Johnson v. Johnson, Not Reported in F.Supp.2d (2003)
2003 WL 21510816 Only the Westlaw citation is currently available.
United States District Court, N.D. Texas, Wichita Falls Division. Roderick Keith JOHNSON, Plaintiff,
v. Gary JOHNSON, et al., Defendants. No. Civ.A. 7:02-CV-87-R. | June 9, 2003.
Opinion
ORDER CERTIFYING ISSUE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES FOR INTERLOCUTORY APPEAL
FISH, J.

*1 Be it remembered that on this day came to be considered Defendants’ motion to certify for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the issue of exhaustion of administrative remedies under 42 U.S.C. § 1997e as addressed in the Defendants’ Partial Motion for Summary Judgment. After considering the motions of the parties and the arguments contained therein, the Court finds that the issue is a controlling question of law with a substantial ground for a difference of opinion and that an immediate appeal may speed the process of litigation. Therefore, the Court is of the opinion that the following order should issue:
It is hereby ORDERED that Defendants’ Motion be GRANTED and this Court hereby certifies for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the issue of exhaustion of administrative remedies under 42 U.S.C. § 1997e.
	  

1

 
 ItJ Case 7:02-cv-00087'T-MH-B-Fl? DLoc\utm\\eIn\te3:7:9il F:il5eTdA0T5/~225l/12DbP\agte21.o~f 1T4 !PbaugelI-Dl3296 fO,z -n+e NDftrt\E.R~l lYLSTR:r:cr ei= ~)(A~ bA-LL~ D'I.\/ni.cJ

M~MDRAtJ1JuM ~FLA1Al. :CJJ .Su«b~• t>F'" Yltllntr#b hloft!JJ1 fOt_ f.it~/?t:~f}f~es'tr~~n~ ~oeL f\11\d
PreJ, M\ 1'\Aftf .II\Jul'\L-\-; bN

.SttfleMenl DFIHE ~e:

7/Jis JJ ~IJ
&,LatLse Vhis /Ju~-r
v,'-f)IAt/o(J 5 tl' Wit LAIJ
?n 'jf)n oflltiA/5.. And Jt

.Aeh5cyNll'kolfll/i1~ehl_d~hL7'Itfr'Nl.4~.SrnfM f'. hM IothlJtnJJIu}S5n~nl/pnJ{C'u/}luremukiili'5JaI:JsIYiA:f?iwsri--l;k-ls/e6f_ tiLS' rln ,!zJurtcftun Bt &wt WtLilAsf

Vi/J I,q--h/JrtS AkiJ hAY;; 4 Crmlfnu,/16 !!mc_.f. 6~-t hf Vll~J-5 R.Je10~t;/

i&-AlhMlfDtCTMtOftv(t;rlJeh.1~~attLif,ieuub'+Pr11'A;e1A1ehr11?11v1a-'i1fOftJ1MJ1'rufAleit£Al;/l.(,ofrd7hhiiJ1Jl,11dll;/1JMC?Al/A{~-1o!1Aft~.41l:UfD/Fbo~?Ir.l_+tr/rhAl11JWn~:JA'JdJl~&)Itl;A2t'lnli.o!:.DffJ,Psni.6r¥.be/1,LDt1Ldh,fJeJ55euain53hduofu5v~uo_nttL)r?u2lfeeJ5:JrlTt_Joe_tJ)tteleJJ/.foLhe,M.I]otInl/fo..71lJf)e!-tuv1fu-£d'1/a1.ovJ5rAAh-1Rt_J'AeY--t/tfJI.ftA-54_:AJRf)?/v}PfJiApt_LAJtAMjsJJo;n-& -lie7vtvf1dlt1MLt.-rJl-teH-Iit'U/lAJJtrVirdvcl'LffJtL~1+vte-ltc~{rA;l-an;f.ni'.;.J5:+J.tYeAJ.h~ffUs-t&5Zntlhl'JlAtfd.bYtbLa'YtIy//1AttIA-ihff/~JfJArt/uhf/F<:Dnk5:,/te.e1~frlrlI9nn/!pIlh?ePtSrAearrn#cpeduftfdtiJf/''r>AJ!t{o'Ytl1t:nnloc!hle/li"·'JffrfFJ1nA-J.n'/A/)£6tt/;~nrJf.1dm;1,lo/}1cs/J/t1J##t-Ad_9k&,J)-~Ll11AR..'f1J.1hffhtn•.t~its11/lAld1l1-JfffL1_nu1tll'Vbldct5f

(1)

~Cadse 7A:02-tcfvr-J00,0m87/I-M>-BMF ifDoici1uJmUeLn.tf.3tb7191 Fil~ ed 05/2f.5.m/1-2-tv-P6aegaec2'Iof ~1v4kcPla1goerID1 32lh9u7 l
l5~ue~ A-11 ~dtr dt:rttftnt; T~A5 ftt'5oY1 tJ~t,/4}~ IDN.R.Ante JJ,t&uf
Ut1du e deJ ~lf lv1 ,q lft An1/U uf hint ~ A ?/~e__ d' JrlftML&JJfrum
tll.lf5·,'de DF te1A5 ,e;lher /Al A kka.J PL llrlvf!Lu s/:t,ks &rrecbm ~ '6h1Vl 7i5 &5u.rr ht~ 5A·~If lh1d fhof ht_ /J movtd IIULfH' Avmln~A-Iwe Jl6rt6Ai'un 11111 ?nn!/ded kPl-a nuiJfol ftaJIA
f.M..e_ ulht'Ch Will flrJ LPrJ6ete ?osr A inrtof' ~ hi5 fiUtJtal llhlht..
/i,e_ .wirefYtf Jbc/AJ ~SPf,-hiJfl find ~duLt.d &urPOJ?UIJ~ I
ZJ-Irmula ~ n JJtfrJve5 h/m !){' his ~f't1n/l'l/ ttnd lhl_ £m}t;,utd
C.nff11tl11ltJf t'JJ Yl.tJ HXA-S ?r(JI)/] Stf31N! Sub~ h,/n V6 Ar1
tlnu5Ualltf h1bh li7st- of ?hlf.s/ciJJ ~flnbeL thu I NIIJ lCtSuJf /tJ
illfh.

/Jr ~-rifiEM£1\J/

TiJ~ ~cT5

A~ 5TI\T~::d 1\YI if.-he__ 5-L/el' And dt!LltlliJJI!vn 5uhrn/lltd

Wi+h '111;~ fhothoa , ifJu 'ilJAt'nwr;p Zlrua/J /Al l!onskn.J kAL~f

~({)On vthi'/AI~ !Alii/ &tow t./hrPH6h tJ/Ih ~/1" Yl?rt!/915 tid AAve__

Hit1A K;lluJ lrJ f3 fAifli'ff{)n (f)(( fefikon/116 /0~ R.eclre5:!J ~h/5

bde vA-ntes A-om/mf;A'-lrveJ tf 41-hd c/11r/ILJ6h I!Je tat~lb /);t his ftJl11&

knd 7rt75tfu-lfol1 Df' LAtJ.5urb A-GA1'tl~f ?rr~n dlrciAJ5 I!!JR.uf

.5ett1DN I I It J nr) I '7ht:. H~A~ ·~t'SDtl PfiJu'A.)~ 1l1<e i3e/rJ6

P).p}/htr14tt/Y l/Jd/tlbunf W if.ht .l?erlou:J rmn-ltv HeAillt XI5XS YoYd

h 'I w,,_ LD/Jdlhbn5 illl 7:So1Afto>1 lhd t/11~ ft-tAJ;nJ;aetf Jo)J~A-12-t/

&of!:,ffYlln t/- Poses A- 6/UJve_ 1?t5K. 1111d cfluuof tk Ylle 111.J1116I

lllAJYit Ill
/-h4~ h'll.Li

mi!. Ji3hd5JJn 1 See 312/e(Jt't:Ho,J
/)f/f!.({ f},s-6r/fJ/AIJLL5 jflp I J1md

1SL, JLj lfll. ~~&n s/t{Jc1 ~a.5s/nb

ex~rerne k
JttraA *'DYJ
hr'M 'fh£rP

M ~
I~ htif !AI he{)

l~hl ~isLilb~{Jtl{ee'el_,AMJ AUf-VnJdwdvcnt!.J'#Avf~lfd5.r'l&fu-A3n1lnj:dJ5l

7JJ IJf tine_ MM/Al
M'M IJ'I h;U5/n6
LJ'u .))fliArAIILJ>1

1- /s,t.,) A-vl tf '~not ..I.A//dtntt J'Ju?vJJ I?Ja~ )J,~ IJJJiuut-IYIJ/IJ

·(\rD+ Keif hun SAte Jtnd h/5 &ttl'/ IAioultf bt IJ£J! ffphzhd

.' J:e u---r; Vl.
.TufJ5d.ll..floiJ
&f 'ht- Yr.5on

S~{_Al~2.tlle/l-~Wcnie~rtfiZ5ui-hr.tiLah,nDdAf\.dJ¥A:5iIlJi)Xf nhd/~5Ddrl#nMn~,"5~S}{AttJ:J>Ai~rnu/bJfphflttuJ/Ju'5J.f

(2)

9h ~Cua(sfee7r:0,2-tcdv-00087-4M-5BfFCADJocu~ ment 3791 F:i:letd()0h5l/215s/~1-2 dePtaog4ec3iJorf k1o4tJPalghe1IDd3298 hum/IIA lfhfl ~ · .f~X-tult!J~#11C tmoJ/6na I ?A-;A.J J /lnd tA.skn l:t
l5t&/c YraunW # { Jte &le-I' mul dJec!aJuJI!oJ?)

lfRbue:MEAlt

YoltJ-r X.

"J\. Jile vLA~Ti+f :1:::, nrR£ArtWE/) L\\-h\-

T.~I<ef'h-KAblt th'H.:M

The. PtA,'nt.Hrf flt1 ~) ~f ht- h14"J bu11 drn/rrl !_aJu fat A-
St::rioc.t\ 1YU.liic.A-) nt:.Ltl !.mvrtrAff ~ ~ 9h'isic.lAo~ in~wud,Df1~, S.\lLh
Lo(}duLf h..f ff,)otJ p{{ft:J'~l'5 t'3 A el.taA Vrol4tiotJ d' ~t' f}l.hfh lmJ~+:
7lV L/611#. Atn.tndf'fLIIlf ~u ;rl5 9r,~01'1 dt/o'Al~ io Wotll'dt 'Pau wt-1-n
MulltAI I!..AJie. lhtd ifh~~ ~u~r~tvUtJ~/fldu.dl!S M..tfl~aiiJeLlth. &-hilt l/,
&tlmbJej '729 t/.5.'/7, /I)?J iiJ4(Jt;?~) Lfrt e 'llll-t'IJ-!f/'/ Allt66 ttho.flh~

1Jrolvr16ed l:lo/Afr'ofl A:nd Je11St2,y> deflr/v11.Jfbr1 t5 ?s'iCho}DtdLA-11'1

di41MAC/()6 A-vld ..fVX. rlvtie.r1GI16 A Zi:xL:.1~e of 9(J'j/Cht)/o6JCAI t/IA-tlmA lnl

/{((W, S-lf!ff/t{c)f(J~.-dtiJb1vtfhfP.PI1/~YUJ.rII~ea11l4

e J pLlA-I :Z:..s o ~MVI Jo.f.ltJtl1

IAt;ori trod -fh L Stvtrd '(
/AJ ~bMfi\~Aif~ f.so},ghf>

And SPu./AJ i-fz't6i(}t. untf. low__</5 haJ/e_held tfho:l Aouj/116 muriaJII/ I II Yr•'5tvf\'fr~ JA!J1d.JJJ tJnulikM-s uf ~ttefl.4t f5olfl+io11 ~~ unl.bmfflu~itn}P
or Jone.1-e:l' 1}, ner6l ~ lb'f {:jufP. WID'J{p JJJII.J>-25r,J. {). JJrs. 2LJoiJ, t!At...
P51f e.No6icAl /m ?14cf- lsolaftd &r1 R"()f mt11f' &n have_ Lit'~kt+ol-L--s Lilt15-e_auenee5 ·.ho1/tfrJ?o~tf ~ heRober#~ 1 gl/Lf h2.d 1310 ,, 3.13
or {']-lit P-t'i.. l'iK2t) ' MLJdr,d Y. bvYYilZ, g[(1 (; 5aPA tlt/6 ~I Z6 ~
LAlc b. I1A-I' JCJ'ISJ ( H/Jdi/16 c./J1e JZ:,t__ Mlrl~Q/ i/Jn~"::> {)/) lhDSt._/fl_t_Jcf
·+o deile)oP nunhl-1 iJint'-$ i5 lJIJrtO!iPnAbJe. tmd Jh'pJIJ.f/3; 111~
l(J bhin 1\rv\endIVU-,n tJ. J5ol A-hiJYJ tLJtn ?t;t¥/de- ..uk.etJ?L~t.sj
W WDr5en 'h..ur Csndrkf)tJ rl11d </-JuJu t-Ore llfb/1-J'k:!> WJe,r r.'bnh.

• I_ ib

bi'

f\ Th -t-ree_

t fltJ./IJt.hlf' .fmrv t.Ju.J.eJ

"f-.AViwltJ~esunW~.aa.l lAe

rlhu1t175fh5ehrernudnt~nJlAJ~d11/to/Jll;tlettf>?tlJ>hf

a{' k e EI6h hi -itnutd.MLn ~ &L/.i!J:Je hf5 ~s+ J!e.i.J.La)&.sJ/j/JMU(J!b 'I

bth16j ltntJ 'fuLaUje_ ?n~ol) of4?o'A)j AY\d Yr/.\ofl buAYdJ h t!}\fQ:'

JBrAnduJ h'm A ''5th'feh 1 he /)ot.J M.-t:-es A-.Sub-5-ffr,IJ/;!H) ~ttfY

h~+ttu c.f!e;yulfl -ks~tlulf I 'BfufAl &offtJ,j I Ard ei/EJ1 heah hV

be111h Re_taJJ(td fo nxA~ rr/50() .sl.f5~ R~-tbtlar ~ 11e-W ~.,

(3)

'C1aFset7e:02-fclv'-0~0A0s87-'Mir-BtFsoDno.cu~mlefnt&3k79M

dDe-~ Filed 05/25/12 t1b+

Page 4 of 14 PageID 3299
L'PvtA-IL •'n tsmfJJIAnce

'hv w:%

f1bhfh ~ncJme4rf -lt-r\c) lf:Ao+ hl~ ~J:/UI} ~ rdA5

She~ he_~~ ir1 brAve_ 1A-n6-ef. friflo5ir1b /Jrlson-t/!5 i1J

bAn6tr-ou5 CJJ.t1dl-HoY6 Maf 11/oJAf., lht &msff-ltJ.JIAn Jh1cl~l5bt1

KJfihY!.!~ti-/1 v;ourlt ffie &t7!!iltkrhbtJ tJnPn Yn£)/ Kllol.JifJtlf ~

ft ?r;":lofle-1 irs A fJ]t1d/.Jio11 fflaf %~5 -hl Ur1 ll-ASonAblt f(fs1< of Yer-IIJLO Dttma6t </o Wa+ ~f51J~ lv..al/1.. Jk:LUtJ6 tJ

1\ttK\nnt'_\1' 5b~ t/.~. d5 {_Jt}t}~)~ 1htd ~f.5M of¥tcc'A-J~ 1/lu/Ak:J
'ffu lnr1~~+tDil ulhPII \fru_tf lVu 'd~llbv!ohlf lndlfFe-rtrrliJ
To tl .Pr:.s~>ntf .S Jtt~t-'1 Pfrtemer v. Br-e nnAnJ SIJ u.~. ~~

~3k--3•7[Jqqq),
trJl(lj/a lfl l/n,'J

~n
&.se_

I4~-hCuun~ 51t.fu#~oAr'lIoCllulm/5R-feaBfJ.ut/fr~eJdhov/-J6j1

* 'fro+u+ Utr A-net ~t'i. ff,-trfu v, fJDPieflJ ulf h.td 111~
J/S2 (5ftt llt~ JtJSo) l.Prl5otl oP#cJA-15 h14d A 3-~ihn5th;HH LIMtr -fh, f./6hfll c.Anundnun.f tffoh.c-fhl.s s~.W lh>d cffJuj

"1YAr1S~ WAS fr-P{)(oW!Afr t, IA.ltilKtr J/, f.pt,KAai_l; 113 {.zd

I 3?tf Lg·-t~t tle. J9K3J ( l.u:Au e~+ 'k b-e_ TriHl~fovu.d i1J An~>-lner­

tfrl~on S~ ~-fua., ~lots S-AA,-t-1 U~ 6,- Ar.+~) ~ 9}AtiJJrf

A-1Jf bt) Y'h 4 ~ t-h f !!~:Jnd/liPn I ctmd lfrlh1S fbt 13 Aa. W fit
·+'Wks ?r/5pYJ S'lsfim ls lll Z I~J-tAI:tJn A6N11.rl-'htm ~
fJi£)) Ci~)'ob h)j ~"'ars-/ ~ndMl-ll+ f]t>,+ ~ /}Jt lrrtevM1u!:J

-A-rlnJ fnM JWerCI.s/tJ6 his ltrkh I~ /){/_~~5 tJ,· t.hL buLh, :r-f

/5 Untonsktu~I>Ylol t/o l&fa},'Afe ttbMI'I~-+ ~~~l)()tAJ; fllr-

f.si~rs·s;nb ·tf:iu 'l/6hf bFaul!J5 ff 14P bur~ And urf-

unsJ/1-u Htrnc;} hfi411AiiJH tn l/ Be. hrrudim b l/ AJJ

tflri'nJunt~on tDf!h~IAJ

~ ...fvtn
~}ft_ ll

/{'
t1)}J

Wt PrAt:<fiL~.5 flAt nrl ~allf
b if On auiAAdtJtdlhrlo.k5. J?v,z lh

Pari

~11/Je-, b'J 9 l:zd JIJ~ I /15'1--(sfit:J'L, 19~2)

!i.e I?Ail~ler /1J 1Z-fa£'Aflu11 foR. br/IJ~~/16 J&wsulb
/DJI ~:£eJtC-t'-3•lfll ll'ht.u l!on!JitlihradoJ ~ID.hb t1.AJ LJnl11wiUJ
14-s rut w~~~5frJL-5 t/A4f JiJJiuusJt/ c/lu_urhn h ?r;sl)ntr.s
LJf~ LM Jiifl.ll. H+2ht41r/s II~A.JoJ/l', 7tJ.J /)u/&3~~ fnCJ l 9 *- Dli. IC1~.3) MDrr1~ Vc '?ovJeJI 1 1!/J/.9 ·~:3d bR.d,~R1
[51~ ~e-. ZDo6) { trl'h15fbt Y, A rnll4£ ~Ur~ }>,!J~n)J

5-t-t- ~.6D ~5 ~+W r'~tl St:LhofJ Lc+L~~evaJ'n~f'

(lf)

A.5 #fll or L!UJ fll Case 7:02-cv-0008Q7-M-BfYF) (DJocument 379 Filed 05i /25/12f Pfoagrerl5fnotfu1'n4!JPadgetlIDtlv3l3l0fi0AIJ

IJt' Cot1~-\++t.ti0r1al ~"bht5 LOn~hri!.J XrreJarllh}e_ ~,

El r~ v. Burt15J 4 J 1 LJ,5J 3'+1, 313 {ICj?{,)j llrn.JAluW

liuiK./n6 ~ ~bC.r'A #otJ ~ J".tJt~ tJ. ~iilJ of- {D5 ~·dt-S 1 55q
{:-,3d 10% I JD s8- 57 rq~-~t tlt. 2n;CV fhl5 flri!L&/J(_})JJJ btfll

-kPPJlrd In ?lt f:3d

VlrfSD
J./ft_gl

n /,'-/t6A4fvn_ 6t>JJ"ei.GJJIJ
tf~J f211d &t. /91{,) J

, J.p-r JOJI 'I
/lPtJ~OfYJt_ lf,

1/. lru6AA'n1
f'IO(f/SJ ggg

{, zd 311 ' 3?8 ({p -/11 &'t. 11tf1) 5 M 1-fCht11 f/. Litt¥110 1'-1't1 (.zd
or g0~, go~ ( Ztld ~f t \9ts~)j IULL\rodoo "' Litl{ A\bu~utr&.uj
r: J 1;J 5uffJ. zd J25b , tzsq LIJ,tJ.M. ZDP3)fL

·JJJ Avi>.'-hor1. 'flu ?Ja/11/i((} f5 +ftru:Pfened JJ1/i

tlfe.Pa;.. A-blf ~~ b1'.1~.)t oF flu 1\Afure.. bf' 4-he bndliio~
ot tor. h'f)eMe.t'\+ lrnd "-/he IIL~TUric.) aA._Q A- Q,_~uJf- of 'Vfl~-t'

Vlol t'ltt·on ~ of 'it, P It4v..l .4-l\d hFJ s .7r'and,'n6 i6 ..5t.t){. A71

lnJuncfiDY1 &1.A~f ~e 7A-sf JJ/oiA.Jtem:s hAVt-LVtt!lnttJtlb
ef:.rtLf5, Xerr v. h4rr~ tf j q s- h 3d '+12 {?i4. ht-. Jq&JLJ) lhuJ ite

VfOIA-.J/'bn hAS bee() C\'ndis \\ ull( it 6e_f!£1-e£Jiicl!tL #.e~tt..

