustive or exclusive,” and none are of dispositive weight. Id. The private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. The public interest factors are: (1) the administrative difficulties flowing from court congestion; (2) the local
3

interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law. Id. “[W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. “When the movant demonstrates that the transferee venue is clearly more convenient, however, it has shown good cause and the district court should therefore grant the transfer.” Id.
III. ANALYSIS Defendants wish to transfer this case from the Southern District of Texas to the Western District of Texas. Dkt. 31 at 4. This means that defendants, as the movants, bear the burden of showing both propriety of the transferee forum and good cause for the transfer. A. Have Defendants Shown that the Action “Might Have Been Brought” in the Western District of Texas? Although the propriety of the transferee forum was not directly addressed, defendants seem to suggest that the Western District is proper under 28 U.S.C. § 1391(b)(1)–(2), because some defendants reside there and all defendants reside in Texas, and because a substantial part of the events or omissions giving rise to the claim occurred there. Id. at 2–4; 28 U.S.C. § 1391.1 It is undisputed that some defendants reside in the Western District of Texas, and all defendants reside in Texas. Dkts. 52, 56. The court assumes without deciding that the transferee forum is proper, however, because even if it was proper, the motion fails on the second part of the analysis.
1 Defendants also support their position by pointing out that the Western District would be proper under Texas law. Dkt. 52 at 6. However, the court does not consider this argument because the case was brought in federal court, where federal venue rules apply. See, e.g., Murphree v. Miss. Publ’g Corp., 149 F.2d 138, 140 (5th Cir. 1945) (“It is hornbook law that where a federal statute fixed the venue of the federal courts, state laws are inapplicable.”).
4

B. Have Defendants Shown Good Cause for Transferring the Case to the Western District of Texas? In order to meet their burden to show good cause to transfer venue,2 defendants make only
the brief argument that witnesses and defendants will be in the Western and Northern Districts, where the incidents of beatings, rapes, threats, and assaults allegedly took place. Dkts. 31 at 4, 52 at 4–5. Though Zollicoffer bears no burden on this issue, she asserts arguments based on several of the private and public factors.. See Dkt. 56 at 13–21. Zollicoffer argues that access to sources of proof are readily available in the Southern District of Texas, where the TDCJ Classification and Records Department and Safe Prisons/PREA3 Management Office are located. Id. at 14. These offices hold records of Zollicoffer’s grievances, classification documents, documentary evidence of complaints by Zollicoffer and other LGBT inmates of sexual and physical abuse, and purported investigations into such complaints. Id. Zollicoffer also points out that defendants have not identified any key witnesses or type of testimony that would make the Western District a better forum, and that because there is a roughly equal number of party witnesses in the Southern and Western Districts, the cost for witnesses to travel and testify will be roughly the same for either forum. Id. at 15–16. Zollicoffer further suggests that the Southern District is less congested than the Western District, a factor which would weigh against transferring the case.4 Id. at 19. Additionally, Zollicoffer asserts that the local interest in having localized interests decided at home
2 The court notes that defendants bear the burden of showing good cause to transfer the case, and therefore does not consider defendants’ arguments that Zollicoffer has not met her burden to maintain the case in the Southern District of Texas. See, e.g., Dkt. 52 at 5 (“Plaintiff has failed to demonstrate how citizens of the Southern District of Texas . . . have a more localized interest . . . than the citizens of the Western District . . . .”). 3 Prison Rape Elimination Act. 4 Zollicoffer asserts that the median time to trial in the Southern District is 19.7 months, whereas in the Western District it is 21.6 months. Dkt. 56 at 19. Further, she urges that the Houston Division has eleven district court judges, while the Waco Division has only one. Id.
5

weighs against transfer, because the relevant decisions and policies in this case were made and implemented by defendants who reside and work in the Southern District. Id. at 20.
As to defendants’ sole argument that witnesses and defendants are located in the Western and Northern District, they “fail to identify any key witnesses that would be unavailable and, thus, failed to meet their burden that movants for transfer must specifically identify key witnesses and outline the substance of their testimony.” Barnes v. Petroleum Coordinators, Inc., No. H:12-1132, 2012 WL 4630570, at *3 (S.D. Tex. Oct. 2, 2012) (Miller, J.) (internal quotations omitted); see also MidContinent Cas. Co. v. Petroleum Solutions, Inc., 629 F. Supp. 2d 759, 768 n.3 (S.D. Tex. 2009) (Atlas, J.) (“The moving party must offer more than mere allegations that certain key witnesses are not available or are inconveniently located. Instead, the movant must specifically identify the key witnesses and outline their testimony.”) (citations omitted). This cursory argument alone is not sufficient to show that the Western District is “clearly more convenient than the venue chosen by the plaintiff,” particularly when nine of the defendants reside in the Southern District. In re Volkswagen, 545 F.3d at 315.
IV. CONCLUSION Defendants have failed to meet their burden to show good cause to transfer this case to the Wester District of Texas. Accordingly, the motion to transfer is DENIED. Signed at Houston, Texas on April 27, 2015.
___________________________________ Gray H. Miller
United States District Judge
6

 
 Case 4:14-cv-03037 Document 77 Filed in TXSD on 03/14/16
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Page 1 of 20
United States District Court Southern District of Texas
ENTERED
March 14, 2016
David J. Bradley, Clerk

JOSHUA D. ZOLLICOFFER; aka PASSION §

STAR,

§

§

Plaintiffs,

§

vs.