Out\er V· Dow D J 0, '1 '1 h zd ILLLJ , LP '7 Lf { ~ -tk.Clt. lq q Z-)., 1ft_

Lfr¥1 ShtnJ A- lti+uff liu)l hDod DF Fu/ure IJ/11 JA..fron btr..au~..Jhe

5how,'l\b of 1f.t -n'J.,tt-S ?r/:.>1)() olfrL,"AJS ?res en+ Cond.wJr I'Jnd

t.JClL'·HoY\ S ::Cn LJ h•'Lh h f CJ,mHen he QJLp SAnt:bor'\td bl£ A-
f ·lffe (l fo ),AL "/ Ow\ d £lA.t 7£M -J- o{' A- 7 A ffeJlf) c/ cfh'dMI '{
~1\-Y\ctl'on.e_d &hovl't>t?J c:fhtd Wu. ~.dikons ~~LUt,J/se ~e~rrf
h1 i M M lt1 t rrf 'if.Vltlt M ~eM 5 M ifh \}• t\-e~l'\51\5 bt__,}.

oF Lorr~+.1on5 I JD3 {,'3d ~3rt' LR tJ4-/ES fit !!..J't.• Jqlj~) LPrl!::i>ner

Wh.o
t!.JJ o

I

had
ItJrJ t;

I

'

f

\of ti'et .be.e()
U:nt di..Jib11S lA

ttr¥l~~'oi.f.~uJle+en_ld"dh

AA-dJ-..t.sr-lJoiJu,d)J/1f6<t~:JJ(~

A~~ a.u.J.-) 6.. 'T(..p UUiihoPd of R.eC.urfence_ Dp Vlo}Af011.j

A6M11.J f llA r• ..:Diu1 Sot1 i.J 6r~a hr /11 ?r/JJ)iJ t./J<hn 1-1 WIJ-5 /n

l:tv: HAf> ilfe ~ LJ/JI/Am5 v~ hill£1/J.S/)/IJ 13 2 f. ~u PA 2d LJol,b~
(S. ·v. l>hlo 2-ooJ ) l n bt.j v)r-tu t:. of h{J Ctm/};i11'111Lrr-f, MR.

LA.ltiJfltm 5 l.s In { on#tJLJ.ol t!mrhcf tJi-Ji1lJ>rl2.cJ1oA~ ~Levs.

Wt.,csf_ -.:fob 1+ ~~ W Struf/n/Zt' /JoS-t/!1 IJfj .b~Aal/lbl' /o-12
11~~ibJe ~Jt i'rrHACffiJnSJ S-rr1/Ji, v. ZAL.h~f, zss- £3d

#f., 1 CJ5D/ 1-ftt t!.,t... 2L>ol) LJ...hclrrA-.S~M.tnt' ts 1'\A Ade ~~~ihl--e_
bt.f ~ P {JJr r ecftftJn.5 f-J1 v/(£Jr1 Nun -I''')

(5J

f3, Thf Case 7:02-cv-00087-M-BF

D~olculm2ernt13L79f

Flile~d

0c5./2/51/r1:2HZAPSahg,e~6D5of

H14ivPa~gbeID

3301
7He.

1/1 A.'n+t f+

~ dt CJcti'(\& W"'e_~h-ef 1-D brtm-r no'5 !Ynd

r,Jr'e.H MIYltu '( ~IIJJAnL~oY>~ I l.EJLlffs kK: u)hlha£r 11ie §u(+'err:n~

oP %~> 'fY\ov:f\& ?a..-+4 tP -flrp mo-/10() ~~ det1i~Ll i.Jill oo.-1--

or W.e.Jhh '-fi1 i .JuCfefli11b

..J..h e 1'\D (l- YY\D\/lnb?A-e.f'l.j II~~

:s t'llhi.'oi)

brAnkLf, JU eif:,. Ml~tluJI lA {utJmt>, 7'-Jtf (,zci~lJ;

f{o& ( 2-1\d L'-t. JCJ84J [(t, old~Ab b:\At d~r&:i5 ?o~-erl bLl Yd~n

DvtiLcov.la\C\G l2u..fu.IP16ht:d ~tn+e'S finAnl.\Al A-Y1cJ ftbf\illl\~A1i\JL

f!.Dnt.trns J j lJu~Al 1/. AvlA Ytt j iPLJ 2 !::suPP. 6/D1 5d1/b,lll,JU. 14i'lt)

{J,.. ol d/llb ifJfoJ ?n~oneJt'S ltP.ftiL5-f' /11 ~lffft/ A-nd W.d/CAI &;,e_

DU'f WP/61t£d ~fllfl'j :In~Vt.J.J.f ln )11 vif\6 (Y)ol\e.t.P h\f tu#]n&

~f.P).

v\ Tv'\ ~\~ ~ J ~-e 't"rt~'eo-t ~uJ-Ilfr,'nb of ih~
a in~r.P f1-n d hi'S 7o+i' n-HA\ 5u mfr/1) 6 -Av1d ~~ I(2 he_ ~~
6>il.f'l11lled 'it> 2.e.W\a;() ~1\ rJ,'r--b.al Soli+Mf JSotAi--;ot\ lhtilf!J

Confi11ued dePr/t/A*Ot'J t# hu IU&tn C8>1 c./t,cfcJ:nd JlihifJ'en 5Dt2)1

a11d \In~elltLfuaJ dlimuiY:rHiJI) ~#J Aave_ Dfjll-SfY-tUs unJtliuenaj..

1\ u t '-!~()~ ,i 'J () D~o t •' ~-t 'f 1h1cJ f!iAJ lVI S ~ b T Th'iAS 9r:~oo b~rd5

1\-c/\d O+hl-1ALS
/_,_f6ef .FoR.. A

4-nveafe.n 'f1-rul
nlf dis6rufl+led

~L'LP~(l'.,"'~MheirMM

MAKLS h11H An 1nv1.Jtnt 6u.aAd /.J_ho WAn-b

To f~bArAs~ 'Wt~o() Cl.uthvcltle.s. !hot §ub&ton+;~ 'JZts~~ ...fb

Hint Me. ioo &DrMJJus ~ 6JtJ4tne 16 l6/Jot2-e:; 7ht '(Suflert/1165 11

'f1u dtte-ndan+'3 tJill e~i>lrlcYJte ff fht tDurl6riJnb ~r ~

LJll/ LottJ/s-f pf f?Jrtt;/J6 h/NJ OfJ A VA,J Jh\d Tt<)t)ob hll\-l 'i6 ·A-

?tl~or> 5if5-ltn1 /.J)ulc.L 1\e_ ulon,t reMa\ll in Vtrf"uaJ t'solAtton

A-nd be_ e.t141+fe.d '-1-6 t..f.h e J-AY'o'f_ 1r;ull {f:,'f~ -lrt\d ~e.ntlfg~

k DIY\ '1 o-ht.eA ?rf~Dtlf.Ji ln Ylff l175ltkkon· uihrch fj 3umefhlnb

'hlllt fu.'f &n db l}nd tU.I obl.'6AfLd ~ ~ Bli K..ulin6

hi'M ~Ate LJ tfhou:f </Ht__ US-I oi':Lso>A-i-J'o1 1 A-s -fhl)/ do fD~

/l!UdlbirS if- ~ ~{.SD() rbH..tiA+I'ul 00 A-~\\\.} ~{_s., in-e

ha), l::u__Ct_n c}ll~S

td d Sh\p Am DUnb fliJ IVl DfL if1otJ bu5J~J?Ljj

A-S U.~LJ~L •

·me ~~j

:VL~..:r,,.rrr.FF 1's Ut.ru tf -,; Sl.\t.LEED

D11 IJ4JZ M~:I -r:s

(l..)

+ v "'e._ hl~IPlA5~ l~?.t-alflc.WlS(-J:Jlfu'i~,v(iuJAt'-\I'3t\:t':'.lCesG-.tfl:.~t\ctD-fi+Oa_1>2se,ch(~Jtst{\ukt/-)\cfLe~0_.OtWl\ierh~ VcOti3t.7.~ f~~..f-JJLa:'Q-:c7&A0t-l5'f\a.e2A\A.oS"l1{na-fec.c·.\f<\t5-i.l_·Jvvl--tn-ArT>qh!-t+vL)t\--J0m-\tt-~ouJ-'7Kbe'0CAu\:l\--t.u·:.vA:-0_t\M41fArl:----5L~t8t\::s,Pt'\.\-~Ii:~\~'J7fl\1o('.6Y:\eld't)\-1t\t\)\.fcPMb'l\,Atrd0~H~tAa~f\¥-ue-e\S1r-JB'h-1?-Wo-cf't\~.-F-~ i~A«+\\v-eto\IM\-o~ -iOQA-L."'1:~t1D.:-1?'CA'l.A\"h'UfoJ?-1chrr"\o-cJfA>1r\t"\i~~AfP\uhS\\'unAt'.(m+bo\-J{.ot\DL_A--iLteJr·-{IJ-_ohan~(J~Sv'~-t:ut)/,tt~ u$~e2J\il..~Y3\.~r)t_>..D~\"h7voJ}.tb\<Ltte<k9sf)Ruu\/t"~~ft1ufl>.~'u\A\~f\~i-~Ft-?tiq/(LJ.tk'ctl£ei\--V+l\\yfVeJPMlfrAb~lheCd~·AALiD.LL~(i-Ak~~"/r0'nr-.rSA'1De15~'fu\bnv--./5'\_7Y)uh2fl-tt:reuY'1lJc_\M5t,~e\tn.n}u-~-/J'a:i1Vt~kelu(,'~\42act+'~fb_._lhL\fsh~.l/a-~(~+t-"o~u:.jtlPJntn)d/fJ:zPh~;v:n#u+¥>.;~Vtll4a.'\J~:drt~~.g\lr'~ _'fbelk'tletf-~etV>lbn£'tLnA~._AA17IoE:e.ML'%PltP.l\t1_"lt.f<~ioc)0...l*;lr.'.f\\/'c?tnf~1h"-1lM~:1AAJbtY-£:~\-:4sTA\.fr>AAr~HL~-aJ·~.\A.lbrt~r?ne-,~l.lt~A-(dcPeNf}UStdn1(.1?J5a\lat~'fthlf~S\g\"I\toL~\V<so.eAihf>'c~ntt\;I,lf+·I.L\bnoAofAf~Dr~o~ol£~-&Utfft\'ftc+\~MA~o3SMt\~~':'btc)H~3~r+ct~a-UL.·W'M0le£s.Antt-~fh{l=-1v2;ee·+'~v.Ourifbt.:AcseAs5k~lr-A~L;dLl.1~S
A+ v. D9ttL~JhritDJ5lton'Pd?f~tC\fDu\at.lYot+el':(rllU-e.\\uJJ5LhD,+I 1/-8'Pit6tf1ltrlur£1\~l-.)wbe\~a'-{t(a-l,_t5,~{df'+oAui?b~~fPfd\te~taP.\vdLnf.\.d...~efZfJ.fhV')dil.f~~A-.U"W.ekht_3-~ntetAletfh,-/tdh,'f H~/tA1l:AJ-"3e.trJti.5)tJ-dJs<i[+i;.~A\~S[hrlf6D\'+/UtU.etoSo.onut7~~o~}tau{~->n.l.~S.m&~~%Z-1L~ruo\~ :b.dfvc1l\odeB.))l.t{m.;~thnd'~blPoAtiA-JttA1zJ~' )Y.nbTqA lL)blIuAf~ j.\Sl~~Jt'~"S!~ P\~.YA~.'.blJc'dedtt=t\v'.
ld ua I7(~'hftllr.r~ UlDo_nil'~ID<Gl1d;l.he)l1Zm-u?1_sDv.i~/Pd-'r/\urh1rn,Vri\i~'5!UQi..\~_,5ueDrPfUl'In)-f.tt,~l-t:tRD~tlaM5fr)fWt,h/I·Ii'fV.X~t\etvGh~IOJfl.rII~l,LYn'.IItMJt.1lJtod1.L~JlSe.-fv[dtilelto).Jh&ilt.v,J'>lfJ?M3JslbJa,,iAJ~I.'7utItt/6;f~rtn{U,-efCh.JilLi<Mj!d1:5JdJJ1JLwJL;i'hYJO/J-nl,/JeI1iPd)t/mJ.:r/fJJh»;£eAl1eDitoaolV-«L5tJf5u£6Lnfthzb.r-s1ete£Jrc/lSft1'nPJ1lijilb}')nAd,2hIteYc-ii1.)1/5ff/oi!c/,''fL,i1"Jr5iUuI:n1iS&8J.5liiLd"u{rY"LtY'i9JtIl7~J?rrLJ'u/rrI+J6eISneIAYJeAMYfllAc//3Al.-1Jl1MhSlAeJ1,2.lJlm-),1z'u~/DIt)ll1:5nlr-JtY:1Pl.!a/UZJ'h2fn.tnlhdfi/~St6lf1r&/toxl1lfnol(sFrJ_!iJiMi)£.n-?:ud//t.Jw1>o.PJ\t15/.tr1u-Y1nJr/rtu9tA1~oJf//"9PJstL~I,;)nJ/dk/iA.~;I/Am/t!:.J.uJ)-AiI5Jfzt>l,tlYJrSb/''oYun»dTJ~uJJ&itt1~JJ'd1l.JlwfJloiU;bJIqiJ)JIJ(9tI.JJJsJfN/i)~;t1t-}.JJ~f~/) {'1)

AACaAsedt7i:d02v-c.v6-0t0:0m87~-tMZ-BtF f!D%o1cum~jenatf3P7.9 1F/itl.e/-d/.,0,5J/225b/51'2"fJPJa~gte)A8Io!fA1i4to/P1aSg)e{IAD~;3I3d0i3n~

refenlforJ (){' f'YU11/tJJJf /11 ?t-t5JJYJ-t r 5 ;r\ 17cl;LAC\ ~A\.f ~\A\D() tdt

tl! Lli\tJ)(\~1\in-t\lX'tQ\)J bJ.Jr L/ fl, utA1l5 , g3LJ- h5uPP. ttl '77 ,)648-tl-1
Ll'J. Ae12 ./ qq 3){ UJ()dtmn/n/:, J?lALe. me ll1'1d R-ef~n#IP1bf~trlftJII'f

/U 1ti5bYleC5 i (l hx..)(dDw'() ~--t-"1\-h.t~) J Untl-tL/ It au6J.I/Al J

'715 F. 5uPP. 522., 54D {5. D. A.)~ 1'188)( ho!dlob ~a+~'fehiAtrk.

~va"dbU e itM+ '?r/5111 lfliJ'liA.Jj /11,/ h s~rl't'11 tTlll WDM St}U

lt tho~e J()d\uldua )5 uiho _, bi/ 1/,''Lfut- DfJ fM/r MIA~I kl1ll;J.l~

-£l3tJttet_rlU- Ke11J(cAp/~'l:et>:5bt.A-

J.t,verlf
Tr/Able

~d A-Dver~l t/ ft-M.t.fed blf
f!./6hi1J Amendnun--1/s:suL :J

PJM.emrnf-
j ltiiYUiru

0{' lJl{fJGLJ nfl lfr 811ulf, 717 ~ su PA ss'-11'£/eS'£D.))/!_ J/jgq)

L~6\dil)b ~+ l'fJJYJof~.s J.tilr.h
'Plif-ted. ltJ A- .Stfe'Ak A-R_e_A M

nuA_I,Jtk11JsJfJA;thL,:JJJlIiJndr;/?J-lofhfJI~1m'1.5At~ iMJt1~ ~tvt!.

t~!'M8d1'Yhun5luh+l/t.veJ_l4_6Sr,.b/r2e66sA-k/oAnJ,i'1)4;t'tel!l-AUJ,J9Jq,SJ)/M~tooduryt~'d}V,:~bloclM.fah1L
E:/6hllt 'ttrrunci!YUAI' JJA-s 1//ulAf~d bY 01/ceme/JI//J V-he
Exffemeitf l5bhl'ftll6 &,y})hl1:5 11-f' tMt 7ihlA-rJ ~ MJmi!JJt~e­ SeGr-e6tY·Hon unlr 1/J t!a~;f};;y;!J?- K 11 ~ a.buAdYM-112-hJJI/

ntJ.J," ::Ill ' k t..iP.J/

?bt_rfA"ShDi'lAL-Mll~M-eA-56

t
J

'

_~~j

'?erson 5 /}Uf)ofo/

A- /))/

1-J,W! B~ b/JL rtlrserm>ll# df5DrJ,~
of'r/lafur,!bAr IBIMY/!,hi,mA~P/uLJ-ff:o.-i:tJ--}J.p?M,',dj dooel

~ron/L- /JeP,~ss,oiJ ,
JA.L Lfhp SJI-u /) !Yttnf

a./.f'ttn't ~u~li./.A-w/t'ln/1l

m~t~l.f---#t.Sinl1&A

£//16heN
11-tJ

ltsih~I1Wt- //J A ?llflP LJi~ h'HIP Alt. 'fD brbJMe" )

+Al-Dvveur.Y~
( 1\J. u. f21A-

~iA~t-;co.IAf/St.ul)otJ~f_jf(sJVoLlfJIlJ,tr~olIrIJ'f.At!5l/L/YnJR-.evehott1cxJf-rJ5lr/lIJIlS'_iUj/A4~h+h1'~l/SLnlan!i~i'rlAlhu£Jz!ndudd'WM1eJ3lir:¥eJ5AauJ/(:-11lsh3.trsi5J:tb/IweB-n5iAlf1lidI'iI'l

~Ill (J NudJ?dh 11. Fia,,;,5, s-~L/ f.zd13 tJS:J3¥rtt{'-&.

I '1
tilrJ

Hl .ngeJ~Y(~DU+e

a •lh <flu..u .
:TrDb twbh

f

.S)J /J, J-hq.

II

'fiAcemm .fI , 11b f.'. 3d

ll I

clt.kLM-hd
D &'7, JM"ff[$H.

e.Jt. 19q'i'JI 'iiMu da 115 tJf l5tJI Ql-bn .4.. 'i1er5bliAt 1'11 'k,-s Mt.

&~Ar-rA/hft1a1i1tlhe"~Cd'e a'2J
{.._fS 7 I!:. -It,

/!.on Cuied-lo Jl/u/111? HrH--Yhw"Mun.fJ J t4uJd1i!1J v.

3 3
~t(·:t:., .

ftZ:eELeJu[ff)JP/,/).[){ztKdo.f)t.lf3jn'!>ltkrI,M1f·ohDZi1l('1lAJ.lI.Y1JI~/J.I'.e~A~WlEl/r.lZlaL,Jto'-zjNJL9.IS1Ht'sv3tedmrl}ldltrn2"d/

(_g)

:Madt f. Case 7:02W-ctvi-/010/0r87I-?MD-BhF~rD/5ocu,meqn/tJ3'7l9 Fuiledt0J5Z/2LJ5/312,JUPaJge69(o3f ~14~'PRa.gIe'IlD1o3)304
( blol(.ll1(; BL eJA~i); fiCA HJ>r1 MI>1Mfan..ff~'5 1 bJI)rSerJ,/Jb llv/nb
LDnd;-1/on))} JJavr'j V. bt>olld ,.3.2b !::3d :!Ji.Jb~ 353ti/Jitl,
ftiLZ-11d e_,'f. Zoo3J ( Dh~ffuc.Jit;n of6rt'~~A/Jl.1!5 )j f?uteJ<G'I V. e~eA h~_fenllon &rr.fRJL I 33 9 h5uf'IA z_d IJ'f5,/159~5SlD·J<.An 2bP1')
{_ fh:tr rA5 Ynl n..f, fhrfPo-15 ' ?/Me rnp I'J..J- //J drtr~6Jtflt)}l')' ,Y.Atkri'n6 Ond d/<s h":J~-embJ1116 IJf 1?4-P-eJL5 , &n~31Lhl:t>Y1 d-!e.hA-INb·h-rt'AJs)J
Rnd r; ,,'Gu (£ lJ, YJ1 cl'IRtm/IJ t, J sq'J 5uf~ Zd Z29I 231,1./1 /J.i)J).I(2t:JIJ5)
I rlrs9Jlna.JJ Y (}J,aJt_l..:d~ Pt> llf>td 1"6 6tievAnce ),

v,·oli4+1

Tit e
ml.

:lD:Ji.An.~n/~(;o.n,

ko
t_5

m'i?1t1bJIn_JfA'1 ~f'f1.L.JBIL//~cfo1

!md 7I~oJAliPn /J1A L/ /f' flui/ do nvf 14'-tse:J

A duf ?roCe~j f'Ssue_. Pftzl-h4rr/5 V. WDJr/', 7PZ-f.zd g3t,J83lf

{ 9-llt ~~. 118'3) I fir F1n::;~ ,17 £LftJj,"Aftt>'{) flu br,iJ6,/J6 )/~fon

1»1 f?w, ...RN.VICI~S/11~ {)t/Jw foo5.ffitJ/tona/ j(,'blrf:s L'LU.. Un)/i,J;c)~/./8

l+te (_ 'htt

TiA-n~kt) ~-~Cnn t;-f.Jfu~IYJ

£JL1a~1l'At,i!l'lr5eJ_I/_~Wr9Yrf/t5rokn,~clAflr7/~A"5l/.5JneiDr:Jff~ovldI~IILM~N)

''WR.oitAv-~J()A/Js'fl~-baJuf JJ?+dbiftf/

'' hJJt
t>IJuA

?rcr.£s1c>'?fir.nVol_+J.,f-Scfl.urA.l-/nmd u~J:'rYfPJ rupnkkcttJl ot/MJit/h11lt.

ltazArdou5 /il//nb -AMd AlorKJ/>6 U>nd1../toYl5 rind mwf-R..,/;11/r1
Wt?M SubJeLil11t ftum ~· ~f l.lnJ?t'L'e5J5a.JJ/t ULu PI" IJ&e_l ~e;t ,;. Br'en()AIJ /:J/1 LJ,j. ~zs; glJ-J{(J?9lfJ} fle-JJ/n6 11.

lfJ~J(,/Jnplf J 509 IJ,::>.d~ ::33LJtJ9..:D~ 7hf 11i>tllhiY'ifl'lf lntllflianu 0

to + .~1J11dtJAr/ /.s

'indl/f'ere//Ce.

1 '

1J1h4otA"f.ittLJ"XI~f_tjt:a!Jf

d/f?Jr/:/S~IJ6YJ19cn>d!{/f;~£/A£l5S

di~PJa'lt:d 1'del/i::LrAfe..
,{{f'l ~J'IfAil/nt.

tfc ZlaSPrJRh/1/ 11 3r> fuPtJI15t 7iiJJA-t1~P:e-~ Wnttr 1/.

TJ(tf)()OIJ ~SJIIJ.~. A'ft2-ff / t'31-'I?Li?9'1J; btJKA v: &hbiH;
tgLJa !:zd 62/t,~Ps-1 L?i+t/~:, 19!'?) {_ fl?e !!ons-lt-hrllt)n /J JlitJJAfed

"~.JJ-t Pr-e d._p/Q.-Y'Id1J11f'J Muw d drM6eL-4/l Uhtre IKe lllr~4f 1.5

~ o Sub,_~+An+IA-1 IU )n ftrred / l1nd t.ftf

d~t-~1n/Ad::oS/nJi~e...Jft1foAf-,) r/1h6e/~rAiLh'nroAiLA'Jf!~Adbit6J!JicJUYJAdl1L1-t

Uit-tKe.t

fJ'lMtr ..J-h4-lM

)

fALUJtJt?i.JJJJ e

.Jitf5

JJh1~h

Ma 'I

AIIJI'~ r~~'~ vtnh_d

:C~ ?rokc~· Vt lli\La.Sure.S ?rPY"L.. .::L1 ad~-&uah JAl

1/rAt.,ftre_ 1 tJ( f'nvt-5,_ Mf?u'AJ!J atP J;b/,'Jd ~ -bJtt /2.;,-fhRL

v. a etiDt1 '
LhDJdlJJt

~n Sel)
J't>JuJ1t_.ftDn

lf!tlAJ~rK*e.P. PI CfiJP'i-rrl:ll3hddIJ.e?I5jffllltl

b'LJ) C!"tJ,'Jf,
dtftrdatrfj

1~1&) ~:1+

Lom qla!n-t- ALt/ot1 5)

('1)

Pr-,'C·soa~snen7:0~k2---c~rv-~n0+0e0e8m7-&M-YBllF)lle\ uD~ otcYumLet Sn-tk3n7L9 tesFuil~e,+dJo0-5dr/2'Yl5}/1nI2~Yh/~oPa"g~e&10lto~fn1li4Jl~Pv.agn4e1IaD~u3-3ls05/

tf._G_u \red "ib Jl,r1 f-tt f Ltfl A-ndSii~H, AlA-lKEJt v. locK. hM-Ij
715 P.zd 1:3 7g; L3t.3 ( g.P.. ~k./ 'IJ3)J Jfrrr hr v. floP~ 1£41.8
r.w h )uff,JJ21LffIJ9bJ'lJt;'t'(-15%-/~hJ't,L,'t{,j)1, 1JJ~.]J).J2.tLn:>toJ'o7)tl v. 5chuthJt, 1 tJtt,

A
tDr1clitlnn'5
9Jaftrlltl'/5

?LrJ:/1Jo~reAA145Lf12l1cD~,'n5A
Ma.ud !r0n1

6P-rtJev?rrtrtl.si.nUtJJn.tut!'fliCKB.Jlor'vcte'h.OfiUJl/1.J~.ufI~fY-MJh·t~r>t-t-.t'rhrril3-l,'3·s~q(.£)f,A?Lx

'

)

10 99
M~?eJn'

,hJI3!noLdrlJ!.C1,LA/J'J.-LIt/tJ9,c~JIiPri&Jdf~7rz~a-(l;f1ll1/i£)'~M',(c'',eh.!c.JtLa!JJLlbJioth/-r)1{Vti'AsAel1iKroeJWIk1Yn11tr.hdneYrt.JnsAtu)/rl;vffi.A+At!m·/Lt'ci'.Aet.r.:;

lt!dJ IJuf TniJp-f- t. /Juu _jtJ"me
:JA_A-lft_c/ f2, fPahJJ'/) I!JJA-PMf!tl

RVt. -?b,a'JC~Ktdf~?JSA/i1t1iW£!/I::5M

had
ZZ;

bP~Al
26 -;t7

{fDIJr-1~£~~1R4,-mk/tJJY?lfef')r1{f

fkha 5 t' 1-rPYVr
bP db Pl/1714£t/

~\C?.rf!lsrmd

)dJldik11tJ/JA-fnmdt1J/.tAiflttuJ.MlJ.Mt.-5&~

J!J(, h'3d d.!D7~7'1(3rd /!,~. z.t,d)!A t.lf~e_ /s ntrfm/)of, t!-ve/1/r

'h..e_ -/tffe)lal1+ (fr!111aJJ t/ ,/)JurYfj tzsPJved ,Jo /o116 IJJ ~~ Anilbnf
en(\ tin ut s 16 Sut:Pv, J Pn1e )u:rerVJ i/1 A -f A ~1/JJI(.A-bl'f ~"dtrl5¥.Jn
lU{1,1no5tunfitidLt!Jt6~rnr1dnfunL~fdIIdtIfoJhtu_JnJd1n1llr~+1 n-.tPu.tJLlt')erJ'J2e~-~uK/"rl1~1'MJ/ ufJr/f,i~I/JvV&~unNuliJtc$'-i41r1ot»ul1'hou~tL}A7ib~~ t£''.zsd.~ Sll ~
SLft/-</s!t-14!1~~ J9f:L){n,Yh"l16 Lou/tf/J'JaYKilt m £JI/dLnL'~ n1rf
Gvt111Ahle -tD li>l' :Jile'l/ lhd Jurf_:j Mt:~dl hnd!Ab.3 AlA'I .IJ~
itJCDt1du5iJJL 1 -t.bPiP~/A-111' // ~ IJ 11 MJU/ia/ Jltrd/cf)
Yr f 5t:J»hf 5 h~t:vl' b"lt:t1 brrfnfl'd c:MJunc.ft/;125 h V 0,~

/_flu.}, f) /r; II- i/hl-ttfl/ t>/' &.5t.S _fuc.h J9-j Mf·al>hr1SiJn'.1

"PtJJeee+,K~

D+r/fJte~-eJ i/.
v. AllX , lftl.3 (

A.J;x, 9tJs
,zd 916f%14

h2LIIIJJ5(S·fl.t.,~,;f9/)J'
&'L t991) J 1-htJI/KJ i/. i'Pf'JI!JtJ,.).

r: '75t.J zd d8J ( g-11 Nt. /9%5)} Jint.5-~J '1/. Btt6t'-' JIA fsum :.1

Z.d 10 lJ~ 'J/16- zr- I u.J. D. /,.}15. '21:JpJlJ ¥/Jtbov~h Y. /lD/IUJ~ 7~

f. 5uf'/. 3111' [ i), V.t. Jtffp) Ltf,.O..ulod6 AttdtcA/ 7iht/muTJ

(ib)

•

0

'b. ·me: Case 7:02-cv-00087-M-BF

Document 379 Filed 05/25/12
l?eLIEF S{}l/£1/T

IPAaJgXe.1L1Lof~14E2PVag£eID73ii3E06

YLl BL::r.. ~~ .:IJ\J le::'EE~T

*' '?ubJ/c~

:.Ir'r·fx.e,!L~+s-tt,;

~h-e~c!aJuE~t

1

It, t'
l+

1'_6s R*-JAt1AJrAf~ .tf~/?t~i"1c{.hfetJ_/?1u1_bJ\tir~t'~t.niIlIr,v~f

RJ( p,,·~ll lJf!liuA-1:5 ft1 I)he 'f e LAW J e!:JPeciA-11'1 tfht to11~t.M..

v. h 'Ph eJP5- Ko ?Ee AliXD,.J, 51./5 3dIA85J lu'Jo ( ~fl..&_'e. ZDD'i?)J

Du-tA() llr An1Aif4 1 {p LJ:1 h 5ut/. S/o, 5'J 11i). !ti.AA. J f!JI,) l''R£lPr.tt-

f:ot_ ll'P

+tie
W,,

/a.,.J , JJIJ7ls

?LMoritrc~uLlft,v£t.;lt'l~hoJt/StJl{f:~[;f'Ct/nA1}~j

t/a)?on~~blr.. ~ .u-.e~n~~~ilon ls /n lf.5elf~IYia#-tr li'-H.~

J; Mhl/'6lh'ece5~-J'-

l?/tu;h2Jf1L :.5:L:~Lf'Nf/.ftrJ:c!J+1!''j ./

lkiJti'IAJ It
2 5 q "1 {E.,j).

bl4dltncl &unJ'I{fa.stcu-1/;r:J
/H,L:H, J975J{5t'Aftnb

''' ItJli.elr~LeoE.ns.J-1r.tIJ+u),+:Dr1 ls ihl' tiJtA'Aiol~ eKPI'"e5~{()() dJ~e Puhue-

fDiru-rX

7H-2- ?LtriALrzW ..5J-huJIJ NI>IB£ /(g~uirecl To ?o~T ,5-e.Cufi-rtf

Ll ~uatli( A Nf16~ttrl WhtJ tJbfo/11~ /11~trll11 J/JJunch<v~ZJ,~f
ni~ A~ud +a '?tJ:!)+J.ccur/ff. fuJt 6S"/c}; {l_d,/.t!.,'~?. llbkl~~
f P!altJYI!P iJ An 1110{6-tn-J- Pr!.Joner 11-nd Is Ut>Ab}e " R>5-r .Stt:ull/''1. '1-ft L.en.vL.f hiJ-5 d'ti!di_i!J .. dtSL'f~·h'o'f\ fD tdf..A.!~~

l'\-n
CJg

IMPo Vefl.5hecl (.3d ¥7, bb

lll#s6rAdn&f'~.ffL1J9M911'f6] :(5!YHt/-JA6+kInt6u

i7HJ.A. IElb/!lp~.f/11d. R6lul't~2tJhdk/r

hove_ drJC'feffDl1 lr; tJo /J/1' II,"' bLJnd /'t:-&u /r~MltJ-i /Jir,foln~d IN

Rul-t lo 5 {c) DP c.JJ. e_ tf_dVLaJ ~Jr.J f)P t2J11,'I Y;PLtduJU ,'t ''n -L

_j,s-s-r: c1DVA\e-_)_A?nca.e~_

l)f
itt

~Y---eAt-rJGl-rGH~J'Ji-.#J,.pl£51tU\JPun-ct'+6JhD5()

OJ/er-JJJ.elm/116/P 1~ /Avo/<~
').. fYJD!fon b;. 1/. t:J46Je'?71+cher

,'n du jfy,'t5 ~Inc

3d 111/;//?6 it.~~~. J99S)._ :Z11 V/i2:LI

£{' ,fAe ler/pu5 /.YI.u:ilcA/ tmd r?h'IJ/co/ lMn6eL bMfTbn.JH. 1-hr

'DIul+lul+1tt?i'e.J_&Wuif:.nL&LYtnfJvpzf'J?hJo~unl6d Ab:Pt-&,mcu.~.f;ifl;l,/~f(,Jftl' fuue:rhd lJt#.

Lu)

Case 7:02-cv-00087-M-BF Document 379 Filed 05/25/12 Page 12 of 14 PageID 3307

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
·!il. IUoii'D() ~~ MPDI~DpUw,~
·t i)tdarA.Pa:.t'"\ ;n SuPPt:orf of' At>Po,'ntMtil-f
ot' Cout1~d ~ t::IJ)EP.. to ~o1..J l!auv 4Vr lf.ulh-A-r'f
i?esfrAt!J,;,L ~)(_
v ?/c ~ "\)eL\5nurAP\P-~oDrt\f'oJf!M1tf.MMJcbr,A-Anrd'fU~N~lfi'AOiifJ~lc,fhft1Ur A-vld re li'M 4-£'I illJ urt.t'bA
~ \1.\E- llfdku .:::,~-re..:) .bi-~t'~\'c.r Loutt--r ft;.<_ ·--rHe:. l\lof2__THet:N. J)i~T'n'c._ T DF Tei.A~ ~AU i\ S Vt \J~lD~

r&!Vt '.

·go DER I C... K KE.I. IH TbHl\LSDJJ. ·t!= I 4.5 59.5 ~
?A:C..K l llnl-r
f<d. Z ifoo tJ_A\\ ACe. .YACK.
tJAt!ASiJIIJJ Tx 7?jt;;J

.K£.!

T"E... +\bi\.\DRABLE U:s. ·u:r.~TRic_T ~k.. BARBA~A rtf.b, L Lf,JtJ 1 ?r~~id.·~ lo

RoDUiL!J< Ket-1-h :Ibhr,>j[)~

Plol11ti fF'

v5 ·

fA u:;e. I&, lh) A-c/:0()

b~fl-'f ~11JD,J
K IU'10Jt.d WATtte:M

AlurHJ3E:e:
1.'/)2 -t.rJ./I)~'J-M

M(\danr..s - - - - - -

~tt r:.lc.~f..d: Ll) -~~b.'onol MotH>(\ f& ~f.. .Di5k,'LI lnuttT
Lt J tv r'f ·w '&e ·~e.ti.tfJ\te:..d To ·n.~ e-
7,1\int;fr At- f\bi)Re..~ A~o\l€
LJ;~ 'h1e or Do~ ~--rAM? he 'i)Q.tj
Faul w:·-fh ifl; ~ Lou e~-r .'!

rtD M .'

;?oJ)£J?/(!_j( Kt??J;, dldln~LJN :if ILf 5595 9
?AC. K i lJ nI T , .
difOO 'LJALLALE ·--:vN:.K 'Rd.
NAVASoTA I Tx. w118~2?

Case 7:02-cv-00087-M-BF Document 379 Filed 05/25/12 Page 13 of 14 PageID 3308

;\~;}.. . -_1·.'f"r. ·

'i :,~.

~.,,. l~

Uni Te:.t STA~ DISilcUT t.DurT- J\Jni(.T]-\eR..tJ /

.DnTnc..7

__,--l ,
D·

rtl;:. JiJl.,\ 6A~Tn1,L t L ER"n brT"e: LbLH~- T

l

IIDD f'DfVI~p,c_e_ 5~"uT, 1\,oN 1'+5d.

f/J

JJA t\ A") I 1-t:~~ 7:J d. y. ~ -111 IE qq 7D

I

LL C,A L 1 '-\>~.

\j(
"·)'

M{\, I f\..1._ L. . •

\~?. -.c

% _,.

\:~v;,,-

--······--~~-.-·•· --.-:~-~--\~"/-":•':.-•.;s.·-9-~Yd'_ZJ'.2,;lp).~'"-\~"J\"'

L e__b AL

vV\m J J

lllllfiHilim.·

GJf

9502 5101 6132 2132 5777 70

,:.._

~----~---

Case 7:02-cv-00087-M-BF Document 379 Filed 05/25/12 Page 14 of 14 PageID 3309

-~
, ,~"'- '--..c.. '-

~ FedEx Ship Manager- Print Your Label(s)

https://www.fedex.com/shippinglshipAction.handle?method;;,doContimie

"!" '-.::::r'-.
,~,

,.