§

§

BRAD LIVINGSTON, et al,

§

§

Defendants.

CIVIL ACTION NO. 4:14-CV-03037

ORDER

Before the Court is Plaintiff Joshua D. Zolicoffer aka Passion Star's Amended Complaint

(Doc. #35), Defendant Brad Livingston's Motion to Dismiss (Doc. #40), and Plaintiffs

Response (Doc. #54). Having considered the arguments and the applicable law, the Court defers

ruling on Defendant's Motion for the reasons set forth in this Order.

I. Background

A. Plaintiff's Circumstances Plaintiff is a transgender woman who has been in jail in Texas for over 12 years. 1 Doc.

#35 ~ 1. During that time, she has been repeatedly raped, forced into non-consensual sexual

relationships, and assaulted when she resisted demands. This has occurred in each of seven

different prison units in which she was housed. She alleges that prison officials have ignored her

pleas for protection. In this Section 1983 action, Plaintiff sues Defendant Brad Livingston, the

Executive Director of the Texas Department of Criminal Justice ("TDCJ"), alleging that he

knows inmates regularly prey on gay and transgender prisoners but is deliberately indifferent to

1 Plaintiff was sentenced to twenty years in prison for aggravated kidnapping. Doc. #35 ~ 29. According to Plaintiff, her ex-boyfriend refused to retum a used Chevrolet that he was testdriving to the dealership. Id. at n.4. Instead, he drove around for nearly two hours with the salesman trapped in the passenger seat and Plaintiff in the back seat. !d.

Case 4:14-cv-03037 Document 77 Filed in TXSD on 03/14/16 Page 2 of 20
their plight.2 Taking Plaintiff's allegations as tme, her Complaint recounts over a dozen different
incidents of rape, assault, or forced sexual relationships by different inmates at the TDCJ. She identifies them by their initials in an attempt to avoid retaliation. Doc. #35 ~ 33 n.5. For example, around March 2007, Plaintiff was placed in a cell with an inmate named C.X., who threatened her with a knife, held her down, and raped her.Jd. at~ 36-37. When Plaintiffreported the rape to a guard, C.X. threw a fan at Plaintiff's head. Id. A nurse treated Plaintiff after the rape and noted "dried secretions to the anal area" and an abrasion on the top of her head. Id. at~ 38. After the incident, Plaintiff was placed in solitary confinement for two weeks. Id. at~ 39. On November 20, 2013, after Plaintiff reported threats against her to TDCJ officials, an inmate named J.T. slashed Plaintiff's face with a razor and called her a "snitching faggot" while other members of J.T. 's gang looked on. Id. at ~ 68. Plaintiff required 36 sutures to close the wounds, which left prominent raised scars on her face.Jd. at~ 69-70.
Plaintiff reported these incidents and many others to officials at the TDCJ, but they did little. For example, after a cellmate named O.R. threatened to rape her and forced her to watch him masturbate, and another inmate named P. 0 .X. demanded that she perform sexual acts for him, Plaintiff reported the threats to TDCJ staff verbally and in writing and requested safekeeping. Id. at~ 40. In response, conectional officers called her a "faggot" and told her that "you can't rape someone who's gay." Id. at~ 41.
The record is replete with similar requests and denials. See id. at ~ 47 (five written requests to transfer Plaintiff to a safer dmmitory between December 2012 and May 2013
2 Plaintiff originally sued numerous other TDCJ officials as well. But the motion to dismiss against Livingston is the only one before the Court at this time, as the parties agreed at a hearing on September 15, 2015. 2 of20

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denied); Id. at~ 49 (April19, 2013 request for safekeeping denied, and TDCJ officials placed her at further risk of assault by calling her a "snitch" and "punk" in front of other inmates); Id. at~ 52 (May 20, 2013 request for safekeeping denied because "there was no evidence or witnesses presented to substantiate your claims."); Id. at~ 54 (request for safekeeping denied on October 22, 2013 for insufficient evidence); Id. at~ 55 (October 17, 2013 letter to Hughes unit Senior Warden Kenneth Dean ignored); Id. at ~ 57-58 (November 4, 2013 meeting with Unit Classification Committee ("UCC") headed by Hughes Unit Major Ralph Marez Jr. resulted in denial of safekeeping request); Id. at~ 59-61 (November 6, 2013 written grievance appealing the UCC's decision denied because "[y]ou did not meet the criteria to be placed in safekeeping"); Id. at~ 85 (request for Offender Protection Investigation ("OPI") denied on or around December 11, 2013, and Plaintiff told to "suck dick, fight or quit doing gay shit and you'll be okay but quit running me with OPI's").

B.

Defendant's Knowledge

Plaintiff alleges that Brad Livingston, Executive Director of the TDCJ, was aware of the

particular vulnerability of gay and transgender prisoners to sexual abuse at TDCJ facilities, but

did not take appropriate action to stop it.

Texas prisons have some of the highest levels of sexual abuse in the country. In 2007, the

Bureau of Justice Statistics ("BJS") surveyed 146 prisons and reported that five of the ten prisons with the highest levels of sexual abuse were in Texas. Doc. #54 at 16.3 In 2008 and 2009, the

BJS found that the TDCJ's Hughes Unit reported the highest rate of inmate-on-inmate sexual

3 Allen J. Beck & Paige M. Hanison, Bureau of Justice Statistics, Sexual Victimization in State and Federal Prisons Reported by Inmates, 2007 at 1-2 (2008), available at http://www.bjs.gov/content/pub/pdf/svsfpri07.pdf. The Court takes judicial notice of the BJS reports and other government reports and websites cited in this Order. See Hyder v. Quarterman, No. CIV.A. C-07-291, 2007 WL 4300446, at *3 (S.D. Tex. Oct. 10, 2007). 3 of20

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assault in the country at 8.6%. Id. 4 The second-highest was at the TDJC's Allred Unit, at 7.6%.
Id. Plaintiff was housed in both. From September 2012 to August 2013, the TDCJ's Office of the
Inspector General documented 378 allegations of inmate abuse, including 14 incidents in Hughes, 18 in Robmison, and 24 in Clemens-three units where Plaintiff has been housed. Id. 5
Transgender inmates in particular face a shockingly high rate of sexual abuse in prison. The BJS reported that 34.6% oftransgender inmates repmied being the victim of sexual assault.6 That is nearly nine times the rate for all prisoners, which is 4.0%. 7 The vulnerability of
transgender prisoners to sexual abuse is no secret. For example, the National Institute of
Corrections has stated that "research on sexual abuse in conectional facilities consistently
documented that men and women with nonheterosexual orientations, transgender individuals, and people with intersex conditions were highly vulnerable to sexual abuse."8
Plaintiff alleges that Defendant Livingston was aware of the particular vulnerability of
gay and transgender prisoners to sexual abuse. In 2011, the Depmiment of Justice's Review
Panel on Prison Rape called Defendant to account for the statistics concerning sexual assault at
4 Allen J. Beck & Paige M. Hanison, Bureau of Justice Statistics, Sexual Victimization in Prisons and Jails reported by Inmates, 2008-09 at 7 (2010), available at http://www.bjs.gov/content/pub/pdf/svpjri0809.pdf. 5 Texas Depmiment of Criminal Justice, Safe Prisons Program at 39 to 41 (2014), available at http://www.tdcj .state.tx.us/documents/PREA_SPP_Repmi_2013 .pdf. 6 Allen J. Beck, Bureau of Justice Statistics, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12, Supplemental Tables: Prevalence ofSexual Victimization Among Transgender Adult Inmates (2014), available at http://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf. The 34.6% figure represents the BJS' weighted average of three surveys conducted in 2007, 2008-09, and 2011-12.Id. 7 Allen J. Becket al., Bureau of Justice Statistics, Sexual Victimization In Prisons And Jails Reported By Inmates, 2011-12-Update (last visited December 15, 2015), http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4654. 8 National Institute of Conections, LGBTI Policy Review and Development Guide, (last visited Dec. 1, 20 15), http://info.nicic.gov/lgbti/?q=node/3. 4 of20

Case 4:14-cv-03037 Document 77 Filed in TXSD on 03/14/16 Page 5 of 20
the TDCJ facilities. Id at 17.9 The Panel observed that the TDCJ's practice did not appear to
conform to its policies for addressing sexual assault. 10 The Panel also recommended greater
protection for vulnerable prisoner populations, in particular Lesbian, Gay, Bisexual and
Transgender ("LGBT") inmates, noting that "at Allred, there seems to be considerable sentiment
that when you're gay, you can't be raped." 11 The Panel suggested that prison administrators
provide "consistent, uniform best practices, training, and education" regarding sexual assault. 12
Defendant is also the Chair of the Standards Committee for the American Conectional
Association ("ACA"). Doc. #54 at 14-15. He personally participated in hearings on the Prison
Rape Elimination Act ("PREA"), submitted comments, and provided documents that a PREA
commission used in preparing its recommendations. Id The PREA standards are incorporated in
the TDJC's policy. Id. at 16. Plaintiff alleges that among the TDCJ's policies is a
recommendation that an inmate's sexual orientation and gender identity be taken into account
when assigning housing, including placement in safekeeping, to reduce the possibility of sexual
abuse. Doc. #35 at~ 129. Plaintiff also alleges that the TDCJ's intemal training documents note that LGBT people are vulnerable to sexual abuse while incarcerated. Id. 13 Plaintiff also alleges
that Defendant has been confronted with numerous complaints and lawsuits by LGBT people
9 See Department of Justice, Review Panel on Prison Rape, Hearings on Rape and Staff Misconduct in US. Prisons (April27, 2011) available at http:/Iojp. gov/reviewpanel/pdfs_apr 11 /testimony_livingston. pdf. 10 Id. at 9. Plaintiff quoted the Panel as saying that the TDCJ's "practice does not appear to confmm to [its] policies" and recommending "training to staff on the vulnerability of homosexual inmates and to take steps to protect them from sexual assault." Doc. #54 at 17. Although that is basically what the Panel said, the Panel did not use those exact words in the transcript. 11 Jd. at 18. 12 Id. at 16. 13 Plaintiff does not cite to a copy of the TDCJ's written policies or intemal training documents or point to where the Court might find them. But the Court will take Plaintiff's well-pled facts as true for the purposes of this Motion to Dismiss. See Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). 5 of20

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related to sexual and physical assault in TDCJ facilities. Id. at 16.