,.

~~~..w~ mt -1ii1iiiiilllllllmlllllllllllllll !F : (214)753-2633

OriginiD: RBDA

~. -

Ship Date: 23MAY12 AcfNgt1.0 LB' CAD: 4559525/INET3250

SHIP TO: (817) 767.1992

BILL SENDER

Ref#

"WF* DEPUTY CLERK

Invoice#

U.S. District Court Wichita Falls

PO# Dept#

1000 LAMAR, RM 203

~

WICHITA FALLS, TX 76301

[;ill 7984 3145 2956

THU- 24 MAY AA PRIORITY OVERNIGHT

,~,

en

"'-m~''-
""=-'''', --c-~co, ''--

Ctl
:c:.l . :C:tl
c3-
c::
3
c:: ~

C/)

'-.i$'-.
'-co'-

~

'"'-8"'-

76301

AD SPSA

lJ(.us
DFW

~ RECEIVED
r=:::-1
~- '-JLLJ
. CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF TEXAS

RT743 1 B 2956 05.24
FZ

 
 TJJ mE LltJITE..D Case 7:02-cv-00087-M-BF Document 380 Filed 05/523/U12TP~agielr1soTf 4R1lLPTagelIDnu33~1T0
FDR 11-lE. 1\.loRIAE.fiJ uiSTRUI DF Taf\..5
_J)ALLAS .DIVISIDAi

KDDeRI.CK K£ IT f"jj~~~;;;crr-rCOURTmm:r:----,
FILED'OFTBXAS /lh.L Ac_ TiD A1 JJluMhE.R

MAY 2 3 2012

7. 'f):J.. -tLI- DS7-m

/3/lrEf TN SuPrbil D~ PLA:l!JTiFr..s Mo-r.rotJ FDt< A
Te:M?!JRI'tll/ fESTRAIAJI/IJb !JI?lJe:R AIJJ) he.LJ'M,'tJ/tftf ::bJ.JuNCT..uvJ
bM~ AlDLJJ Kt£JbBJGJ:l!_t J(gx.rJ.I JDUJlJ5bJJ1 IJlA-inMP 'Jp ~
And MollE~ '/f,/s LJ/r;/lJtJRIJ.ble f..o.uef ~ &ieru~f- E!.MU6enc'l Jur.:sJitlton
iAJ 'l/J,,'j E~ '14nd JAl fhi5 f.A5e.. and iS5ue A Ttm~rtH-JJ R~s-hA-inhl~
IJIUitr '11nd A '?teJ~iYJ/iJA-£'1 :I~u"uk1n1 JIJ Dt2dof 7D ·?ro/eL.-1 7iJE'
t,·Fe.. And SwA--'1 {)( th'M &M fur#Je:X MlM Al'\h DAni£X~ -=L1l 5uffd'}
DF ..St.-td Mo-rloJJ fAr ?JA-tllW ~hoW.S THE £u owii\.LL.:

I~

Ti:e. ?fa/()-H({ A BIALK furuo5e;C.uA\ ·7r-;~\'1E.R ltJ Lus7ba~ f

Jhp TexA-s. JJI:YAr-rMe:NT oP t.riml11ol Jasilte.. brPu6h f 'ihi.s SJJ,'/--' antJer
J.fZ. IJ. ~. /1. J'lt3 rv~ 11/oJil.J/on ol h/5 X:bh/5 iJndtr cfht» £i6hi11 AtJLl
t=;;u.f4--t.etl1-h ~endMenh 1-o ~t llui}ul StAle:') LbY1~-ri ruiic() A-nd

.s E!&uAJ?ro+ec.tit>lll PJAJL5f DAl ~?R~_i J?.Zt>lJZ.., fPI< e./thfeen tnoi1.Jh3
r/{)/V1 eP.Ytnllber ZDoo WJ Ati~'l db02 ~ Mfl ~htJj/)n J.Jt4:S .SuB~"fC~

To It 5 Lf5TEUU !JF 6ttn6-RunJ S ~a/ SLAueelf of tfAp_ S611~.5 \1. AUfeJ

llflit :t\.l IowA fAfK • 'TNA~. b~t()b mtmiu6 IJJu..ffne/'1 btJu6h.f A»d

5D} d l+iM A-.s f1 /}JrA T~I J KAPt:d -A:ttd de&Adu:l h.'M oi\J A Vir~u A-ll 1/

d!)~J ~ b AS)_j 1 And ~<e.otene.d

h 1 111-1

tJi.Jh dtah

t'f he re.st'Sfu:l.

(I)

Caislee7~:0r2~-cdv.-a0n00-8r7-MV-tB?F/.5oDt1ocuomr.ernJtt3:8/0~15FiAledf05t+/2l3l/r1u2 l

Page 2 of 41 PageID 3311
IAi.PrLWell AvJart' tfh3

+ <Y ,,.bht' I bu r(_ 1-ust.d Yo tJJruiutf 121nIf IYJ l2a 111/16 ~ I ,'1) ve.str'h~it/0(1

Df hf5 ~Yl{fJ\ain}..s A-nd RP~5-e_d h,·s Vlea~% he_ h1>~tJ itJ SIHC-

KeePint ~ ThPV madP LlPa( hI{ Word'\ ~cJ d-etd5 '-11-.af-' Yl.t-'f f«,J< SA&~\\L ?\t-a~u:le. if\ hi~ Vc'l:KMizA-\tD()w lhtV /2r_~LJiuhtl
in t>i~-tt.d ·iftaf btc_auje_ he t~ i3J~t~< .~ mr.C10hn5Dt1 ~mutcl
h'( Able -15 Hbhf off J,,·~ a +~ACJ(e.f.5 121. £.1!£ accePI h/5
5~al Vt"t:A1Mi2A~on t lhr-'1 Oll..::JJ:J ePea~t.cll'l ~prt'~5ed
Lon+f-rnVt fo" AlaJ-~ A&~rt:.~ivE l:.rrf Mf() _, ttnd
/.r to Mtuie ~~ ul/,t:.i~ tfhaf bJA~ +hP1'R- ?eACf:ce {JiJeJ)
Reftise cf-tJ ?rbltLf :Such /nrna#s from S~al AS'YJuJf, A+ ltd un'-P.I Such infYlOh5 !Alert_ .5Avff6ciV .beaft-11 b1 '16u+f-td ~ 7itt'l
aI so re iferA feci {r,o..f h f 1?1 tl s-J- jf Fi6h ..f p ( Ga ·~ litetf a I 5o }hreaht1ed hlm !Allin Severe_ ~efLlllll-lioYJ kL ~Jrnt.
ff,e_;'r M,.5J{fJruiucf And ft;, .Jee.Kt'nt l?eLlr~.rn AdtYJ/1"1'.6lfiJ•tJVEIV

a r1Cl 'fl.,,otJ6h t/l,t £nutR-1:5.
()rJ ;,J;;R ma-kotJ ctmd ?Jej ;e!', c/1, e ~0-JdoJJ.f_j fo1ttJLJ A P_n.::ffom A-nd ?rAcl-ite p( den 1/,/16 JA(f_ Kee~o6 W llulneriJhlt:.-
'BlACK. \ ()M A~S ~ve t1 il7 f?A:Jt-5 JJ{' Ph VlPJA.5 11-eec/, JRbJdanf:j/
aJ/ O( ltihPrU ~ J)tJ ,/J/);rma/1/J/J LJ/Jd heJlef'/ Afp tJh/h, ~f- ~ Jt.5.J /,'xel 'I >15 brdtJ~ c.S'AQK/!L~/Jt fo f31Acx ,!JmA-k5 'ihoiJ c./tJPMer
$1m///rir/J I( .1/fttofkd I/JAlo1~.5 , ·7], f!. 'I /m frPnrIt/~1CI.uud 1#.5 Rt4te /11_ de11 f!J/16 h/()! .SAfe J(eef?iJt ~ I11 add/lhlli IJAi /1J/;£A1A.Jrpl1

-And beJ/e/, 'llu 1/ lz)l/otJ A /lus/;;/tl {}nc/ 11cAtlrd!--d'denf:./J6

Its SAfu<eL:/1'11 (:,

/JlpAJ- A66rz.5.5/viF / 6/fJY /11£/J ,/] /Jud of~Dkdrcn..

D.e k11dal) { bt:J~ IfJOh~rJ / e.:xeLu k,;e- .h/auioL tJf J.l,g-
te;tA-5 dJIJ:I)arh.J.etll of l!£A1,1J~tL:lu.stiu_ / !Ai~ AJare.. tDP {he_
I'Uis&nducf t>P che lxflndonh af ll!l!ed ~ Ylnd lliL ,/)JurY/rnd dA-nbe~ 16 tJh/dJ ¥lu V Jlul:J.Tafe.d m~. JO)u?.5tJ/J /hufli#Jtd
ZJ,ee -Jo 'hJJ(e '-flmeltf~d ade£2Ltale f'emed/t9-l n1..UJ_fufe:S. MR.
Sohr1s Pt1 S1Ju61J..f ?-vunAr1er1f'cA:nd ?r,J/m//Jait/ lidiJ11,:ive
&nd dAmA6t:5 -PoL 'llif Phti~JCA! JnJuRI£:5, fdtrue/A Y./nk
v £nlo+J'D()A--/ ?aiiJ1 ,/7 fenji de6r1Jd1Jiibn rAnd-1/umJI/i<JllbJJ i And IM#n6
'? j c.nrc. Traut'lA ll f!auJed Bv &fJJdo11h A-£11 '-And MJml5s.~~ll.5..

1h,·_s fDu L.f hiJd Jur/Jdt:/rt;n IJVtr 7ft1/dr/,1 !Utlr'n15

(z.)

C<asPe u7:r052-ucva-0n0f087e-MM-B:FlfDtocLuJm,~e~ntt.380/3F9ile/d105A/2-3n/d12?uPra5geu3aonf f4t1foPa~ge~IDU3.3j1~2t*

/3 J..} 3 (a) f :3~ ltnd (~) l 1./). Arfa lvea~tll:lJJLf ttn1ft1~1Jh611Je.

AtLu .(t{}fe~ &h:lu5+:nt 11---tl A;A-;/~b/e_ ~emed:~s i2Al *Ptt'J p5;

:loo:J. ;& rfndhiJ 1-' 6tne i/ :WhtJSoAi tJvft#eLi t.ihe Acw 1/11 A~

11 du f

'16

hts

d e m t a no~

c.And

IAie11fA

H()t/

11 '

tnt...:Mhll:Dn IJA-j

IYMsbcl from t/-t;,ar1 18 mo11#1 s

a'-Athilrru-Jhect!rtHdl.5V1JAet~ebd(J/J11e!:t:JiIkJd{i?Kreoel?tc,/l1r6oYJModruee_/,6

lJ-e,/16 ~all 'I vf5.5tu~Jiid hundruis dJ #/HID AlherLh!-

'+h4d Juf'!eJvLtd l)o ~lAM J1#ACJ(5 <ilrJd t/J Ahdtr .J-6 #eve/J.f

furflwt /rre__?nfiJhle tll_iuRI/. thl lJ.p bmh!Jt t9, ZIJP.3, HE-

lAl~ ~ Zl-tLl.Jed !'ron7 ~I':JJ)TJ /n '-lv mardoIV£ I Juf!e.JJ v, ~/1¥JJ

4-h d ori dePiimbPL gj dPf)¢ tftu. JH>((t1dan..J6 aA6u~d ~r~

\fn e lJ.5. /1-u,e,tj/vP~15 , lvL 'fhp kiM /JiR6u'f lind VhL-

;TJ)A-:Il..Ji!/ Unleedtd tfhaf rJJ£.:Mhi1Sm' J alfJPAlJ M lll.1YJLhe_
Ke..lief -11-nd hD {JJJ4/IYIS llblltiJ5I ti;/l,ckJt~_] /17 ~:r PlteJA-1

tAPt~rS~5 had l:Jeer1 Zt11clu.Ld mPPI' ~ letlP111'1 hl:s&iii:J
A61Jf1J5f' % &0Jdonif.!J ,/) t/J,e,/ ,/1d,uLiuall!iti19CtVfRJ &~.

JL,

Ll '-11. t ;:;J1 cl' .do()'1 m J'efJ#mbeJL 1 t/1.- mf<. :foj,IJ.5oAJ 1Allt5 f(p_.fttlu1td biJCJl ,!J~ 'tfJeTLll.sk/P 1/;,laJ/116 AIJllnit:tJ B~,e­ Di>IAln rJ-nd mPnl/ IDruhz/tLJJti IJlJ ~!Jlh.eL J/, 2alf .flu_ AcLLJ UJ()fAcfed Vl,e_ lft.Sen~ &au#v§ .lJJie&-h£ of fie .&x~
~PA£1/n~JJ.f HJ tt,~n~'rlal -.:ru~t:Le K~-\-:n~ tf-.11+ L-ruc:r)
fi1J<p Y #u'A I IJM e_ ,/> ?IAc:/IJt <J-h'M. Zewu.s~J p(Jtfhp tuJil.SLlal
~'Rf!ulli..5~UJ {f,af Would ilL/him lrfcAn !JiWAordJ'JAt/1'1' ~
hibh /?,'sK. Gtf 6iJ.rJ6 Y/oltrJCL-ftnrl ~,4-Pe_" Jh1d .fevtre ZIA-kt~lfM
~d cbe_/)fh cfnreai'5 frtJm (TDe.r) ?r/JJ)AJ ~rt~"AJ_j. TtJ f11lJAJft-rin1 Vlfl~hr '$r~td Li/t/16~/a,., ?lAced h,fl1 t/JioJ~XLefln6
A-t 'lnt ~ttlle U();-!- '1.huP if h/3 hunw11PJe c.kd J'HualtU/~rJkftn; *rld Ltnl oC-Ibhit d.ov1 1-1-e Sub:.,eau&Jtv kA-11.512vud i ~L
tJeLJ Ml)liCP Mtvtf1r.te()f f}(.latut_eii"IJj uncia Ytle ::z;,ft,JlifL
f1Jrrec.Jr£;tJ5 Lom?At:f fpe hiJ 4AfeWcJnd d~~nk~ til his tfi.
iAlh,'J L lu tJ/JJ hvuJui t/J AlttJ ~o f.rprVJ :J.oo7- ZPII I~ tt.M5
2J "'fe Jl/ ?lAced '-lind hPuJ~d cA:mo116 lit kli'I.V! #4/ ~fliA t/1/)'IJ
ancl t.Ja s ?,o,h·duJ tihe_ b.e.s+ A-vld ltiJPr"t,'Aft M.ulrw ~ ~~A.tn.Ji,)

{:3)

& &1M !1Je ~Ceats)eJ7{:0h2-cv·f-070e0_8_7a-M.f-mBFt1JDro/;cum?eJnt'!3e8h0 /AFi-leItdt/0c5/23/12 cPAagned4!vo1fJ4111.JPela1g1eJ6ID 3313
Ph f~JCAI '-kna ?6'/en}r:_ 77AtJmlf iLJuJ!iht f/rpm fi:tJSI' JtlltJULJ

fJJJ~an N!l. J-le WAS Jttfe.J!f hou.1ui A:nd hl5 cf79fJ.W/Utd.J tJer~

Mtf vJ/ihtn~f ~ R-. u !:JL oP .:::ZS/)IA~d ton~'nune/J~JIJL/o5_j L>f Pr;v~thd

1M c.ftni/Ce-.5: 7hf L-1ndiJ~k.-d R~JAdRI'Jee_ /Jpmoodf"Aie~l W.,r.J

M~. G5hfl~on '..5 &nkr1ued ~n-A/Jrme/J.f 1iJ t/i,e_. 77JtS fl,~IJ .ji!J-#~M

vr ,-+ Would dJLbleLf h/m '1/ An u,?JJSllaiiY }.,;t;h J?,·sl( of'7Jt'I~/Cf).} J:M,,£efl,
:Til li"bn.f tfhojf. 5~CA} Mc:hr~ '*e..b-111...)- bJA~&nduded

+'Ita+ \f.np .::M hresf pf} /Yl£. :Jihn~r1 A:s wf£JI 11-5 I!Je 7Jcr

reM Yf,'~cn ~lf~ftM ' tJo-uld be bej-f ?o;/tcftd //'he f"Uvul IJU.P.fle..-
/(erna,ndu of' #/5 lwJun--r f'J Jen-hAce /rJ fhlofher Jur,~ctoo.

Tr be &1111vl i1-6r~e.d fAn~ cfhp 11lilh:k-lZhf ,ff2hl/cJH''J.JIII

ensure -x+ hf5 J()ft/Af.

i:J A lru/.5M 'iJ1af Wdatf:J luaJ/,iJe~

au Soon fort6o/Ah.ll I rAnd hvu ~Hw i.5 no ev/du1{f ~ ~h~Jbti

~af' hfs nohr/eW tJIII /{eel' h/hf S¥9/l.J· cfK.tu /j -tlm/Je ~,d&'Jte.

'fo lf1i e CmkAr 'f. -:It. '-lh t .f.uI uP ~P5 Je~km hu :2?1iJ

'-ht_ ~tVLAblt Lomf pf' Iudb/3 ~14RA- M.t.. L'f,J,J j J..lf._

rh1d ~veJal £r~ lJilne:::De-s -r~tRecJ ,'tJ in.'3 tlz t~~J .e. ;q%3

lrcWotJ Which ~eLteved tJ,'citff1tad tn ed:A kventte- ~arf

UM~ ~And llAi'DnAttY if-hal all ofJ fnejf 1/troC/elrtj &,,7)aiaed

htrt:il1 /f) Mcf tid ~era£- ib1d A ~ur'i /build .J!Jo5f ?rbyp

oft.l/AI5 JJof (/!J-hJ~ /;e ~t16t:j liie 'I h:Jd .hem ciJWtULot
~d del/Wir;feJII !IJdl~etrf t/6 h/5 ?h6hf 7ie ~ A-nd Naftonol ln!d/1 tJldeJt/ bud;lud Hf-'5 f-A5e.- LJ&~ ~lu5/n6

ruhJlC- i!un£un tJ#I .fhe_ issu f of ZAP~- ifl ?r-:~o{) I HtrkularJtf

)Jil 7e:-ftr5J ~ u~ If\ Lvt:aStl\b htS f!r,flYllf f,e_ ZiPr/:lA-1~

F-or W Y1fa+ .JffiYKJn tf ProM '?rt5or1 biJ~:::J chtd o{f;;c.iA-Ls A-\iu_.

11[. DI\J Au btnl D 9. Zoll Mi. JDhn~n Jk LtJt4~
7rfl V/JJU/J .ftu./1 t/ Re fwu1£d 5AaL tiJifo VIi t !!.aN shld f!.u.Jojr
oP ·T~~ ~~\b..\~1\Y*Vt}M(C\oL SL.ts\k.r PPt8.f.aJ:Aft>.eY~tl:l
1J() r.tJow,J ulA-s ufl£J11 7fY'fr>s-fif72_+lon1 t.kJ t> tJM M~U.Jw DePi! 112P lruret__ffon5 br;tJeJJ.al <:Zd.tla:f.?oll heu5ln6 !JrJ,,h lhu1 PtJ flmiiAI
IN. TeVr:J ht_ LJAS ,'Mmd;Aiil 1/ VI Aced till Sv/,"kr'l kff/JeNnf
Un elM ?u11/kl:vtr tn?d'l:bns. He:.. Wer1f '1:6 A-1\otnif\~-.ttA\ivt_..
(_ L/)

HCaEsAe-7f:t0'r21-cbv-0·0D08(7)-Mf-5B~ Fq..D)ofcu~mcenlt 38t0JaFi)led90r5o/v2l3d/1t>2 d PJaJgoeJ5u1o+f 4i1.fit.PAaigdexIJD 3tm314l'l IAof'
i+ tAla.) !tK.etti ,'n 2, ~Jit44lc)(] r:.oe PA-eli!./s1·n6 J-l-i5 hllSfllrnirr:l~t~t~~
rXIbhf:J Pot: glifJb 6t/tvA-nce5 c.hd 7As·r MLA~u;h, 7ik '?rboll
of1Hc.'AI h~l/l CotJ~l?re_d Y.P Yliltl' h/M --Avtd K.ufl #i/14 1 in·iile__ 9rtjl>ll.J
S?u~J,.) +bu~illb unif /fl 11/a/Jrft/)» cP Au, 9rR£~J!J, e&ual
Vroitctlot1 lh1d 9YIJul1 ZL~uJAirdrD 4:nd Ztcl/. -:£.J lfnp 1\Jhme
oF' ?rofecf!oo '-fheif hAife- Adcir~:l~W h\~ ~=s-A~t:~'f Ht>m ~~J~on
~c.i AlS hif JuilJec H/Jb h/m 'II 1-IDt.~tx~ AJo humA/1 :Be1iJ6 :!J,/)uJJ
hlillf YtJ Uure- [)JJ A hA,Jt! .3n5/~' -l}vad Ccnlrhut- ~ ~.PtJn:l
70 h,'5J !'llld5 W/1-h J6KeJ ~ /11d:/Pw11c_e_ , 11-ncJ 3/trMn~
vlkrMJ r:* !.-\-Arrt\~~M.l.Y\11 /nfiMidAi-io() ) A11li ~~~A-l.'Att6fl h'f
AC.in G. Min ,/J ~lfj}} <Rnc:J '?ani/1/r,;~ ~£M5 pfd'DI/IA-e--1
f.nn{-//Jt M er1 f lJ/IJe() fig- fl1l j d!J11t- IJD .Ji,J/Ji> tJ/&116 ; And JDOW
A-t.J.A 1/ /AJ A- cJojeT 1/i<.l!:. t:eJ/ Fi),e Z3 hPul's It- "i'Mt.f Wh-ere..
l.s Alo +fll.MatJ /tJ ftJLA-cfton. 7h f LDild/lttJn5 19{'ltmR11enu1rf
h/1.5 h~etJ ho+n ShPLXipb -knd hofri flf,'rl& due b fl1t~v~re.
f'~1AI/AIIotJ A-nd IYll.JfreafhUo~ {;tm1 {7lJer) omc:,'AJ~. lti'J
-y;Af\1f:"'d korn Al~nJ Me:\UZD A-Yld I~IS ConfrnueLl &nlf/JfJ'!UrJ..f'
fill Jlle_ 'lEXA-5 ?o3ot1 ~ '15TE:M cAmoun 1'5 10 I!RuEL Ana
un~A-\ ?un,':JJmetJ.ftiJ Jh{)/,:J'HoYJ pf W>e E/6hM -Anundmentf Qnd ha tfTett1ffl ~nd MF;A/r,
'DtCa.u~ tJf h/j ~s+S'tiual U,!:l)Avfl'ltlfl~ h'lMn6S A-t'\d ~e.La.u~e ~~ 1o~t>n trfllt.iAi:J h/JVL BrAnded h/ILI A'~;k»''
He.t11c:H.J -Mc.e~ 11 Sub.sfA11#AI P/.sK_d!fivz__tfiu~h4S.5LuU~
flrufal Bt'a#;u:~5 3 'I '?rt..soYJ 6uaJui5 , 1111d ~J/211 j)ijjflt blf
be;'"t f?t}Jurned W YHe HXA::J ?r!svfJ SY5hbu 4 t1Jl.~hn~t\
f.eMa.'n~ Jl\ l»7'1,5JtN1l F£A£ 7illlf ?ffJP/J JJf.htiA).5 vJ[t/
H>uow il1foubn W/Vh YKR-~1- Yhrto!3 c/o have h,/n ~'lied /A.J
+s R~tal\A--koo {;;r ?t:fi..Jipn,l1b .Pot Rulrt_55 of hb ~n'ev/Jf)Ce~
-A--DM;n~fy-,q-fivel tf --And ~vau b h ~'-kt e_ ~ A ,e h/5 {}J, 't161w:l ?roS-f-Lu~bn ofl /a.tJ SuJJ_j A6A-IIl5l- Yr/'Jth1 oiJ/telA-l:5J., Mf. StJhnJotl
WA~ ~d Ler1tf11ut.s '-lo bt-&.litlul -fo beTrl4n5/2vu.J 70
we kvlbther ?rt~on s l.fJieJlA ;Al oAnoh..vL.stl:.-rL 16 /EY..Jt.s
w Vr\~on ~'f~ieM~ Lhvr_a:r ~ hf) uc~ due Vhe J.Jell ?ubJ,a'Z~
nbfofietv' of W,e_ 7hreo..f5 ltbA:I)sf- c.lh'M MAJ!ES Hclu AAl
-:r(\v;;--;(), TAt<6e-r: hltln fhe kt:~ J-e-f' fO~fh ld-ftJb
(5)

Ftne e-r L/o 16 ft Case 7:'0-2f-hc;v~-00L08o7u-M-BF Documentv3/8P0~tJFileId+05./S2h3£/1>2uJdPahg'ef_6 o/f()41A P?ao~g,e-.ID.Jr3£3)(1]5

Lont!.Judl ~af V:htre ~~ Jub~tJifA-l ~ find /AYJ!Dnl:llldtc..f«:l

..fJJ,'dtnc e._ ~ .'f7d/tAfl- 'iflaf 1m~ 12tA~'DnAble ~r1 t'Al flf.j
·vb ~1-\ion WouJd hAvL AmPJ-t Re:tJ~n 16 kAe fo-L J1,'5 :!14{t.f'l

Abovf_ 'ftlaf FcA-f<. & iJeJL,' e.r1 CeLl b 'I Wlt- JVu:i/nAe'l lnml'rk

'A t(\t_QA Ce.<"A--k_d it\r 7~s 7r.·5£).() ~y>~~.
Tne &/drnte_ MreacJY i'ndfctJft-5 YMf ht

~cd

JI\J lYtAse.d DAn &-er i't'\l Tt;.,~~ ?r~ol1 ~ Lf*M if 11 e. i'5 A\tt.we.d

To Mi~ tdll#J Yilt S tr:J.f.pru '.5 6e-n tJu4-l ))o?uh~+tofl -1 Ht~ n~Jfoffettf

A-rvj fli:.s 7re5enf' fU-~Jt'm:':l fnA+ ?r,'~on of+fc,'AI5 Ll;n~nut- ~

'f11rtt1hn <-fblu J l'niJJ<gS h/Nt AA.J ,',v,··l·i()b 'h4~te+ fvfL 1tr1t.f

d.·s {,'runHe_d £M hArA.s5 'i-A'f

97rrf/SSvor1nPAru1&-~hol5',+f1f1~sI+.

11?entbef< who
/h-e_ H'i-ltS

~W?AAnrf'6~lkl+.

D(' tf.'rvtiAr'\ \ 3u~-h·ce_'~ ?A5·r Aid ?re~trrr t!:Xttuftve JJrtch"s

GIHt'l J0hnJof7 ind 13eAd L'vi()b~fbt~ hAS Lo"Leded ~tJ Wr~nb
Ana '"'e\v Ac-.flotl5 1;1) 'lne_ ?lls+ '-~hal /YJI,J/Jnn:JJ)n ~,ntJ(nu./) to
t=Ate A-1l lncrea5d 1(\'~K oF })An6er /11 W,e__ Td#f:J ?r-t'jt>() 5'fJim

ltncJ ;n J/mulcltJnelouS Acts t.fh el/ &mdudul I!JiJ b'l trllt1j/eJ,;u'/)6

fh'M /11fo S74/f Keer/tJ6 sfolus Y1nd h'I WAtJ50vu'A6 h/m 16 Ale¥J

TU~XICD~ ?r,)of) i'/5/eni foe hi's Lon~t\uecl ()e_u:/ !;e_'?ru~c-iton.
me. Ionn5v() e:_rY\A-11/l~ /1) Yr'lfuaJ !.St>}f.)ftf)() f}f WJp YACJ<. I

Ut1/f J ilnd IA},'/r, nl" tJ IYU/'£/to '5 7JAc/!mtl1~ M hi/H 'ltmon6/·F.5

beruh..a/ f6?ttJokrJrJ o+ fhe .he__},~5f 1Jf HI-A5'-5 tL-ulhor,'ftf ,jhpLtb

tfrtaf ;, f 12Jfn /3-e_ :314te JL/ ?roft.cfe.cl A"hll be_ fnh'tled t/ri IJf(_

5fht1 e~ 'Prlv/1/k-.5 And ltme11lke::s A:s AYJY 12Yh~ 9r/SpYJe:£._/n fh~

TAsittut-/D,J_. T:r mu.s-1 Jho~J 'i11ofAe &nr1rr-fbL)(ePi-,AJ

~OJ ,·.faJLf Conh'rJe.merrl /;;£eve~ , fit IY1 u.5f- bf 1111/Jklul fo

Oftte( ?t:v//,6t5 .-e/Llat/ed !J'/ .lVftu ?r,)l)/Jff5 ,/) AJ1 J!Jsi:'-Ju#dl.

He I~ l:n flfl uJ fr.S Jk i.JA.) f!1A-~':l ;f,,uJ b 'I Alei!J IYJt'ilt:.1 ~r'so()

Au#wriflf f6 &ll 114cf' IAJlfh [)fher ?r/Jpne;e.s And J+ ,'~ i11 e..
Qhh'6Ation eP 'fht ?r,'JorJ lhrfhPrifies fo ENSt~re ihAf lie-13
?r-ot'ec.-tui ~ ::Jr1 ltdcJ;f/PrJ hf Jhould be cAhJt ~ ?-uG,rM

SuCh ?rl~oy') vu-lt~ lt:S 1tPPrt/?r/A+l_ Artd ~houJd /\loT Bl!:.

::r KEPI ::J,J J)IE NE.SS.

Case 7:02-cv-00087-M-BF Doc1umJZen~t 380 Filed 05/23/12 Page 7 of 41 PageID 3316

e.u. rfJfCCW':le h~ tJA S J~ua/1 t( AS5.aui/id lfu,cJrecJS .
lLP f.MI£S IAI (TueJ :5) 3tcd " IAJ,·Jh an f/meon:i uP 'fi-c#_clton ,

mi. Sohi150fJ llvts fr1 lDn~a:n-1 dread p(J hi.S Ptrtv1AI)f'n-f alsNJ)JH'f

~ IAlhfCh c.fh/5 row 'f h-etVtd 7iJf:mm 1/ t>f' 9si.fC-h\A-t'tlc fJxPtlt

albnb wi+h ~,e ~ubMt~~•on of' ffis '/({Peel JA-nuA-rtf ~ZooS"'

'OF?. Hrr'l KuJ?E.i~ .fmc/ +f"lrt?ubh h/5 ~munl-t'l f?.Me_ 9r(}tlidtr_3
A-nd ?~ YCh/AWi~+ .:IAJ Zbb 3 tfh t- 1/ have d/fl.6ru>5uf hkn IJi.Jh

Ser.'ou~ fY1 f (')+a J ;:u ll'le~Se::J R-nd eft//ere_ 111P.Od dl.sl)rdf'r.s ..:UU IAlllith he J uf'.0t 5 fk.ottA; &m Pit~ I ~hrPn,'t:- ?osf 'frauMcrlfc~.J#-55 t1t5orcleJ? (P. 1. s.D.) .: Mo~,e lJ.p Prt51IP11 kli-IA 95'i'Dw.Jtc ftntGto

lh1d .St!hioAfltdNe_ bt~~; 91:Jrl A- Bife>IA~:d. iJ,s4Ju:Lu.._ J,..};/n

$ ev-ere deflres5/DY1 tmd ,Su/c/daJ eJJ,'.51Jdt.~ I tJ.i.fh n1al1/hC-
5'1m Plom.5 ~ fk IAI!J5 1-tl'.Ahd 'hrPu6A /Jllme_rtJtLS nuniA-1 J.etJ!h_,

l16tt1eies wt'flr. IYLlci/Cilf/l)n~ tJhith ::tYJdtidtd J/fpnt tfnJ/""
?~lfCho-h'L fl6en~J Stro&ue I l & oo M.b.) ./ il.ePAKtd'l A f'Y11)Dd
S+t+b~)izeE( Zow JU6) lrnd 7LJ!off ~ AtJ#dtfre.s5anll21/oMt) P&-~'1

1111d WA) fp~c.iefh/16 Lc~'AI.iP/ur:-t'l '7Dft:tl iJJ'JIJhlliW .henea·fj; t12r1 9~r~~Alr~L 6r"dJ11dS. ·J.l.ts n,um&LDU:J fJ:urm//1/f~~YJ~ L;-d-

~/6n_s of S'fmP.Jm5 tdh/ch /11dud~s dl-t P /YJIJJor ~?r~J.Jj(J 1 Albr.f-
MAft 5 , fJh4~A.hAcK5 , f)}J!Je_55l Jl£ I-!JtJu6AI1, An~f¥~ Hli5hh~