C.

The TDCJ's Policies

Plaintiff also alleges in contrast to the TDCJ's written policies, the actual policies condoned by Defendant fail to offer gay and transgender inmates appropriate protection. 14 Doc.

#54 at 21. Plaintiff alleges that Defendant's policies at the TDCJ:

• Fail to screen inmates appropriately or use available information to separate vulnerable inmates from likely aggressors, and ignores that LGBT inmates and inmates who have been sexually abused are substantially vulnerable to future abuse. Cf 28 C.F.R. § 115.41 (Prison Rape Elimination Act National Standards) (requiring that inmates be screened for vulnerability and separated from likely aggressors, taking into account "whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming").

• Provide insufficient supervision to protect inmates from sexual abuse due to failure to recruit and retain qualified employees and the lack of video surveillance. Cf 28 C.F.R. § 115.13 (requiring "adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse").

• Provide perfunctory and inadequate training on preventing sexual abuse and responding to allegations of threatened sexual abuse. Doc. # 35 ~ 151. PREA training is considered a joke for many TDCJ employees, who believe that sexual assault of LGBT people is funny. Id. High turnover rates and the influx of new staff means that many staffhave not been trained or had only basic training. Id. at ~~ 151-52. Cf 28 C.F.R. § 115.31 (requiring training on a "zero-tolerance policy"
for sexual abuse).

• Condone a culture of degradation and disrespect for LGBT people, pursuant to which it is common for TDCJ staff to call inmates "faggot" and "punk," to speak

14 Plaintiff also argues that Defendant's policies violate specific provisions of the Prison Rape Elimination Act National Standards, 28 C.F.R. § 115 et seq. Comis have held that the PREA does not establish a private cause of action for allegations of prison rape. See Krieg v. Steele, 599 F. App'x 231,232 (5th Cir. 2015) (unpublished) (citing cases). The Comi will not now address what effect, if any, the PREA regulations would have in this case. See Ard v. Rushing, 597 F. App'x 213, 220 n.6 (5th Cir. 2014) (unpublished) (noting that Prison Rape Elimination Act had no relevance in case where prisoner alleged Eighth Amendment violations because "[e]ven if [Plaintiff! is conect that [[Defendant's] policies fail to 'adhere to those national standards,' [Plaintiff! is not pursuing a cause of action under that statute.").

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to them in a derogatory manner, to suggest that gay incarcerated people enjoy being raped, and to allow other incarcerated people to target LGBT people for abuse because oftheir sexual orientation and/or gender identity. Doc. #35 ~ 153. Cf 28 C.F.R. § 115.31(a)(9) (requiring training on "[h]ow to communicate effectively and professionally with . . . lesbian, gay, bisexual, transgender, intersex, or gender nonconfmming inmates").
• Allow for perfunctory and incomplete investigation of inmate complaints about sexual abuse, ignoring or refusing to actively investigate grievances and other complaints and retaliating against persons who file grievances to deter future complaints. Doc.# 35 ~ 155. Cf 28 C.F.R. §§ 115.34, .71 (requiring correctional officers to gather and preserve direct and circumstantial evidence of sexual abuse; take immediate action to protect inmates from a substantial risk of imminent sexual abuse; and take an active role in the investigation, interviewing alleged victims, suspected perpetrators, and witnesses, and reviewing prior complaints and reports of sexual abuse involving the suspected perpetrator).
• Use the threat of isolation, including so-called "protective custody," and other forms of retaliation to deter safety-related complaints. Doc. #35 ~~ 147-62. Cf 28 C.F.R. § 115.43 (prohibiting the use of involuntary segregated housing unless a determination has been made that there is no available alternative means of separation from likely abusers and, in any case, only "until an alternative means of separation from likely abusers can be arranged").
Doc. #54 at 21-22.
On October 23,2014, Plaintiff sued Defendant under Section 1983, alleging violations of
her Eighth Amendment right to be free from cruel and unusual punishment. She seeks damages
and injunctive relief ordering Defendant to keep her out of the general population and in
safekeeping. She also seeks the expungement of any disciplinary violations on her record
connected to Defendant's failure to protect her. Doc. #35 at 50.
Defendant moves to dismiss, arguing that Plaintiff has failed to state a claim against
Defendant, or in the alternative, that Defendant is entitled to qualified immunity for his actions.
Defendant moves to dismiss both for lack of subject matter jurisdiction pursuant to Fed. R. Civ.
P. 12(b)(l) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Currently,
Plaintiff is in safekeeping pending the outcome of these proceedings by agreement of the parties.
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Doc. #54 at 8. II. Legal Standard
A. Motion to Dismiss Under Rule 12(b)(l) The court must dismiss a case when the petitioner fails to establish subject matter jurisdiction. Fed. R. Civ. P. 12(b) (1). See also Serv. Employees Int'l, Inc. v. Dimensions Int'l, No. CIV.A. H-09-2878, 2010 WL 5173305, at *3 (S.D. Tex. Dec. 13, 2010). "It is incumbent on all federal comis to dismiss an action whenever it appears that subject matter jurisdiction is lacking." Stockman v. Federal Election Com 'n, 138 F.3d 144, 151 (5th Cir. 1998). A case is properly dismissed for lack of subject matter jurisdiction when the comi lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass 'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted). The burden of establishing federal jurisdiction rests on the pmiy seeking the federal forum. Stockman, 138 F.3d at 151.
B. Motion to Dismiss Under Rule 12(b)(6) A party can seek dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must "accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff." Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). "To survive a Rule 12(b)(6) motion to dismiss, a complaint 'does not need detailed factual allegations,' but must provide the plaintiffs grounds for entitlement to relief-including factual allegations that when assumed to be true 'raise a right to relief above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). That is, "a complaint must contain sufficient factual matter, 8 of20