~·B.tlili~ A-nd Sult-1'DA..l ThoubhlS A-nd ID
IL1.1L~5i Jle- d;FIJ'CJLJfY tJI/h LDYJt!BnftAYrf){) 1 t/Jnd

ufTio-nS J
~rceP~l

dJll.,rJA~nrkooinA~1

A:nd fh1llu~;,()A+tl)nS ~o}h -Audt+be t/ rmd VtSUr\L.

*' 'The- for.cl/H1Jt1 s ,P if,p JuJ,'/or '( &n~'ne.mellf rll5e~A WAVe-

rlA f ~ fJJ
?5'1e.hoS/JuA-I

f

~fYdLl n£fA,vI/t

'l-le1l- t tt-:1
onhUnfaJ

t:rf mf.
?rt)h/t

nJ1O.Jnhnujtf)~l)follr#rlI

&u~//J t,
t WJtUwu9

(\-c)~ oc,'A#..d LAl/~ W,f .U"rtWle sPciA-1 :LSi> I t'dto() Atd 4..duud
tn v/f/)11/Yl.tJ)fal s-limuiA~/IJ() 'iJnd /n #JiJ L'A.St. lJ OtPr/v/'nb hiM
*' oP .cS""r1i+V •+~If', . 711 e.. l)tflr.donl ?r,~f} oPI!oi4Jj fLu. Be,'rJ6
D~J.btVtahllf Xrtd4~n+ St~Lf tTttl p/.Jt4h lflf11sft g oct_/ci ilft- 7fXA) <"J/)Ptl St/51/tJJ-f f6 ftft nunc/a/ ikA-1-ih ~SJ(S 7o3&J b tf 'ftre Concll'J!Dn5 JiJ ::Z5o}Afrbd. lh e LiHlcli·HotJ5 he/~ tt~
1:o Mt Jo Cxffe!Ht:- A-~ -/; U'u!A-Iz 1311.5/c l!tJ/Jt'Pffl L>P
+lum~t-nlf'l fmd cifr/ve. htm N A- IYJ/niMAL levPI ttlll!'t'5 Atlt55Jh'e.!J/
khd M f, JOhn 5Vll' j CiJn W11JJM tdJn /}() un£ni,/J fAeJt ~d,:bn:s

{'7)

C·aIseu7C:02I-Iccv-.0.0/0s87-3Me-BnFouD5ocummeen/t J38i0olFiYleAd-i0tt5l /2~3/12/nJPuatg-e'18 oi.fJ4h1ic.PhagIeMIDJJ3/3~1}7,.5 l+t.s ei'bhfl., Amn~me,,f R/6hf5 (# '7FIL lJJnd/..f'/oiJ5 M.t .50 Blld t.Mat ~--tr,'ou_~ 9h'/5;lA-/ And P~'l~ho";C/liJI dehrl~JrAifoTJ 1'-s /nevi4Able- lrnd 'fne (~Sui+ he i~ UvPSt.d i6 is UueJ /nJd
UfJLLSuaJ tflutl/61--JTYitn+:. r.t fS ~Soi1A-h~ --1-,s ulllilldL
~t.tf r..fl, l nXA5 7rf~ll Dftiu'AJ..j nltve !4-C.fuaJ SLJJillcfiJt>-
Knbt.J 1f-d6t -h.af '-lh£.. Cundl-lt/Jn5 1/J he A-DMldm-lirlf
..J~tf-tA tlon u IJJ·+ Pre.!Yt11h A SuhSfiJtrliA--1.lh?dUL.e65/ve RtsK o{ .Jffle.M A.ilifh fU5rt-e-f t/6 Met Cbhn~11'.# eJho 1'!l M~u'(
J:.ll lh1d ?tulfl'.LIIIlrl'l VulntfA-bJ.t_ Wlandt'ftlfflj J)f ~fteme_
*' "X~ol~tJa11 -Anrl ~cluud £r.v(rPt1tYUtl-fal f-kmtJAf:on. Lh-1 c.!Ae'l
unf.'fiUf dfj(t6Ard Wte.J.f_ 2'jt.S J A;rcl MaKej f)o ~b}~
A-lftA.r111--ftv€ /6 tfrAn~ h/M 16 1fno1fler ~k£»Jal SfsitAI
fJi< eJ#Ie( .J!.I'it!/udf h/IYI fr'pm "11-diYI/A.sltAif.re Je:6~e.6A..JioY7.J
Amt-1 lorAf, V11e tJII'endilt tDrdi.J1oJt5 tJi-lh ?es~ct' {( Jlla
Mil. !Jbhn5Dtl M IJihtaJ/5t- .1c~rlPusl¥ !Jiltlr~.!J:J t/I;L /5jue.
--1-hi5 mJfrltJh$ ..&1/htA.ah lnd, f'leunt ~ lr> Alb htb11aJ MAlh. lltttlS.
'The'l have tmlduJ~d ~ bt_ dtl/blftffeJt/ incil~r~n-tkhe..
Ifttl.. o( adt iJuo ft.. IYJ.i IJftJ J 1/.eaJilt 1!tVtL ~w/du:/ hl,u lA.J A.DjU~
7/i/5 tYI f'feIf ttndv, flaeS Yit..JiiL fJ..A Ilous I10CK of lJJnCPu> fOe_
hl!J fYUni1.11 JkAJ.fA lh1d 9ul5 hiM 11f ~:5K }Ill t/ne_ lrnm/nsfflrive-
:}e[>feti4-hi>n llrli-f'. --he_ l6rui1How.5 11Aud LlPD(\ HfM .:tAl AD
.JL6rt6A1fofl 'JeJS W1t lllrl~~t.-f3f)unds ellA Jhitf mo.5f Hum~HLJ &-n '(j)5 YChoiD6/UII V ""£1erA·k ~d .{;;~ t/11 f <3.ASt>n.5 .J-hJftd ~"­
-!ht~f hl's ~ a1 YntJ loY. '-1:/lut_d Cnn~lle_rvu_(l+ Lrndu_ file_
or 9rtStnt' ~di.JioYJS CimJ~k5 /!we/ ~ unu~l 5linl.5)u?lPJri
,\,j V/oJAflof) W,e ~/6hfh cAwundhttJ1+ tfhdu_ 7iJo &ft.borfe:!:>~
r DAle fj he~ IJ-Jread IJ1.11JVdJJf' /II v!nd 7iJ!) 1 he iJ Af A-tJ
Ll-n ru~()A-bl'f hlbh l?tsr. of J'umrr1n6 IUrlhoe tJn6/)fl16
lnrlbf'~rt\11 ,Ser/llu.S Tnitl'lal lu a 1#1 &.-n...r~Bue.nus /1-S 11-
R..ttsuJ--t l2fJ h/.1 CJJn{!;j;J-eriJen f-' W 11-Lsenf &ndlllol1 JtJ A-nMirtl
Sure.l~~t:M JAlh-etJ l-l.A5/hlf-- Ail'fA11Aiive:J flJ/51.:5~ Z-1-/HLdf be_ df.~f£A Mtne~ ....JJ,af JviAJ ?r,3IX1 DFti'C1Al5 l1A.t tJeJJ lk.Jafe_ o.f ~e_ ?<::,ifrJ1olo6tul 1h.-rM Dl 'fhe.Jt ~d1HP»5 fbJd Ht5 ~JJsu;,6 ?A-JfJ ~d JufltAJl-/IJ~ LJIIh tJo ?r11?e::R- nudorhiJil/
tff1l ~e r'\4- dlJt Cnt..n'l Sel,'nb,.,
{8)

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 9 of 41 PageID 3318

M:~, tJDhn5Dn ~~ -AbM:Ai~-\-r~-Hu~ SEbvt_h;tt.DY1 i~ be:f\6

U5-e..d fo Uv1-l'.on:}·t\t'u·Ho"a ll\f> <&V\bh htM h£/ Jvu.ri116JJ,M ~ tJ,c.fh A YYU 11~11-) ::zJin-tJ5 KnouJ,'/J6 <1MT' Zt.5kad t>F Pr/)-kt:h/Jn l-l-r5
;u ne~~ Ul.Y1 bnl'f be £xr.\lerbAT£i) b tf fkp de_PrALI~t'f c* *''~

lofJ!inemen+., MfnfaiJuaJ/J. I!A1Ju ~~ Suh.JtJ::f 16 fnt J'mn-e-
Lon ~fu:hona I JrvtncJaAdJ ~ IJfh.VL fo~j ofl wtsoYJ fl'U.dlCAI

tJti e_ ~ Ch. cl dd/b eJl f.).f.t lndJfP-eMnLt- '-16 ~-e.r,'ous MJTJ~ill AtaJIIt

nt"td5 V/oiAfl~ fne [J'6hfh --A-rw..tr1dmen* +115 ACuff And Stnou:5

D-e9f"f s~lot1 1 hi'J l1,rea~ ~d 'Z'St-5 b'fSt-~lt.idL *rid rUMiAL

Delrt5~iiiL I B/Po/Ar df5~ilt ~t'\ ~-h-hrk.5 A <)-.ex~cu~ M.LdiLAI llted.
+or ?ri:>oY1 DvL '7l havt dotJ'nbtAded h/5 IYUn'lal luAI#t d!AbiJI~3
MfeJt. merirnb h,m ~ onJ'I ~ m/11ukj )I) frotr.f of SeLutl+lf' orh'c:iAb
~d ~ wAs t1o evtdence i () tft>n+ t:! hifl'l -# J'uifJPL.f IJ/5
"t--\itl.·cA' .kr1d;flb~ 11 *nd ma~) hllvt 'llf'Yb5ehtll~ Mlsd·~no-rd haM

Artd tf11e_ trwfme11.f bP h,'5> rvu11-h-l /1/nt:J":J lillt.JhtrP~~deParkt~5
From ?rok.~~)otJal 6~ar1dardj /11 W~a.fmttJ~ /he_ IRt-K Dfm,ul.'c~J.J
..;bnd f'Y\Q~aJ lualth A+f-tM/tJt1 btf Jlr/~ DPLIPr5 .JMJo bellbtrAtf

)nd:hfe;,enLe_ &rau~t -even A 11on·dDtfj)r &111 Ji4-Lf i-flrtt-S Lonhhecll
K.no'-'-111 ~af l5oiA-Yuf £onf1neftUM --- 'lt,e dei'r: IIAtfon o{' fu.JmAn llrtilll-f
14nd &Wter J.enSov'i ~d :Inf'rli~LruaJ 5trmai14~Yl ~YJ havetdrl+rt1ou:l ~~.U~.u:e ni_-t-~ r fh1 d Wt t_. ftJut h Aflvt- /MiJ;; A-lso h tJd Wta:~
hout;,~A f., ·MeV\ fa.lllf Ill ?1;~or'\~'S Lindett &ndill()n!J d t'i--ltt'me..

t~ olA+tb n l.S Ll11 LM1.5-kfJ:J fl11ru#,
/tl..f-twu6h :::J:5oll-rkot~ !12fl ?rt_sp/Jtr'-5 uJIJA /JIU!IJiztJ /11 nt~5 ls

N.of Unlon!>·kflrltt;,,a/ A$ t1 Pul-L /..f I:S Suh:TeLf .1-b IF16hfll

ltme11dmen..f-
Vl> s-uJ th1

I...J/11//t;#r)}tS ~5e_
un £iAJ/'ttJAblt'.- t'J·:sJ( PF

py;·son
/J£l)uU_

ct./t:oAndYrrHioYtr!1n~er't~fh~ah..r.f(;

hLA-Ifh Met Y 1/t'PIIJk /he fJ'bJrh AwundiYUnt}; ·7ht &ndt/;bl15

iAJ .HYJ'f .5 ?rl.5Pr1 5 '!.5 krrt r/tcm,/1..JtA WvL dei>tl!-M#/)17 un,if':; !ht~rli
1//ol~fl- wnJ-itfttltPna/ ~ndar-c/5 LJh.Pi1 XmPtJ~ LM Jl'ltn#,,,J/

~\\ ?r/~Diler5., Jr1 U6Jcf d thL Dhv/PLl5 JevLrlf'l o/}
V\J\(, J0hi1~C¥f\ n-et'-d ~ 1 /+ I~ fo _h~ defVurl/tfJt>d 'fl1a f
Vrfson crf.llc/A-1.5 htn.l~ 1-en1 htcl LDnftilutJ ~be. del/herAkl'i ~d\Cf-Vie_l\+ '-R 'fht_ ~JPU.S Z/.5~5 elM fb~-u/ h 'I St.Jllli.cf:n&

hiM Yv bJn~J?t.mtrJ'i' ,'A] ADM,'J\1 J.e6fe611ltw1 fh-rf fift!i ~-f't.11dtd

(9)

C.atese_7r:,0'c2-dcv£-0J00f8'7--Mf!-rBvF~tDbeotcAuLmOeen_t %e. 380 File'dT~0o5f/2,3<r/1+2.oilPangeA1~0 ollfv4v1/dPeacgleI1D13/m319
-f}i*'emt :5-ift_jS Jhtld tdor5eJ1eci hi~ LoTJdlfi[)() lhd ~~
\1,\ol A+t~ 1-\-rs Z'bnf6, lh e Lor1di+t£n1_j ? IA-led L1Po11 h/M hrede_PI orAbJL li-Yld 12ulieb6e£JLJ_j 411 cl fi P U~ s, tJJns-kltrlbtJ bmnvf
A81de_ :3ueh A ?trtftr5e Antl LlfJlcifJ~tJ'otiMlll- ~!:i-15-hm trP-
9ufJt5htrlPlJ-f, t.f1u_st_ l11 MlrP?r-rAk ~at"''cm'i tiJu {'~,116 hiM
A So f:AJJe£1 'Uftbnd fiJPe 1' t..J~·k 011 !Jn,.f1.,YJaJ IMPAcitB.uaJ
Jv Wlaf d dedual I4B5CULif:

~.

MI. TohnSPn has .exPrt-)st..d d.ftenu ~ 1J£ )u'5
L1fL lh1d SMef'f A1lcJ h~J-5 /!,)u/ bt/er as ~h f) I 1h1clsltf2. trrevi«.L

U:uv'\v\a/n-b 117 A-uAA.dan£t- td/Jh 'IJP/JJ/M.hl'l ~e:r f?rocliiuJu:s And
VLRIJ sfoflclaJu/5 , 'ltnd A:5 A- f!.L5LLI ~ ,J2 if+. e:':Je_ &mPIa lnb h!-

hR11e~_t,h·eeev~nc)Yh.b'-IeSa7U11J1I

'/ iJ-s.!Ja.uJI-ecl h
.JA,wf:J '14-nrJ

tf ?r/s/)n 6-uard~ ~mel
CtlnktJue5 )£ i.Je- Ytlt 1i&f

of Re·faiiAill)/1 11'1 Od fYJ!IJJ-kAbv.s IJ11 A iYt!l'l :&11-.!3/:S fl ·Prt5t>r1

tJJI;t,'A-15 &-n 1/,ue Yo £n6r16e t't? LondU£I LJ1.Jh 114/Jitce ttnd
~et..K.Jt:~S [)}l tL1JJDu5 illcltfferenl e._ '-fo' ~~ lon.sk-kltdna/J'I
Qncl .~::Jrrf(JfirV £L>JJfj bP /JJLi JOAnSP/tl # fk t#lJ Cxllt:tu.skd tfJI
ltvft//'{}bJe~ krn/n2Jft11ftve IU_me.dle__j A-nd JfDvoCAtJI 6rouP5
...-u~s Ass oCit-r·J/!Jn lt6AIAJ+ .f-erl.uol AJ!JauJ-J Olhcl .SL/5-I'})ef~nftt>n

-:J:t, }VLn Af.or1 aJ h14-Vt iJo fh 1/rbDrL>uj I V ,41L) VVCA "fu/ 011 h {~

heh A-I~ Yo /ile_

tJ /~
TDd:S

n~vL/L11J.J-!AhIJlUlJe

IettM ,
/JI/Pr5eer

?Dhl~o1t1.e.:h(}.-A1.JJ

5 J erne/ E»tcuJJ
&11-d LlV//Jb:J

k

~d l'*''j k1sl:lufth'Ja) JJI~Uth~ KllX llia/gL AloYJh tJIM t/n~

'PYeA KJmbudsMat1 1tvld Y-tu ?r,')ofl <Sf~~ ..5~ ?fiSDfl iJDbrnM ~r~ofiM ~. t-115 ~JJtf <fl:rJd hr/end5 h/JI/e /(pfleLlfecil t{

LDrlfLJc.fed W,f TOci-- Xi) tJmhud.sJuan bY ?h"11t OrJd u.s. Ma)J l}/V\d 'h1e fuPaJrtMin.P~ ~S'?eLtD( bet1~}j t>f.ke_-hxe lr1ve~-lb~+,M
~d loP sfofL !JlJJS?•'hLAhD¥'1 ~u'A-J~ ~ lhert J'-5 Jt'nuJ/{:;;

tJo ,,9~ KLn~<;d lf W1 tJ I .ld/.5h ei!JuA I!Jr£Ju6h AdvoCAC1/ DiL 11\L A-d M IY\SftA .five. 7rPCe55 4

.A r. btf fl/t_o~/1){, fllJ, /Z_fA}/J? ..f;//11 f.JA/M nB._ hit-S DLtfli11u/
rt h4c_+ual bA~ s ¥htd ~hDwtJ '-li1a.f' cfh e ytfJJitr'Jt' Adlolli -r~~en Aba/f\5+ h.~nA tJA-s dofle ~L iZLfaL'AtMt/ Z:>J4..~.12S

{_lb)

CAasned7:02n-cov-+000{}8,;7;_~-!M... -BAF lOAJu ?u_, ~ c•/.lo DLofc_ubm/elnitM380A fFLiled 05/23/12 Pa/JgaeJ11 of 4t1o::P£a•geIDM332·0
Jo1-111 5M ~ ~ fu a. I bt4~~~ l!l :Jh6ltJt> b t/ Ylfe ...ffln-e J-e G..u f nt e_

~ h/'5 Yroftt-Hd kJM·.f'1' c:And Wu AdlltrSf AL11v11~ UJILJ.A.I he-

nA) bter1 A~~a.ulkLl blf 9rl5P11 b-uaA.ds A:nd ma~n tfhre~.fjJ 1/rr.J,J

J..,~ rrAs~ en+, ~re_ub d2 iJod,·rtJ hAeM , PJAte/YJRil; !AI
Je6rt&l-ft:d i!onAI1e_rntrJ f- lh-\d iSolA~o A Pwt ?~5,-s-hn6 j,J
Yur~u/n l br,'t. IIAnL.f j Vf()J A-llnb h/~ ftR.5f''l1-nunciMJnf-ri(,6h}t>. t.fJ..L (
fl ttUf ConWt1u ed W de11 l/ cAw/ ill fthJ f'ou LJJih f-1[~ 1\t\.JLJlcA} &(~ ~ ~t_ d \fiu ~ t'W\~~ .[}Dnf N_w (\AJ2N.iLD It1+o IJIIYJor~ datlteroa.5
--env/rP/1 nutJ-1- dr.d tJJtw f. f &ln'-1 al RL&u.·te_ i?~hA.h\}i/At:ve._

fYunfttl bJf..h "Trenf-rw_(\+ lVI f. JD hns011 has ?rPduud

-fV,'dPYJt. £ 'ftta/
f!vrt Crtai.'A-br t/

W6u.aJJod~/5JeJ/Jhf.',

J4L..Jion5 atP lt1 c) LJ/1/ 9rbllt'de.

f*~ beint, l-f fh,puJh

dooe
/tiS

flu/() ..SVllVlt1 5-hh!VUIJ~ biJ.Srd Pn IJJ~ fbJo11ol KrlaJ/~d6~ lrnd

1-h'S H Yfim/)/J tf Jz{iy, e JJ JurY' tJ;-JJ fh1jwer tku__ &utJ-1/tJn c/'
f6f4lf~rt/ rnolrw~

-~~~ e_ \rAf15 (v, ~DM rJf.W fU~·ii'LO IUA-LJ ViV/Afe-
SLtb~fanf.ve. tar.~+t+ufiLXlal Kibl'lf-S ..even ,yJ L/l, ~I/ do nlrf R~senf

+14 tluL ?rf)tt!>~ f55Ut-. Mt~ IohrtSor? Should /)tYf hAve.. beell
t'Af\.~) f.vvvu:l b-.\\-c).( 1(\+o W'Ll!- ...lA+nbl r£JU.5 t. o b 11dt'h s )1 th?d
171 Al!-ecl ht5 Life~ ill dcu16er b'I :J-n ££VLt'1JLA_ flnt Ut'M ::lrl ~~ ·
.Tt'IAJ ?,,'JoiJ SfSktUS ~ it1 ~--ft~hA-h!Jn & 1312J'I)t~'t16 t/I/6Rifbll

1W1 hM -P/lVLLi~if\l tY.fh.nJJ l!o-nJ/.tlfl.fo11aJ f1'6n/J i:J'tLLLL-L!JL

·n ftu5t &.i_j ah U!l}/1/AJfu),

e trfln~ J'th./i:ntsJI//hrt'abiJ

htJ Uf:e_ A-Yid S14f.rt'l And 11-t cJ.h4') hJ bhblt:Jlu.d '4Zh.ftJhete_
'-fhl fM~-Ir~ul/1)11 ~lte ~ ?r!sPn tTf!.hL-/AJ:J lo 'if,JII;dt'

11 lLt+SDt1A'hle-S-a/l'i"tf 11
Pro-ttL-t- '-flu tvl 7JvLJn,l

f~AM_-.~/~<a/'5...u~If+s./..5)1h21/1/0

1
12

GHd Wu if MU~~
ifAu__, /) Ma ft,5 And

FroM ni4Zi4rdbu5 Uv/t16 ~d;k/)fl_S lh?d f'nllJ-f fllkhA llt:Jdl

j u_IJ TeLIIr1t <f-lum t/6 </ilf LltJ /)eLfJ)aJt if v:lntl -W£.1-J:s/ve_ LJJt tfl

HJ lLE- • .bu Lftu 1(,/;hf

e
h

Y-6 t./iu,J f JertiL

lli/JIAJun5 IYJ£.
Y1u. RLMt:J,IJdM

:tJJt;fhhn/!5)oTJJ~/JJfhmocut:J.d_LhtA)Vhie_ft­

12 .~\ e~ 1')l'ol.n},/e1.rsA

A/ '

I

ht::> SAftO-r'l' •

f Vi,~ cMme__ fr/v/1/beJ Clh1d bbhMitt>IIS IB 111her bli_ilIn'5A0JT/fIhPIUY!-'t,fr:/AMJ·5C/nmt ut1'JrIdultJeleAj~ :Jxs Hnd/kJ/£oUt:_.,J -/'we.

I\U_~15 'iv rr/)ffcf At'M From ~ vtnd /( thuV f!.A;)f6

(I})

To /) l.nwt df *s c/ Case 7:020-cv-,0J00087-M-BF '-/:DJ ocfuYm)eOn}tf3~8_0.1F]/i1leAd 05/12}3v/112JtP1a.gJeu1t12 ofo4f1l Pa·g~eIfDSo3V3I.2f r1-S
Who tllu_ /t1 dar1bfl.. t1n1d htt'l u!u__ .J.c iJr-of.,L--1 mf. JD hrtStf)
ttlhe() hf ,'~ An .:Invitrt1b TAr6r+ C:AJJ b-t deJ,'h.Jvuih /lldtfl'&unte.
oo A r1Un1 cJI LtfuAfj htiv'e. ht Jd ~f ~"stJt1 dlRd~l~ &IJ,'t>t
It VYi~ll·eA A 11Jn/feJatt 4Jl tlfJUA tJl5f I&Jr.uJJR_dt.t> of' i7rtJviJeY5
hot_ fllr-5 I'J)[()?-v..altd i.JJ-k letu.l ~~eMtn-1 /).)Lj,fls IJS11AP)e,~ed
f; 9r/sot1 :3/:af/ J4-bJt-tf We fntdw:l M .flntrhtvc /?/5JJl?el! / !An
Lons-+1--fu+.., dcdibuA-h ~d·~f~Vun(f,

·--vn".

Mt. Jhnson A-SK c.fha~ Vn1:s ~~ fS5ae- 11n IMLL~r

f5~. u,'nb A- l·e.YV\~mh A- r tf f6__~f--rl!i //1 6 iVL.cLu &..t. /Ju~JlhllYlaA~cf

;fL1unc--h011 &Jt:d 0>1 t./nt li4-£,IJ p,£J L/h!J t!A1e.- h~tAA..cl before,

fn/3 !'!nuA~ v:nJ cJ.ePkmb.eA d-tJtJS: l-Ie .¥~~ .5-fnndlttb

Ztfuuy t.fh!.J ~..; -VJfA-JJ/sht:d fk tJa.s :::LlJur-ed h'! PA-S+

?l/nil')5lotJn-bo~n'oCflAcIfh5e

LALJ fh1d

5 "' fe!)(A5 bePM lrn~tJI ,H' (!.Ju'M;'na) JteK5 t/hL5 111JUIJli/tJn bl!l!Au:1e

Jus}ce_
tht-

.?14s+ v,·DJ lthor1 ~ h ~I)( A- {.1)() Hnu;nt::, e.f-.Qc+.l Jt1 Vn/s &..se

lo tlt'.J s+of)ct/116 /5 e!JhJJt,:JJucl

'kJut'_ IJ l/ffr75/U__ ltl liJb

f...c"f w M!l+anLe I:J ecatoe t"..f fJ l$us-lt..fu -hrJ~tal/1 fL&.u ,~,uf 16

?rrrr-e_cf h/J tClh oIt fhui

LJfe ltnd &if'.ef'-t
!lou./ /61uhJud ~

&cawt. :L i..JA~ ·QtJ_ttif"l D()
7r';5/JfJ t/h e-5 f lf{J{j ), AJlt:. A

La11~nu/116 efkL..f cJYJ h/1t1 /it lin A-dv~rSI' AiAtf thd c./he- 1/r'oJ,g.J:~;tLJ

hr'tS
flu

PhueieWrJJt~

2L?-taf-td
lr'xel,hJJod

J/1
b

f

<~h"u.ul.t£l;uVlkol.llYfPnM.hf.VJUIJbpltuJ1;/5Jo6t?

~lJin f ltmduc.f ttbMIJ5f hiN b'l ?r,~5DIJ pff/'C/A-15 'lt/(e

~l-Ab4Is .3~hoeA,111 ?a~fof' A

Va-Hvtll of oCfl"'•'Allif t..f..tr7c-kvMLi Zeh AV:oe PI' 7-tJIA-5 14-IJM L
a+ fJJ'.f1-tJAJ:!JJ lh1d Yhal Yht l'cnd;.Ji£J/15 '?rt5tn-l'cin ££;;:ajr,fii,,.,
'-11, r't b~f lfr1-teM •

kui,'hoad

'Th
&I'

I~ Lou
f?ecur

rti ntUJ
llflt-e of

'/' a..l!LJo /6_co 6 /J IZL fila Y/1)/1/ii.J/l"':J 14-biHIJj}JUR,

:.f£ht/n;,~~()

Me_.

~(bV..{1arf)tn{uaf+~IfVef;'1lL1ou1Pavz.le_n&)!(lnfjJt~o4tM5J~Ttoltfn:'iliAitn-AeJ.Srrns~u?iJrniLeJtfhvUtt1llJuVuL/1b1il'i(1TL_ah>enfnij;7t/siI'PlXJl liA;l't-~:.'':J1..D1tiA'?,bJJJrIeA/!II:IRJIJhpuLorJrJtj~-Jt,:_IiJJJ.h1tOAMMdbvh6nl+t'~I~/.~5//PoI

l r\\so 1\e,{ j 6i./f1 £!Ji aU 'I jjth1'1 At4Vl J-f'tlnd/116 #- JLeK. ;hJt~~f~ns

(IZ)

Cf+abselt7/:0l2l-~cv~-0/0~0\8~7o-Mn-BoFflDl-ocGu'm~Ie~nt M-fd 380 Filed 0~5/i23f/12t1JPuagerz1_,3-~o_fa4i1-~Pda.g.1ehIDu33f22A

e ~Jfasec/ L!rt d,v,duaJ do-e.5 hoVf S--faru-1/nb ~ f!nAII-R/J6e_
Lafld,'fforJj u1ktltt ~~~ had a./!..JutUiC/ lxetf fu.)) ned f6 'itle

'IA~+~tto'{) 1\1 ,u t~Pl1' /(fV7t::J fhul JJL1 irl rnv~-fti'Mneluo tJw_
/(efurt1ed 1 lhuJ ~ cf llted f\0-t bfl'Q J<. ~-- bu(M~ l\A-} lA-w tD be_
~tft.tJuJ ed.. M~. Svhn "')0{) V\ t:_ad ~ ~-t"aM~()b f>fLa.u~e thf_ 3ttme LMdt+(oY15 ~'~-r:5 LVv\d S-ee.K5 lJ..tdAtfl.L~~ lt\)une,~ve...

~

1
l

e F

Q<V\£1

ti-c_ Wf\ ~~ v\1..\fJ

it;' be_ h'A(' M e.d &lf t"h L~'{_ ?f't\e:.fcu5 ~

L.~+Abl~he.-J ltJndu.c-f hlf5

·i-M_! "llp
ftlld dtle5

\~~~~ rr\~()() ~cJA.\:5 'VitSt-lli\,AU\~\
hAIIt A- Lon\{nu\t'\6 \M.PAGT lntb ~L

.fUfuft find Lf1uu f'wu LJf W,,~ -1-rM e /5 ltlo'1 rYJPPT tblcl hAS

Ji> mtJ'Ir'on l/J1/) Ln.uA:·+-- hwt 'Ir1 Ju~L-\-tv-c z_, \cC Tni5 !eutA·'j
J+ h av/()b Jw.tVt£1 ?Asf fr u5 mo(J '{ 1h1d G tdt ()(_ '!... befv(t' dtrt-S
t~A-hJ,'HJl •+- hf\-s Kr1olAl\e_dte cl ~e ~LT'S %af £Jner1 mf.

LfDhf\~on WA'::> Z+WLpt:cl <..fc Wu N4AS 7r/svo S f~-t"eM fh~+
.fu J;J<.t'},·hnbd of fufuye UJ11a~..tlhtl hnduc-f 4h1 ...fhe /~5

7n'sor1 oM'CJAlS ~el LA)ouJd. tft-Ptru~. /Ut. JOhn~vn A-~K-.S

~' 1\t) EM exlenl/If ?ro+LchDtJ MdM- d1recl1'n6 7SJt;t) ?(i~o-ll cth'ti'AJ~ ~ ~A116t.. IAli~ur urYlue ba:.IAtl {;;e A KM/:>kf'

QF l+inA i6 A ?J/9-te oF' Jt?l!MurAtlot'1 lf)u-r~/Da LJr hfxAs..~

[/fh er- /n 14 f.ld erAJ IJJJ -AvlDfh t r- ,_S-t.<r·h:!.5 LlJ vrr t~tJi;tLaJ .S V~1--eM

{)>, ~ s-k1-'u.+ion .. I+e. doe. s 11of' h tlvP c.An adtJ&utlft- B.Wterltf1ft

Lb.t ih?d tin AJaAc! d' ~A6t-5 /JA AIY!tvt £J;ef'tJ,~J nof?roM

lttM , 7 f i's esf-'~h/l5h~d ~ /s A11 CILtua/ cb4n6eL of£-k(L

ViOlA---tion of +h'~ IG'bh/5 Ar\d this ~uc+ ;)hDu.\ti \co\(_ 1-\+-fiie.

'"1(}+-,q li4-tf c:>F 6r6..LM~:rh\r\U s ; And -Me-Jof ~ ~ut:..t::,t::,t\ob ~+

th-e_ \nWAc-hoC\S Mabht' r1ot- havt b-een A-n J<)o) M---e.dbllurence..

fs Uva11-f.
AN AlJ VIEJZ5E:cJurtf v'VLdtt+ £)f1 J)J4'rYh46'l:J -hre ?A~+
Londuc..-r JJoes ntrf' ?rttiRn..f WJi5 LtJL~A.-1' fft')nJ 6rAnktJ6 If~ ;n)u~
-And M %t~ Ln.ux+' K.?~~a~f\S cJufi'~ct\c\1on A-nd JhouJD}
'fssut- F4- b'f_t/4tve'l Judbt~n+ in fJIJ lhvo~ Suf'~MH116 l'f'~
~~~itDfl --16 id ?n:nl f UfVt ?v Ji'At tf' 'PrP-feLfloil u rd·IJ 1ft_ &11
.f:ne. rt ?r-o ~e.- ~ ?Jal'll+ WI be MPo;'11+-eLI ~Dt.ut~~J '-M heJP
?re_)e()+ ~f~ ~c.tua) h'Adlf\b5> h.,r A- ?r~ llMtl"\..tf'l inJunc-hb() ,1,./

{13)

· · · ·?rt) -h ·%a+ Case~7r:0n2-Fcv-00087-PMe-1B?F -D-~oLcturm;e.sndt 3.\8L0 'Foiileld 05/23/12 f2Pta+gae~1(4)o~f 4~1 uPtahgeID~3~32b3(t--tl/
To hf t1JJ hi::> &n1Pltllllf ltlhtlt.L ?VVnerJanf Ztlrtf 1M lhtzvu:l ~ ~lrbe:J M CL~ 3'L Mad f. f\A fl, J6 hr1 ~ Mc..lfv11) fo!C A-tJ
Q{tD-e.r {br A -w_MPor A-~'-1 £Ls-t'rA--fYlt aJLdell ~ A Yf-t)~ M\oat 'f .TnJunt.::\.-;bn I~ ?re vent' twa'( ftlr~er ~u r+err:nt Jl)r IrrtPArAble
~ ~d ::If)~ulttl due fo GY-t4 h.v..#utr£ .beJ.tlf ttli~vuf.­
thi~ Lou(t~ 7rcd~_ction I rvtN\t_a\Ate Li:;5s M-lJ~JJJa6e itJ ~.
Sohfl51J,Jj uf-'g w;\l 'i~~u.l-r:

-oDlti1CK KelttJ ~::Bunzm1"4-551:51 ~ a. ' f) fY'o .Y IJJa:ttt.!f:..
1lA-cK 1 uni-t-' d'foV 1Jill/14ce '?~J(U.
MAv~A, ·1JL 11&11&

flEC L-ARAT..IDIJ lJN.StJb"KrJ
* T 1 Koi)~t:i'lJZ KE.J:Ttt JbHtJ.Sol\l lt55qS<j bt>,'nb
rreStJ'\t'\ ~ rr1C..a:rCef /\ted ltti +he_ .YKK I l.Jt'11+ J the lEM'::> UePAA-M.ru\-r

b.f:: ti:M; rJAI ..J..r~+ke ~~ £Rt'rv\ t:.] feuni'i' , I'L dt_LL r\(e_ Ltnde_r ·~fl,qJ+'f

lff" re:Uu,-~ '\haT '"I_ ~t %e_ '?l:·tt~DI')eJ\. L71~1\~~ f(\ tfle_ Abt~ve_ And

tore_6o \n b ·pI ead•'n65 J h4Lfual A/Jt!_bAttDI15 t:JI

";L_
fh~

kSYivmL~

K'uul S11-ld -Ate_ !rut~

irn~df:~ftt>-tJ rAn.ti

'/1, e_

Ex~tufed 1JI1 f»,'s ft'le_ CJ-fo . da"' f.)C tldt9 'I ,201 z_

( 14-)

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 15 of 41 PageID 3324

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 16 of 41 PageID 3325
eighteen months, from September 2000 to April2002, Mr. Johnson was subjected to a
. ~ ·. "'
system of gang-run sexual slavery at the James V. Allred Unit in Iowa Park, Texas. Gang members routinely bought and sold Mr. Johnson as a chattel, raped and degraded him on a virtually daily basis, and threatened him with death if he resisted. Defendant prison officials at Allred were well aware of his plight, but refused to conduct any meaningful investigation of his complaints and refused his repeated pleas to be housed in safekeeping. They made clear by words and deeds that they took sadistic pleasure in his victimization. They repeatedly insisted that because he is Black, Mr. Johnson should either be able to fight off his attackers or else accept his sexual victimization. They also repeatedly expressed contempt for non-aggressive gay men, and made it explicit that it was their practice to refuse to protect such inmates from sexual assault, at least until such inmates were savagely beaten or "gutted." They reiterated to Mr. Johnson that he must "fight or f---." They also threatened Mr. Johnson with severe retaliation for revealing their misconduct and for seeking redress administratively and through the courts.
2. On information and belief, the Allred Defendants follow a custom and practice of denying safekeeping to vulnerable Black inmates even in cases of obvious need. =D€f"€Hdants,all=vf:whom-,=on-inf-ormation::and:helief,::are:w_hite~::are:::far::less likelY=ID=grant safekeeping to Black inmates than to other similarly situated inmates. Defendants improperly considered Mr. Johnson's race in denying him safekeeping. In addition, on information and belief, Defendants follow a custom and practice of denying safekeeping to non-aggressive, gay men in need of protection.
3. Defendant Gary Johnson, Executive Director of the Texas Department of Criminal Justice, was aware of the misconduct of the Defendants at Allred, and the injury
2

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 17 of 41 PageID 3326

and danger to which they subjected Mr. Johnson, but failed to take timely and adequate remedial measures.
4. Mr. Johnson sues the Defencfants in their official and individual capacities. 5. Mr. Johnson seeks permanent and preliminary injunctive relief, declaratory relief, and damages for the physical injuries, excruciating emotional pain, intense degradation and humiliation, and lasting psychic trauma caused by Defendants' acts and omissions.
JURISDICTION 6. This Court has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1331, and pursuant to 28 U.S.C. § 1343(a)(3) and (a)(4).