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accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570).
C. Qualified Immunity Qualified immunity shields government officials performing discretionary functions from liability for civil damages so long as their conduct does not violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L. Ed. 2d 396 (1982). When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en bane). In the context of a motion to dismiss, the plaintiff's burden is discharged if "the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity."Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (quoting Wicks v. Miss. State Emp't Servs.., 41 F.3d 991,994 (5th Cir. 1995)). To overcome a defense of qualified immunity, the plaintiff must satisfy a "two-prong test."Atteberry v. Nocona Gen. Hasp., 430 F.3d 245, 253 (5th Cir. 2005). First, the plaintiff must allege that the defendants committed a constitutional violation under cunent law. Id. Second, the plaintiff must allege that "the defendants' actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of." Id. The order by which the Comi evaluates these two questions is now left to the Court's discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
III. Analysis Although Plaintiff initially sued a number of TDCJ officials, the only Defendant before
the Court now is Brad Livingston, Executive Director of the TDCJ. First, the Court will address
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whether Plaintiff has stated a claim under Section 1983. Next, the Court will consider whether Plaintiff has alleged sufficient facts to defeat a qualified immunity defense. Finally, the Court will consider whether Plaintiff's claims for injunctive relief are cognizable.
"Section 1983 provides a private right of action for violations of federal law by those acting under color of state law." Wells v. Thaler, 460 Fed. App'x 303, 308 (5th Cir. 2012). To bring a claim under Section 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). The first element of the analysis overlaps with the qualified immunity defense. There is no dispute as to the second element, that Defendant, Executive Director of the TDCJ, acted under color of state law.
Section 1983 does not attach liability to supervisory officials for the misdeeds of their subordinates under a theory of vicarious liability or respondeat superior. Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Instead, "[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) (quoting Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)). "In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations of others' constitutional rights committed by their subordinates." Id (emphasis in original). Deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his
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action." Id at 446-47 (citation omitted).
A. Whether Plaintiff Stated A Claim Under Section 1983 Plaintiff alleges that Defendant violated her Eighth Amendment rights by failing to take
reasonable safeguards to protect Plaintiff and other gay and transgender individuals from a substantial risk of violence, sexual assault, and sexual exploitation, knowing that transgender persons are particularly vulnerable to that type of danger. Doc. #54 at 9.
1. Principles Under the Eighth Amendment, the government may not inflict cruel and unusual punishment. The Eighth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. Failure to protect a prisoner from violence at the hands of other prisoners may violate the Eighth Amendment. The Supreme Court formally recognized and described this failure-to-protect theory in Farmer v. Brennan: [P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners .... [G]ratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objectiv[e], any more than it squares with evolving standards of decency. Being violently assaulted in prison is simply not pmi of the penalty that criminal offenders pay for their offenses against society. Johnson v. Johnson, 385 F.3d 503, 524-25 (5th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (second and fifth alterations in original) (citations and internal quotation marks omitted). The Court went on to explain that, to succeed on such a claim, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious hmm" and that the prison officials acted with "deliberate indifference" to the inmate's safety. 511 U.S. at 834. An official is deliberately indifferent when he "knows of and disregards an excessive risk to inmate 11 of20

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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." Jd at 837. The official's knowledge of the risk can be proven through circumstantial evidence, such as by showing that the risk was so obvious that the official must have known about it. Id at 842.
2. Application Here, the Comi finds that Plaintiffhas sufficiently alleged a violation of Plaintiffs Eighth Amendment rights. There is no question that Plaintiff was incarcerated under conditions posing a substantial risk of serious hmm. In addressing this Motion to Dismiss, the Court has recounted only a fraction of the horrific series of assaults, rapes, and abuses endured by Plaintiff during her time as an inmate at the TDCJ. They are enough to offend even the sternest of dispositions. Plaintiff has also sufficiently alleged that Defendant knew of and disregarded this substantial risk to Plaintiffs safety. BJS statistics reveal high rates of sexual assault at TDCJ facilities, and the Office of the Inspector General has documented numerous allegations of inmate abuse there. Further, Defendant was well-positioned to know about the problem. In addition to his role as Executive Director of the TDCJ, Defendant personally participated in PREA hearings about prison rape and is the Chaiiman of the Standards Committee for the ACA. The Department of Justice called Defendant to account for the alarming statistics concerning sexual assault at the TDCJ, specifically noting the vulnerability of gay and transgender prisoners to abuse. Moreover, Plaintiff alleges that the TDCJ' s own internal documents and policies note that LGBT people are particularly vulnerable to sexual abuse, and recommend that an inmate's sexual orientation be taken into account in housing decisions. Nor is it any secret that gay and transgender prisoners are vulnerable to abuse in prison. Given the foregoing, it is difficult to believe that Defendant did not know about the problem. In any case, Plaintiff has done more than 12 of20