VENUE

7. Venue in this District is proper as to all Defendants pursuant to 28 U.S.C. §

1391(a)(2) and (b)(2) because the events giving rise to the claims occurred within this

district.

PARTIES

8. Plaintiff Roderick Johnson is a citizen of Texas currently incarcerated as a

sentenced prisoner at the Michael Unit in Tennessee Colony, Texas. From September 2000

to April 2002 he was incarcerated at the Allred Unit in Iowa Park, Texas.

9. Defendant Gary Johnson is the Executive Director of the Texas Department

of Criminal Justice (''TDCJ"). He has ultimate responsibility within the Department for

overseeing the operations of state prison facilities and ensuring prison officials' adherence

to federal and state law and official TDCJ policy.

10. Defendant Robert R. Treon is the Senior Warden of the Allred Unit. He is

responsible for the daily operations of Allred.

3

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 18 of 41 PageID 3327
11. Defendant Richard E. Wathen is the Assistant Warden for General Population at Allred.
12. Defendant James D. Mooneyham is an assistanl warden at Allred. 13. Defendant Norwood is a major at Allred. 14. Defendant Bright is a major at Allred. 15. Defendant Boyle is a captain at Allred. 16. Defendant Bowman is a major at Allred. 17. Defendant Willingham is a sergeant at Allred. 18. Defendant Paul is a lieutenant at Allred. 19. Defendant Rangel is a lieutenant at Allred. 20. Defendant Taylor is a lieutenant at Allred. 21. Defendant Vikki D. Wright is the Director of Classification at Allred. 22. Defendant Kuyava is an administrative technician for the Unit Classification Committee at Allred. 23. Defendant Vitolo is an administrative technician for the Unit Classification Committee at Allred. ----------=1-4~-==t}e:fendant.s-Jehn-b>et}:Qn~l:m=Doe::'f--w-o,-Jomt::Doe-Ihree~_lohn:D_o:e:_F_oJJE. _______________ _ and John Doe Five are employees at Allred who have served on one or more of the Unit Classification Committees that denied Mr. Johnson's requests for safekeeping. 25. At all relevant times, all Defendants acted under color of state law, and all individual Defendants were acting within the scope of their employment.

..-------------------
Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 19 of 41 PageID 3328

.-

EXHAUSTION

26. Mr. Johnson has exhausted such administrative remedies as were available to

him. Mr. Johnson's Step 2 grievance form is attached.

PREVIOUS LAWSUITS

27. Mr. Johnson has never previously filed any lawsuits in state or federal court

relating to his imprisonment.

STATEMENT OF FACTS

28. Roderick Johnson, a homosexual with no history of violence and very little

prison experience, came into the custody of the Texas Department of Criminal Justice in

early January 2000. He was sent to the Diagnostic Unit at Gurney and then to Huntsville

for processing and classification. Mr. Johnson informed prison officials at both institutions

that he was gay. Because his background and characteristics made him a likely target for sexual victimization, prison officials in Huntsville appropriately housed him in safekeeping. A State Classification Unit member assured him he would remain in safekeeping when he

was transferred to Allred. 29. At Allred, a Unit Classification Committee ("UCC"), consisting of three or
-moreofficials;:::makes:decisions--onwhetherinmates-:require.safekeeping.DefendanHL. Wathen, Mooneyham, Norwood, Kuyava, Vitolo, Boyle, Bowman, Rangel, and Taylor all

served on the UCC at Allred at various times relevant to this Complaint.

30. The Texas Department of Criminal Justice defines safekeeping in its Safe

Prisons Program as "a status that permits the unit/facility to house vulnerable individuals.

and other potential victims together, separate from more aggressive offenders.... Safekeeping status is reserved for those offenders who require separate housing in the

5

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 20 of 41 PageID 3329
general population because of substantiated threats to their safety due to a potential for victimization, (i.e., enemies in the offender population, a history of homosexual behavior, or other similar reasons.)"
31. Mr. Johnson met and meets the criteria for placement in safekeeping status. 32. Defendants have known for years of the pervasive and substantial risk of sexual assault at Allred. They were also aware that Mr. Johnson was vulnerable to sexual victimization. Nevertheless, they failed to take reasonable measures to prevent him from being victimized. 33. In September 2000, when Mr. Johnson arrived at Allred, a Unit Classification Committee that included Defendant Major Bright held an initial classification review. Mr. Johnson explained to the UCC that he had been placed in safekeeping at Huntsville because he is gay, and that a State Classification Officer had told him that he would remain in safekeeping at Allred. Defendant Bright responded, "We don't protect punks on this farm." 34. At the initial classification hearing at Allred, the Defendants placed Mr. Johnson in the general population on Building 8. 35 Predatory inmates rape.:d:MrJofinson-a:Imost=in:nm:di=at-e:l:F 36. These inmates gave Mr. Johnson the name "Coco," thereby designating him as an inmate available for sexual exploitation. The Defendants also adopted the name, addressing Mr. Johnson only as "Coco" and referring to Mr. Johnson as "she" and "her." 37. Prison gang members in general population soon asserted ownership of Mr. Johnson. The Gangster Disciple gang was the first to officially "own" him.
6

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 21 of 41 PageID 3330
38. In early October 2000, a Gangster Disciple, Andrew Hernandez, forced Mr. Johnson into his cell and raped him. Afterwards, other gang members congratulated Hernandez for his conquest of Mr. Johnson.
39. Mr. Johnson informed Defendant Sergeant Willingham and Defendant Assistant Warden Mooneyham that he had been raped and that he feared for his life. He asked for medical attention. They refused, stating that immediate medical care was available only in cases of emergency.
40. On information and belief, Defendants Willingham and Mooneyham did not investigate or report Mr. Jolmson's complaint and did nothing to protect him from future harm.
41. After Mr. Johnson reported the rape to Defendants Willingham and Mooneyham, Hernandez continued to rape and sexually abuse Mr. Johnson every day until mid-November, 2000. Hernandez also forced Mr. Johnson to clean his cell, make his bed, and cook his food. Hernandez told Mr. Johnson that ifhe did not submit, Hernandez would have him killed.
42. In mid-November 2000, Hernandez began sharing Mr. Johnson with his
members badly beat another sex slave they called ..Buttons" for refusing to submit to forced sex. Hernandez made it clear to Mr. Johnson that the same would happen to him if he resisted his role as a sex slave.
43. In December 2000, Hernandez stole Mr. Jolmson's radio, fan, shoes, and S30 in commissary from his cell. Mr. Johnson reported this theft to Defendant Willingham and Officer Lott, who laughed and insinuated that he should go get his property back by himself.
7

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 22 of 41 PageID 3331
When Mr. Johnson asked Hernandez to return the property, Hernandez assaulted him, bruising his face. Mr. Johnson was treated in the medical department and placed in segregation in Building 11 for nine days alongside his attacker.
a 44. As a result ofthis attack, Defendant Willingham signed off on "life
endangern1ent" claim requesting safekeeping for Mr. Johnson. Mr. Johnson then appeared before a Unit Classification Committee to explain his need for safekeeping. The Unit
Classification Com~ittee consisted of Defendants Mooneyham, Vitolo, and John Doe One.
Defendant Vitolo noted the recent attack and pointed out that, given Mr. Johnson's characteristics, he should have been placed on safekeeping when he arrived at Allred. Defendant Mooneyham replied that initial classification mistakes are not the concern of the present UCC. Ignoring the obvious risk of serious harm, the UCC denied Mr. Johnson's request for safekeeping and sent him back to general population.
45. After denying him safekeeping, Defendant Mooneyham handed Mr. Johnson a folded document and told him to sign it. Mr. Johnson asked Defendant Mooneyham what the paper was. Mooneyham replied, "It's a waiver s~ying that we're moving you to another pod and this will solve the problem." Believing he was signing routine paperwork, Mr. Johnson com_.plied vd:th:DefendantMooneyham~ or:det. =At=a:ntimber=ef-s-ubseqt:Ient=l+fe endangerment hearings at Allred, UCC members directed Mr. Johnson to sign a similar document. Defendants never allowed Mr. Johnson to read these forms.
46. Before being moved back to Building 8 by the UCC, Mr. Johnson received a letter from Marty Smith, a member of the Bloods gang, indicating that Smith had "bought" Johnson from the Gangster Disciples and would be waiting for Johnson to return to Building 8. After nine days in Building 11, prison officials returned Mr. Johnson to Building 8.
8

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 23 of 41 PageID 3332
47. As soon as Defendants Mooneyham, Vitolo and John Doe One returned Mr. Johnson to Building 8, Marty Smith began treating Mr. Johnson as his sexual slave. At first, only Smith raped Mr. Johnson. Soon, however, Smith began forcibly selling Mr. Johnson to other inmates.
48. In January 2001, desperate for help, Mr. Johnson wrote the first of several letters to Defendant Wright, the Director of Classification, explaining that other inmates were sexually attacking him, and asking for safekeeping. Defendant Wright ignored the letters.
49. In mid-January 2001, three inmates in the "Crips" gang assaulted Mr. Johnson in the back stairwell in Building 8. They called him a "renegade" for not obeying their orders. Mr. Johnson reported the attack to Sergeant Matthews. Sergeant Matthews refused to report the attack and took no other steps to investigate the complaint or to protect Mr. Johnson from further injury.
50. Mr. Johnson also sought help from the Allred Unit's Security Threat Group. The Security Threat Group investigates gang problems on the unit. Mr. Johnson notified Sergeant Steagle and Officer Canaido of the Security Threat Group about his problems with the gangs and the sexual-aUaek~=tffitt he-was foreed=to endure;- They toek no action.
51. On February 4, 2001, Mr. Johnson again wrote to Defendant Wright, requesting safekeeping and pleading for protection from sexual assault by other inmates.
52. Mr. Johnson appeared before the UCC again in mid-February 2001. Defendants Bowman, Kuyava, and Boyle comprised the committee. Defendant Kuyava told Mr. Johnson, "You need to get down there and fight or get you a man."
9

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 24 of 41 PageID 3333
53. The UCC denied Mr. Johnson safekeeping again, saying that they would move him from L Pod to J Pod in Building 8. Mr. Johnson begged them to reconsider because merely moving'-him to a different housing pod in general population would provide no protection from the gangs. Defendant Bowman responded that they would tie him up and drag him back to his cell if he refused to return to Building 8.
54. On February 14, 2001, Mr. Johnson again wrote to Defendant Wright telling her about the forced sex acts and requesting safekeeping yet again. At this time, members of the Bloods, the Crips, and the Mexican Mafia were all sexually assaulting Mr. Johnson.
55. Another UCC was convened, consisting of Defendants Wathen, Vitolo, and John Doe Two. During this hearing, Defendant Wathen said that he did not believe Mr. Johnson because the Crips are a Black gang and a Black gang would not allow a Mexican to enslave an African-American. He told Mr. Johnson, "You need to start fighting." Mr. Johnson asked ifhe was required to fight to save himself. Defendant Wathen replied, "I don't care if you fight as long as you don't use a weapon. There's no reason why Black punks can't fight and survive in general population if they don't want to f---." The UCC again denied Mr. Johnson safekeeping.
56 In late Febm~OOl, Mr. Johnson \¥€nt befure::a:llnit£las5ifi:eat;ion= Committee for a classification review hearing. The UCC gave Mr. Johnson a minimum custody status and moved him to general population in Building 7.
57. Gang activity was rampant in Building 7. Inmates who were young, handicapped, homosexual, or perceived as weak were quickly preyed upon by gang members. On information and belief, Defendants were well aware of this situation.
lO

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 25 of 41 PageID 3334
58. Marty Smith, who was transferred to Building 7 shortly after Mr. Johnson's transfer to Building 7, immediately reasserted his "ownership" of Mr. Johnson, forcibly hiring him out to other gang members as a sexual slave.
59. On February 25, 2001, Mr. Johnson filed a Step 1 grievance requesting safekeeping status. He received no reply.
60. On March 15, 2001, Mr. Johnson received an anonymous letter or "kite" from another inmate telling him that he would be dead once the unit was off lockdown because he was a snitch.
61. On March 16, 2001, Mr. Johnson went before a Unit Classification Committee for his fourth life endangerment hearing. The Committee was composed of Defendants Wathen, Kuyava, and John Doe Three. Defendant Wathen told Mr. Johnson that Mr. Johnson needed to fight his attackers. Defendant Kuyava told him, "Bring bruises or stay out of my face."
62. On March 18, 2001, Mr. Johnson filed another Step 1 grievance describing the sexual assaults and harassment and requesting safekeeping due to threats on his life.
63. On April 9, 2001, Mr. Johnson received a reply to his February 25, 2001
grievance with stock language stating that the UCC had reviewed his case an March 16, .
2001 and denied his request for a transfer, safekeeping, or protective custody due to insufficient evidence.
64. On April 17, 2001, Mr. Johnson filed a timely Step 2 grievance detailing the efforts he had made to seek protection from rape and sexual assault. He provided prison officials with the name of inmate Marty Smith.
. ·.
11

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 26 of 41 PageID 3335

.. ....

65. On May 4, 2001, Mr. Johnson received a reply to the Step 2 grievance

indicating in the same stock language that his case had been investigated and that there was -
no evidence to support his claim of life endangerment.

66. Throughout this period, Mr. Johnson was routinely forced to endure sexual

assault and rape by multiple gang members. He became increasingly hopeless and suicidal.

67. At the end of July 2001, Mr. Johnson went before the UCC for another

procedural reclassification. He was assigned a job as a unit supply clerk and moved to a dormitory in Building 18.

68. Gang member Marty Smith, taking advantage of lax security at Allred,

frequently left his own building and came to Building 18 to harass, threaten, and sexually assault Mr. Johnson.

69. In late July 2001, Mr. Johnson again reported the threats and assaults to

Sergeant Matthews. Sergeant Matthews filed a life endangerment claim on Mr. Johnson's behalf.

70. In early August 2001, Mr. Johnson appeared before the Unit Classification

Committee on his fifth life endangerment claim. The UCC on this occasion was composed ofD~ndantS:::Wathen aruUohn:Doesi<:euL:and E:v:e:::Def:endant:::Wathen told-:Mh=Jolu=Isot+ that Building 18 was entirely safe. On information and belief, Defendants were well aware

that this was untrue. The Defendants denied him safekeeping.

71. Soon after Mr. Johnson was transferred to Building 18, the Tangos gang in

Unit 18 targeted him for sexual victimization. A Tangos gang member named Eric Charb~eau began threatening Mr. Johnson with violence unless he submitted to sex. The

Crips and the Mandingo Warriors also began demanding sex from Mr. Johnson.

12

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 27 of 41 PageID 3336

. ·

72. Starting in August 2001 and continuing for five months to December 2001,

the Tangos gang raped and prostituted Mr. Johnson. Only Tangos gang members were

allowed to use Mr. Johnson's body during this time. During this period, Mr. JoJ:mson fell

into deep despair and hopelessness. He frequently considered suicide.

73. On December 1, 2001, the Tangos gang ordered Mr. Johnson to perform oral

sex on an inmate in 18R dormitory. Sergeant Barnett found Mr. Johnson in this inmate's

room and issued a disciplinary report against Mr. Johnson for being in another inmate's

dormitory without authorization. As a result, Mr. Johnson lost recreation and commissary

for 45 days.

74. On December 5, 2001, Mr. Johnson filed another Step 1 grievance requesting

safekeeping and protection from forced sexual activity. He informed staff that the

disciplinary violation on December 1, 2001, was the result of forced sexual activity by the

gangs.

75. On December 5 and December 30, 2001, and January 16, 2002, desperate for

help, Mr. Johnson wrote letters to the Senior Warden, Defendant Treon, pleading for

protection. Mr. Johnson received no response to any of these letters. Mr. Johnson also

.. _wrote tg Pefen<lalll Gary Johnson, the Executive.DirootocofTDCJ.. and to the Chairman of

the State Classification Committee, explaining the situation and pleading for safekeeping.

76. On December 13, 2001, Mr. Johnson went before the Unit Classification

Committee for his sixth life endangerment claim. Prior to the hearing, an inmate named

Gilstrap, a member of the Mandingo Warriors gang, forced Mr. Johnson to put makeup on

his face to attend the hearing. The Committee for this life endangerment claim consisted of

Defendants Bowman, Kuyava, and Rangel. When Mr. Johnson entered the hearing room.