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plead a threadbare recital of the elements of a cause of action, Iqbal, 556 U.S. at 678. The Comi finds that Plaintiff has sufficiently alleged facts to show that Defendant knew of, and was deliberately indifferent to, the high risk of sexual assault of gay and transgender inmates at the TDCJ facilities.
3. Supervisory Liability Plaintiff alleges that Defendant failed to train, supervise, or promulgate policies at the TDCJ to stem the problem of sexual abuse against gay and transgender inmates. Defendant argues that claims for failure to train and supervise are claims for respondeat superior, which are not cognizable under Section 1983. But Plaintiff is not seeking to hold Defendant vicariously liable for the actions of his subordinates. Instead, Plaintiff seeks to hold Defendant liable for his own conduct in failing to train and supervise TDCJ personnel or implement policies to deal with the problem of sexual assault against gay and transgender inmates. Supervisory liability in that context is alive and well. See Morgan v. Texas Dep 't of Criminal Justice McConnell Unit, 537 F. App'x 502, 509 (5th Cir. 2013) ("A defendant may not be held liable under § 1983 pursuant to a theory of respondeat superior, but may be held liable for his or her role in a constitutional violation premised on the defendant's individual conduct as a supervisor, for example, his or her failure to train."); Martone v. Livingston, No. 4:13-CV-3369, 2014 WL 3534696, at *7 (S.D. Tex. July 16, 2014) (Plaintiff could hold TDCJ prison officials liable in supervisory capacity for "creating and approving the dangerous conditions that caused [Plaintiffs] heat stroke, and failing to remedy them."). Accordingly, the Comi finds that Plaintiff has stated a claim against Defendant in his supervisory capacity.
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B. Whether Defendant Is Entitled To Qualified Immunity I. The Reasonableness ofDefendant's Conduct
Even if Plaintiff has sufficiently alleged a violation of her Eighth Amendment rights, Defendant may be entitled to qualified immunity for his actions. 15 The first prong of the qualified immunity analysis asks whether Defendant committed a constitutional violation under current law. Atteberry, 430 F.3d at 253. This prong overlaps with the analysis under Section 1983, and the Court has already found that Plaintiff stated a claim for violation of her Eighth Amendment rights. For the reasons discussed above, the Court finds that Plaintiff has overcome the first prong of the qualified immunity defense.
However, Defendant may still be entitled to qualified immunity under the second prong of the analysis if his actions were not "objectively umeasonable in light of the law that was clearly established at the time of the actions complained of." Id. In other words, "[u]nder Farmer, prison officials violate the Eighth Amendment only if they are both aware of a substantial risk to inmate safety and fail to respond properly." Johnson, 385 F.3d at 525 (emphasis in original). "The Farmer Court emphasized that there is no Eighth Amendment violation if the official 'responded reasonably to the risk, even if the harm ultimately was not averted."' Id. (citing Farmer, 511 U.S. at 844).
15 Defendant cites Elliott v. Perez for the proposition that a heightened pleading standard is applicable when a defendant-official raises the defense of qualified immunity. 751 F.2d 1472, 1473 (5th Cir. 1985). But that holding was abrogated by the Supreme Comi in Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993) ("[a] federal court may not apply a 'heightened pleading standard'-more stringent than the usual pleading requirements of Federal Rule of Civil Procedure 8(a)-in civil rights cases alleging municipal liability under§ 1983."). 14 of20

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It is not exactly clear what type of action a prison official must take to protect LGBT prisoners. But sending an LGBT prisoner back the general population to fight off attackers is not a reasonable response:
Although it is not clear exactly what type of action an official is legally required to take under Farmer, the Supreme Court's opinion does make it abundantly clear that an official may not simply send the inmate into the general population to fight off attackers. . . . The defendants, at least according to Johnson, repeatedly expressed the view that Johnson must "learn to f*** or fight," which runs directly counter to Farmer's directive. Given the facts that we must assume for purposes of this appeal, this was not a reasonable response and it indeed contravenes clearly established law. Johnson v. Johnson, 385 F.3d 503, 527 (5th Cir. 2004) (internal citations and quotation marks omitted) (noting that Farmer was factually similar to Johnson in that it involved an effeminate prisoner who was raped after he was put in the general prison population-as does this case). Here, TDCJ officials responded to Plaintiffs plight by repeatedly placing her back into the general population of the TDCJ, where she alleges she was sexually assaulted in each of the seven different prison units where she was housed. Her complaints were ignored. Her repeated requests for safekeeping were denied. She was told to "suck dick, fight or quit doing gay shit and you'll be okay." Doc. #35 at ~ 85. That "runs directly counter to Farmer's directive," and contravenes clearly established law. Id. Accordingly, Plaintiff has alleged facts that could defeat qualified immunity. The Court notes that this case is distinguishable from Johnson, in which the Executive Director of the TDCJ was afforded qualified immunity. In Johnson, decided on summary judgment, a gay prisoner brought a Section 1983 suit against fifteen prison officials-including the then-Executive Director of the TDCJ-after he was repeatedly raped and sold as a sexual slave during his eighteen month incarceration at the TDCJ. Id. at 512. The court reversed the district court's denial of qualified immunity to the Executive Director, finding that he was 15 of20

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qualifiedly immune because he responded reasonably to the plaintiffs complaints by refening the matter for investigation or taking similar steps. !d. at 526. The court noted that "given the size of the operation that [he] oversee[s], [the defendant] cannot be expected to intervene personally in response to every inmate letter [he] receive[s]." !d.
Here, although the facts are similar, the legal theory is different. Rather than allege that Defendant failed to reasonably respond to her complaints, as the plaintiff did in Johnson, here Plaintiff directly challenges Defendant's policies in failing to protect gay and transgender inmates from abuse. The reasonableness of those policies, or lack thereof, is what is at issue here.
2. Deferring a Decision on Qualified Immunity Although Plaintiff has alleged facts that could defeat qualified immunity, the reasonableness of Defendant's conduct is another question. Prisons are dangerous places, and the State's resources are limited. Questions need to be answered before the Court can make a decision on qualified immunity. Specifically, more facts are needed before the Court can say whether Defendant's conduct was reasonable. The Fifth Circuit "has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense." Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). The court must find that the plaintiff has pled "specific facts that both allow the comi to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity." !d. "[I]fthe comi remains 'unable to rule on the immunity defense without fmiher clarification of the facts,' it may issue a discovery order 'nanowly tailored to uncover only those facts needed to rule on the immunity claim."' !d. (citation omitted). 16 of20

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Here, the Court will order limited discovery tailored to the issue of qualified immunity. The Comi finds the decision in Martone v. Livingston instructive on this point. No. 4:13-CV3369, 2014 WL 3534696 (S.D. Tex. July 16, 2014) (Ellison, J.). In Martone, the plaintiff brought a Section 1983 claim against Livingston (the same defendant as here) and other defendants for the heat-related death of a prisoner at the TDCJ. !d. at *1. The court denied Livingston's motion to dismiss, holding that "Plaintiff's allegations that the TDCJ Defendants failed to act, despite their knowledge of the risks to heat-sensitive inmates and the resulting heat-related deaths, rises to the level of deliberate indifference sufficient to state a claim for supervisory liability under § 1983." !d. at *7.
But the court deferred the qualified immunity decision-whether Livingston's actions were reasonable in light of clearly established law-until after limited discovery. !d. at *8-9. Following the lead of other cases, 16 the court found that more information was needed, such as how the defendants learned about prisoner deaths, whether the defendants ordered studies into the cost of reducing extreme temperatures, whether the defendants considered other options, etc. See id. at *9 n.4 (setting forth the bounds oflimited discovery).
Here, the Court will do the same. Given the outstanding factual questions presented, the Court defers ruling on qualified immunity until some discovery has taken place. Discovery shall be limited to the personal knowledge and conduct of Defendant as it relates to Plaintiffs circumstances. Discovery may include: Defendant's knowledge of abuse against gay and transgender prisoners at the TDCJ, including any prisoner complaints during the past five years and how Defendant responded to them; Defendant's knowledge of the vulnerability of gay and
16 The Martone court looked to the decisions in Webb v. Livingston, No. 6: 13-cv-711, 2014 WL 1049983, at *8 (E.D. Tex. Mar. 14, 2014) (Schneider, J.) and Hinojosa v. Livingston, No. 2:13cv-319, 2014 WL 1276199, at *7 (S.D. Tex. Mar. 27, 2014) (Ramos, J.) for its discovery guidelines, in which parallel litigation was ongoing. 17 of20

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transgender inmates to sexual abuse; any advice that Defendant received or gave regarding the plight of gay and transgender prisoners at TDCJ facilities; and any policies, procedures, or training that the TDCJ adopted or considered adopting, and whether they were followed in Plaintiffs case.
C. Injunctive Relief 1. Prospective
Plaintiff seeks itDunctive relief to keep her out of the general prison population or in safekeeping. Defendant argues this request is moot because when Plaintiff made the request, she was housed in the Robertson and Hughes units, but since then, she has been moved to the Clements unit. Doc. #40 at 8. Thus Defendant argues that there is no "reasonable likelihood" that she will again be moved to Hughes or Robertson. Id.
That argument misses the point. Plaintiff alleges that she suffered unconstitutional conditions at many different prison units within the TDCJ. Which one she is housed in at the moment does not matter. If not for the current safekeeping agreement between the pmiies, Plaintiff could be moved again at any time. Case in point, by the time Plaintiff filed her Response to Defendant's Motion to Dismiss, Plaintiff was moved yet again, to the Telford unit. Doc. #54 at 28. Plaintiff's transfers to different units are "capable of repetition, yet evading review," and thus Plaintiffs request for injunctive relief is not moot. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (U.S. 1975).
2. Retrospective Plaintiff also seeks expungement of her disciplinary records at the TDCJ. Defendant argues that this constitutes retrospective injunctive relief in violation of the Eleventh Amendment. That is not so, because the request for expungement is prospective in effect. See 18 of20

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Wolfe! v. Morris, 972 F.2d 712, 719 (6th Cir. 1992) (finding that expungement of disciplinary records, based upon punishment imposed in violation of First Amendment, awarded only prospective relief since, "[a]s a practical matter, the district comi's order merely prevents the prison system from considering the discipline imposed in this case as part of the inmates' records in the future."); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986) ("[t]he injunctive relief requested here, reinstatement and expungement of personnel records, is clearly prospective in effect and thus falls outside the prohibitions of the Eleventh Amendment."). In any case, Plaintiff later withdrew her request for expungement. Doc. #54 at 30 n.18. Instead, she asks that the TDCJ not be allowed to deny her protection in the future based on past disciplinary infractions she incurred because of TDCJ officials' failure to protect her. That is prospective relief, not retrospective relief, and does not violate the Eleventh Amendment.
IV. Conclusion Plaintiff was sentenced to serve time in prison. She was not sentenced to be raped and
assaulted by her fellow inmates. As the Supreme Court stated in Farmer, "gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective.... Being violently assaulted in prison is simply not pati of the penalty that criminal offenders pay for their offenses against society." 511 U.S. at 833-34 (intemal citations and quotation marks omitted). To the extent that Defendant failed to establish reasonable policies and procedures or to train and supervise TDCJ staff to prevent this from happening, he may be held liable under Section 1983.
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For the reasons stated in this Order, the Court DEFERS its decision as to the qualified immunity of Defendant. The Comi orders limited discovery into the knowledge and actions of Defendant with respect to the policies, or lack thereof, that led to Plaintiffs abuse.
Plaintiff shall remain in safekeeping until such time as the Court orders otherwise. It is so ORDERED.

MAR 1 4 2016
Date

THE UNITED STATES

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 Case 4:14-cv-03037 Document 102 Filed in TXSD on 02/26/18 Page 1 of 4

In the United States District Court for the Southern District of Texas
Houston Division

Joshua D. Zollicoffer; a.k.a. Passion Star, §

Plaintiff,

§

§

v.

§

§

Brad Livingston, et al.

§

Defendants.

§

Civil Action No. 4:14-cv-03037 Jury

Agreed Stipulation of Dismissal with Prejudice

The parties have reached a settlement disposing of all claims brought by Plaintiff against

Defendants. Therefore, pursuant to FED. R. CIV. P. 41(a)(1)(ii), it is hereby stipulated by Plaintiff and

Defendants that the above entitled action against Defendants be dismissed with prejudice.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

JEFFREY C. MATEER First Assistant Attorney General

BRANTLEY STARR Deputy First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

LACEY E. MASE Chief, Law Enforcement Defense Division

/s/Seth Byron Dennis SETH BYRON DENNIS Assistant Attorney General Attorney-in-charge Texas State Bar No. 00790580 Southern District Bar No. 18527

Case 4:14-cv-03037 Document 102 Filed in TXSD on 02/26/18 Page 2 of 4
P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 Fax No. (512) 936-2109
Attorneys for Defendants Livingston, Bales, White, Armstrong and Fuster
/s/ Christin Cobe Vasquez CHRISTIN COBE VASQUEZ Assistant Attorney General Attorney-in-charge Texas State Bar No. 24074047 Southern District Bar No. 1125898 P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 Fax No. (512) 936-2109
Attorney for Defendants Dean, Blanchard, Maldanado, Marez, Pickett, Fox, Gonzales, Webb, Sigmund and Harman
By: /s/ Demoya R. Gordon DEMOYA R. GPRDON ** LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, NY 10005-3919 Telephone: (214) 809-8585 Facsimile: (214) 809-0055
PAUL D. CASSTILLO Texas State Bar No. 240494761 pcastillo@lambdalegal.org
KENNETH D. UPTON JR. Attorney in Charge Texas State Bar No. 00797972 Southern District of Texas No. 635808 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

Case 4:14-cv-03037 Document 102 Filed in TXSD on 02/26/18 Page 3 of 4
3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219-6722 Telephone: (214) 219-8585 Facsimile: (214) 219-4455 and Christopher J. Kondon** Christina N. Goodrich** Saman M. Rejali** K&L GATES LLP 10100 Santa Monica Blvd., 7th Floor Los Angeles, California 90067 Telephone: (310) 552-5000 Facsimile: (310) 552-5001
**Admitted pro hac vice
Attorneys for Plaintiff
Notice of Electronic Filing
I, Seth Byron Dennis, Assistant Attorney General of Texas, do hereby certify that I have
electronically submitted for filing, a true and correct copy of the above and foregoing Agreed
Stipulation of Dismissal with Prejudice in accordance with the Electronic Case Files System of
the Southern District of Texas, on this the 26th day of February, 2018.
/s/ Seth Byron Dennis SETH BYRON DENNIS Assistant Attorney General

Case 4:14-cv-03037 Document 102 Filed in TXSD on 02/26/18 Page 4 of 4
Certificate of Service I, Seth Byron Dennis, Assistant Attorney General of Texas, do hereby certify that a true and correct copy of the above and foregoing Agreed Stipulation of Dismissal with Prejudice has been served by means of the Southern District of Texas’s CM/ECF filing system, in accordance with the Federal Rules of Civil Procedure on this the 26th day of February, 2018, addressed to all parties of record.
/s/ Seth Byron Dennis SETH BYRON DENNIS Assistant Attorney General

 
 Case 4:14-cv-03037 Document 103 Filed in TXSD on 04/02/18 Page 1 of 1
United States District Court Southern District of Texas
ENTERED
April 02, 2018
David J. Bradley, Clerk