13

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 28 of 41 PageID 3337
Defendant Rangel laughed derisively and told Mr. Johnson to remove the makeup. Defendant Bowman told Mr. Johnson, "If you want to be a ho, you'll be treated like a ho,"
-
and "Get a man." Defendant Rangel remarked, "Preferably a Black one, since it's the Bloods you're having problems with."
77. Defendant Kuyava added, "You ain't nothing but a dirty tramp," and "Leam to fight or accept the f---ing."
78. Defendant Kuyava concluded the hearing by insisting that the record reflect that Mr. Johnson was wearing makeup. She then stated, "Ms. Pretty is going to a good place now." The Defendants had Mr. Johnson transferred from Building 18 to Building 7, the most heavily gang-infested building at Allred.
79. Upon information and belief, Defendants Bowman, Kuyava, and Rangel knew of the severe gang problem at Building 7 and the substantial risk that serious hann would befall Mr. Johnson at Building 7.
80. During his first week on Building 7, a member of the Crips gang forced Mr. Johnson to perform oral sex on him. The Tangos gang objected to this "disrespect" of their property and demanded $60 commissary in payment from the Crips. Thereafter, members ==o:f:the::M:exi:can Maiiartl:n:=u:mst=pewm:ful=gang-on=Buitding=t-;approaChed MF.Johrison<Ill·d told him that he must "ride or die," meaning that only by accepting sexual slavery with one gang could he avoid being killed.
81. The gangs began fighting over who owned Mr. Johnson, and Mr. Johnson was told that he must attend a gang meeting in the recreation yard where he would be forcr:J to choose whic;h gang would own him.
14

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 29 of 41 PageID 3338
82. On December 30, 2001, Mr. Johnson filed another Step 1 grievance requesting safekeeping. He informed staff that day that he intended to break the disciplinary rules in order to get sent to segregation and thus escape the gangs.
83. On December 31, 2001, Mr. Johnson intentionally incurred a major disciplinary violation in an effort to avoid the choice between death and continued sexual servitude. He went to the recreation yard when not allowed to do so and intentionally gave an incorrect answer when a correctional officer asked him for his room number.
84. On or about January 9, 2002, Mr. Johnson had a hearing on his disciplinary report before Captain Hargrove. Mr. Johnson told Hargrove about being forced into sexual slavery at Allred and informed him that he had intentionally gotten a disciplinary case in order to protect himself. Captain Hargrove laughed and told Johnson that he would strip him of everything. Captain Hargrove proceeded to give Mr. Johnson the maximum
allowable punishment. Mr. Johnson received restrictions on recreation, commissary, and
property, as well as custody in a special cell restraint for 45 days. His classification dropped to a line 3, which will require him to remain in prison for more than two years past the date he otherwise would have been eligible for release. ····- ----85-; Mr-;]ohnsoo was-alsese~tence4-to l:Sdays:insolit.aty=co:nfinemenLThis __ _ fifteen days in punitive segregation was the first and only protection that Mr. Johnson ever received at Allred.
86. On January 17, 2002, Johnson went before the UCC on his seventh life endangerment claim. The Committee consisted of Defendants Vitolo, Norwood, and Taylor. After Mr. Johnson pleaded his case, Defendant Norwood told him that Johnson probably consented to the sex acts because "I personally believe you like d---." All the
15

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 30 of 41 PageID 3339
defendants laughed at this comment. Defendant Norwood told Mr. Johnson, "You like this
. __ ._.,
s--- ...I'm convinced you are with this gang. I don't think you need no safekeeping. You need to be placed on high security where you don't have anything but one cellie and then you can get f---ed all the time." Defendant Taylor then said Mr. Johnson should be on medium custody in general population and that he should just "learn to f--- or fight."
87. Mr. Johnson started sobbing, screaming, and pleading with the Defendants not to send him back to general population. They laughed. Two officers then grabbed Mr. Johnson and dragged him out kicking and screaming for help.
88. The next day, prison officials issued a written denial of Mr. Johnson's December 30, 2001 grievance due to insufficient evidence. In response, on January 23, 2002, Mr. Johnson filed a timely Step 2 grievance. This grievance described the measures that he had taken to ensure his safety, and informed prison officials about the ongoing sexual harassment and assault that he was enduring at Allred. Once again, he pled for safekeeping.
89. The final reply to Mr. Johnson's Step 2 grievance, dated February 7, 2002, stated in the same stock language that his complaint had been investigated but no evidence showeifthatirirli.fe-Was in danger.
90. Once prison officials released Mr. Johnson from solitary confinement and placed him on special cell restraint in Building 8, Black and Hispanic gangs on the unit foughtover him. Each claimed he was their property.
91. Mr. Johnson received several threatening letters from inmate gang members addressing him as "Coco." Some of the letters threatened physical and sexual violence;
16

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 31 of 41 PageID 3340
others warned that he had been "pegged" as a snitch and that he might as well "do as you are told." One letter offered to buy him.
92. Desperate to get help before he was off cell restriction and back in general population, Mr. Johnson began writing to the ACLU and other outside organizations for assistance. His family also attempted to advocate on his behalf. On February 11, 2002, his grandmother sent a life endangerment claim to the TDCJ Ombudsman. On March 7, 2002, the Ombudsman's office replied that they had investigated the claim and found no support for it.
93. On February 22, 2002, officials returned Mr. Johnson to general population in Building 8. That night, gang members assaulted Mr. Johnson and forced him to perform sexacts with other inmates. The attacks continued the next day. In despair, Mr. Johnson did not report either attack.
94. On February 24, 2002, the Mexican Mafia claimed definitive ownership over Mr. Johnson. That same day, the gang sold him to another inmate who forced him to perform oral sex.
95. While the Mexican Mafia owned Mr. Johnson, the sexual assaults and exploitation escalated dramatically. The gang sold himJo scores ofother inmates.
96. Gang leaders in Building 8 negotiated with gang leaders in Building 7 for a fee of$5 to $10 in commissary for Mr. Johnson's sexual services. Gang leaders controlled his life and his body. They told him to whom he had been sold and what he must do for that inmate. They told him that if he refused he would be beaten or killed. As a sexual slave, he was repeatedly penetrated anally and forced to perform oral sex at the command of gang members.
17

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 32 of 41 PageID 3341
97. On or around February 27, 2002, another Mexican gang bought Mr. Johnson';; sexual services for a week. He was forced to perform sex acts on eight inmates in the stairwell, in the shower~ and in his cell.
98. On March 10, 2002, a white inmate called MJ came to Mr. Johnson's cell. MJ said that the Mexican Mafia sent him and told Mr. Johnson, "I already paid them, I don't want to f--- you, just suck my d---."
99. While MJ was demanding sex from Mr. Johnson, Sergeant Thomas discovered MJ in Mr. Johnson's cell and took MJ back to his assigned cell. Sergeant Thomas told Mr. Johnson, "I don't care how you make your money, but I'm not tolerating prostitution on this -car...and tell your pimp he'd better comply." Sergeant Thomas did not issue a disciplinary report against MJ. MJ came back to Mr. Johnson's cell to "finish up" on Monday, March 11,2002.
100. On March 13, 2002, on or around 12:30 am, an officer unlocked the door to Mr. Johnson's cell, allowing an inmate named JD to enter. JD told Mr. Johnson, "Some Mexican on 7 building sent me over. You know what it is." When Mr. Johnson balked at "'his request, JD told Mr. Johnson that he had already paid for Mr. Johnson's services. JD -------rorced .Mr.1ohnson to perform oral sex.
101. On or about Marclt 15, 2002, a white gang leader masturbated on Mr. Johnson in the shower. The showers were completely unguarded, and this type of humiliating assault became commonplace for Mr. Johnson. From the time Mr. Johnson was returned from cell restriction to general population on February 22, 2002, inmate gang members masturbated on him in the shower a minimum of 30 times. He could not take a shower without other inmates masturbating on him.
18

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 33 of 41 PageID 3342
102. On March 17,2002, around 10:30 am, a Mexican Mafia inmate called "Monster" approached Mr. Johnson in the dayroom and told him that he must go to the showers~ When Mr. Johnson arrived, eight or nine other inmates were in the showers. Gang members also forced a mentally ill inmate, named Alazar, to the showers. The gang members then surrounded Mr. Johnson and Alazar and repeatedly forced Alazar to stick his finger in Mr. Johnson's anus and lick it. Gang members then forced Alazar and Johnson to simultaneously masturbate each other.
103. Despite the multitude of horrors he had already experienced at Allred, the surrealistic and nightmarish nature of this "show" stunned Mr. Johnson. The gang members tried to force him to perform oral and anal sex with Alazar, but he refused. He was only spared this further degradation because the other inmates relented when called to a meal. However, gang members pushed Mr. Johnson down the back stairwell as punishment for refusing to comply with the gang's order.
104. Immediately after this incident, Alazar ran to Defendant Lieutenant Paul in the dayroom to beg for help. Alazar was hysterical, but Defendant Paul refused to help him and ordered him to go away. Alazar then tackled the lieutenant and was hauled away on a :disciplinar;y charge. When Mr3_ohnson saw Defendant Paul after themeal~ 1he lieu1enant told him that he had better not act like Alazar or he would be "carried off the unit in a body bag."
105. On March 23, 2002, Mr. Johnson returned from church to find a white inmate named Kevin in his cell. Kevin told Mr. Johnson that he had already paid for his services, and "I don't want to lose my money." Kevin then forced Mr. Johnson to perfom1 oral sex.
19

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 34 of 41 PageID 3343
106. On March 27,2002, Defendant Bowman interrupted an attorney-client telephone call between Mr. Johnson and lawyers from the National Prison Project of the American Civil Liberties Union. Defendant Bowman ordered Mr. Johnson to get off the phone, and Mr. Johnson was taken into a meeting in Defendant Boyle's office.
107. Defendant Boyle told Mr. Johnson that there was no concrete evidence to support his life endangerment claim and that since he had not been stabbed or "gutted," prison officials would not place him in safekeeping. Defendant Boyle then coerced Mr. Johnson into signing a form waiving his life endangerment claims, threatening that unless he did so, "we are really going to f--- you over." That same day, Mr. Johnson filed a grievance about the coercion.
108. On March 28, 2002, the ACLU sent a letter to Defendant Gary Johnson regarding Mr. Johnson's situation and requesting that he have Mr. Johnson placed immediately in safekeeping in order to prevent further irreparable injury.
109. On March 29, 2002, after receiving a copy of the ACLU's letter to Defendant Gary Johnson, Defendant Major Bowman called Mr. Johnson into a meeting and told him that "the ACLU don't runs---" and that Mr. Johnson needs "to have his a-- kicked." At the same meeting, Defendant Warden Treon said, "the ACLU don't run my damn classificatiOn unit" and that Mr. Johnson "better not say [he] was coerced into s---." Finally, Defendant Treon threatened Mr. Johnson, "With your classification, I can send you to a terrible place.··
110. On April1, 2002, Mr. Johnson again went before the UCC. During the hearing, Defendant Wathen told Mr. Johnson, "Right now, we're recommending-to transfer you, and you're going to see a 'good friend' of ours on another unit." Defendant Wathen
20

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 35 of 41 PageID 3344
then told Mr. Johnson that he would not be placed on safekeeping at this new unit because, he, Wathen, was recommending against it.
111. On April 5, 2002, Defendant Gary Johnson notified the ACLU that ··due to his demeanor and orientation," Mr. Johnson would be transferred from Allred and placed in safekeeping.
112. On or about April10, 2002, more than 18 months after he first requested safekeeping and after repeatedly requesting such protection due to being sexually assaulted hundreds of times, Mr. Johnson was transferred to the Michael Unit and placed in safekeeping.
113. On April10, 2002, at Mr. Johnson's initial classification hearing at the Michael Unit, a UCC member, Major Fox, announced that an acquaintance of his at Alllred had put a note in Mr. Johnson's file stating that Mr. Johnson is a manipulator who makes false complaints. Major Fox indicated that based on this note he considers Mr. Johnson to be a troublemaker, and that if Johnson ever makes any trouble at Michael Unit he, Major Fox, will make sure that Mr. Johnson is placed in close custody.
114. Because ofhis past sexual enslavement by gangs, and because gang members
··- --baveoranded him.-a.s·a..snitch,''Mr.-JohnsmTfacesasubstanttal-nsk of-further-sexuat-··
assault, brutal beating, and even death, if he is returned to general population. Mr. Johnson remains in constant fear that prison officials will follow through with their threats to have him returned to general population in retaliation for petitioning for redress of his grievances administratively and through the courts.
115. Because he was sexually assaulted hundreds of times at Allred without any means of protection, Mr. Johnson lives in constant dread that he may have contracted HIY
21

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 36 of 41 PageID 3345

or hepatitis. Defendants have never offered him appropriate medical treatment, psychiatric

care, or counseling for the physical and psychic trauma resulting from these sexual assaults.

116. Defendants never ordered that any rape kits be taken or conducted any

meaningful investigation of Mr. Johnson's multiple claims that he was being sexually

assaulted and enslaved. 117. On information and belief, Defendants have never imposed any significant

discipline on any of Mr. Johnson's assailants for sexually abusing and enslaving him, and

have never sought prosecution of Mr. Johnson's assailants.

118. On information and belief, TDCJ has never disciplined the Defendants for

their failure to protect Mr. Johnson from sexual abuse and enslavement.

119. As a direct result of the Defendants' acts and omissions, Mr. Johnson has

suffered physical injuries, intense degradation and humiliation, excruciating emotional pain,

and lasting psychic trauma.

CAUSES OF ACTION

120. With respect to each of the following claims, Defendants engaged in conduct

with malice and reckless or callous indifference to the constitutional and statutory rights of

Mr. Johnson.

First Claim for Relief Eighth Amendment

121. Defendants knew they had a legal obligation to protect Mr. Johnson from

assault and sexual attack, and knew that their actions and omissions created a substantial

risk of serious injury to Mr. Johnson. With deliberate indifference to Mr. Johnson's

personal safety, Defendants failed to protect him from substantial risk of serious harm, in

22

. '
Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 37 of 41 PageID 3346

violation of his rights under the Eighth and Fourteenth Amendments to the United States

Constitution, and 42 U.S.C. § 1983. 122. The deprivations of Mr. Johnson's rights described herein constitute a risk of

harm so grave that it violated contemporary standards of decency.

Second Claim for Relief Equal Protection --Racial Discrimination

123. In applying prison policies, practices and procedures to deny Mr. Johnson

protection from sexual victimization, Defendants intentionally treated Mr. Johnson

differently than other similarly situated inmates on account of his race, and motivated by

racial animus deprived him ofthe equal protection of the laws, in violation of his rights

under Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.

Third Claim for Relief Equal Protection - Sexual Orientation
124. In applying prison policies, practices and procedures to deny Mr. Johnson

protection from sexual victimization, Defendants subjected Mr. Johnson to an irrational and

arbitrary classification based on his sexual orientation, and treated him differently than other

similarly situated inmates based on their hostility and animus towards non-aggressive gay men,therebydenymg himihe-equal protectton-ot-the-laws, in violatioo-ofllis ri:gffts amkr

--~ ·· ---

Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.

RELIEF REQUESTED

WHEREFORE, Plaintiff requests the following relief from this Court: 1. A declaratory judgment that the policies, practices, acts and omissions

complained of herein violated Plaintiffs rights; 2. A permanent injunction directing the Defendants to do the following:

23

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 38 of 41 PageID 3347
A. Maintain the Plaintiff in safekeeping status so long as he remains in TDCJ custody;
B. Expunge the disciplinary violations on Plaintiff's record caused by Defendants' failure to protect Plaintiff;
C. Offer the Plaintiff appropriate medical and psychiatric treatment and counseling for the physical and psychic injury he has suffered as a result of their acts and omissions;
3. Compensatory damages against each Defendant, jointly and severally; 4. Punitive damages against each Defendant, jointly and severally; 5. Retention ofjurisdiction over Defendants until such time that the Court is satisfied that defendants' unlawful policies, practices, acts and omissions no longer exist and will not recur; 6. Reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988; and 7. Such further relief as the Court may deem just and proper.
24

Case 7..,.:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 39 of 41 PageID 3348

.;~~ - ~Texas Department of Criminal Justice

STEP2 OFFENDER GRIEVANCE FORM

Forma Para Quejas de los Preso

, Offender Name: _LJ.~:::::k:lo~l---...L..I--~'-!..J.()::.:...:::~::....:..n...:..._ TDCJ # G z.-~o;.z. ~

Unit: .._J ~~

d-llt..ed

q - Housing Assignment:

1<.- Jt T

-:t:u/d Unit where incident occurred: Ji.//Reti t/41-l,

~t Ti{

OFFICE USE ONLY
Para Uso De La Oficiana Solamente
2 GUGriIevRaencc'de#D: a~te;; ~~f~f=~- ~e~~~
HQ Rec'd Date. .,--,--..,.______
Date Due: .3-}-2);1
Grievance Code: 0 0 / D
Investigator Number: _ _£0;). 5"{"

0 EM 0 ADA

0 UOF 0 REL

0 MED 0 SSI

Give reason for appeal (Be specific). I am dissatisfied with the response at Step 1 because...

:r:; ~M$xJteGe.•l-1.C_ bhc~)"TLMc~..~:::.

"!i:.te"f
~f\~t:i--

k

~._.. " •" U'.. "'"' 1\., u.n;\-
'*:cu.,J..:pd ·2,e taus;.<' 1:. OOC\.

§).,,_~~~ 0 \k.J- -- -
di1::.0i)ti$.\k,L Mh

flu {jot"f 1.--ttkL ./{e.~Je , Z .ba tie. Selli.f {;?) ?Lt"·..e be1c !/4nLe ~ oncl

;JumfS1/;I.t~ ileo<\;."'1·~ '+o L&a I lM\~t GJ!1~~Qud-\oA llol\\&.-+:6?"- VuLe c k~ Q•\C\ o)~

f\- ( e.ti:e,, <-k,, <M~ Uo,r {titttcct!,.//ZM~tt I
aod a/J<; Aa~ . 0(2~ kiM:_ ll-/lt'o//5-

Yt: ,a;

e

N) cA./ $4.< ;

12
?;s-

f-t~s&--/"l''(C1 ~, o2.'-y3

o

-ot Wuz.,

p~,,~lflll .Jt,;;/ed td vlie 'rh.o .k G.ri e.U An~ e. (! L houe ~.Q :X:> w(~s.·h' IWy

tnu~h/ (11\d hod ill~m ftJ J-j?e'~,G v0 ~ t:Hh~ Adm~JLJb:•a/:c,J-+---

jfjd:Js/ !¥--- CU:ui-1 r!hf
?v~kt~d ~

pa61em[
~·li~ IUj

~ o# f.M~j ?lor/; I &"/ddf ;/d'm~:?s/rd.fsd.__~
D4Mdy &"'~ U'::>~W dr\~~e.r. "L ba~e... b.~.(h\L:,n_t_·~d t~,<....

7i¥j iuJ;f
)t.,fttft?d

/??·Jk~.
~I

~I ds JJ;U4~~rn~.~+

~W:CuLt~l"C.-"z_Xl/Ullaf;_·f~bc.~~fi/cj:4fut1.7f:ir__:L..}.(~_ _~_~_

1b,-::. 1.. >-n·, ~ \4 il5:. i) C.C~ s--;. \-o t\

''l'

\

·.,

1 · I - ~ ~it:. ,/,-'- tftJ-.0

I)A/ lMJ.S L/,z;f: Lhzdb, ~ ?/4Z-t4d Jh ~~J dwzfzluztc ttL L ,~.) _ __

1/!:::ufm~:t:;_

1,_~~::=~/ <

~

~,4-~:_

~w~~~:,_i~.~;·~

ee.

ate

Jc,.J

U-~(. ··-

~j~c:-&r hht?· ·,,...

./ '/ ?1!&'76c ID)IJ c2£ We i2ll4 ;~,-cd"s.s

''

Case 7:02-cv-00087-M-BF Document 380 Filed 05/23/12 Page 40 of 41 PageID 3349

PASOl

. Forma Para Quejas de los Preso

Offender Name: 1odR.f• C J( K• . Jbh 0 Sbn IDCJ 1. U J. 3o 2 B'

Unit: LJom~.s /liiZod

Housing Assignment: g.,. L- 2.2. T

Unit where incident occurred: 'Jt1m§s 4//LU_'_f,f__ .. --?- ·-·-.-

OFFICE USE ONLY

Para Uso De La Ofic:iana Solamente

Grievance #: dCUl!l4 ~3 2 .
Date Received: FEB 2 6 2001

Date Due:

· APR 8 7 2001

Grievance Code: _6Q.>oG...&..}_ __
n lnvesti~tor Nurrber: :::J:bS2\8
T. CARROLL INV 0 EM 0 UOF 0 MED

0 ADA 0 REL 0 SSI

You must try to resolve your problem with a staff member before you submit a fonnal complaint. The only exception is when appealing the results of a disciplinary hearing.
Who did you talkto (name, ti~le)? Ll.ttir t!/ossr£!coliRIII, /Jjbzde..J iJa Q &/ When? 2 - 2 ~ .,.. 0'I
What w3S:'their response? 7ity -&:yyu "[ hA. d ilnf d1'"aj ~{- 7i rny 4•/G

State your grievance in the space provided. Please state who, what. when, where and disciplinary case number if appropriate.

1-127 Front (9/1/1999)

PLEASE SIGN ON BACK

.. ~.,.;
(OVER)

Case 7:02-cv-00087-M-BF Document 380 File'-..d..__ 05/23/12 Page 41 of 41 PageID 3350

. ·~
. '

ktion Requested to Resolve your Complaint.

_ _ __ .~-.7~-,_.-------'-···:.:.=.__

Date: !.. -46-o~

0 Mandatory referral to lAD (Grievance worksh et attached)
0 No action warranted (Explain)-.

Your allegations are being investigatPrl by Uni.t C1 3ssific~tion and Security Threat Group.
Upon completion you will· be rescheduled.

- - ··- -~--....:.....:_-.

----~-

·-· -· -; ~.,.,_,

··-· ·;-..-

' ic,

..._. : •

'

: '\

. . ";

'

--- - - - - . - - -.--::~-~--·

..

....._

Sig~ture Authority:

.llil~-··-

MAR 0_1 2011
Date:

·~ If you are dissatisfied with the Step l response, you may submit a Step 2 (1-128') t,o the Uoit Grievance Investigator within 15 days from the Step 1

aapons~. ·State your reason for appeal on the~Step 2 folDl~

·

· Returned because:
0 1. Grievable time period has expired.

... · ......_;, •... ..... ~:;.·~
06. No ~queste'd relief.is stated.*

0 2. Submission in excess of 1 every 7 dayS•

··-~~·o 7. Malicious use of vulgar, indecen~ or physically threatening language directed ilt an inaividual.

0 3. Original not submitted*

0 4. Inappropriate/excessive attachments*

0 5. No d~umented attempt at infonnal

resolution.*

·· ·

.. 0 8. The issue presented is not grievable.
0 9. No remedy exists.

[] 10. Illegible/Incomprehensible"'

;

. ·~

..,You may resubmit this issue once corrections are made.

D 11. Inappropriate (reques.t is for e~ployee disciplinacy
actlon or consequential or puruuve damages).

1·127 Back (9/1/1999)

UGI: ____________________________._

 
 Case: 7:12-cv-00138-O As of: 11/11/2018 11:21 AM CST 1 of 2
CLOSED,FROST,M/IFP,TDIS
U.S. District Court Northern District of Texas (Wichita Falls) CIVIL DOCKET FOR CASE #: 7:12−cv−00138−O

Johnson v. Doe Assigned to: Judge Reed C. O'Connor Related Case: 7:02−cv−00087−M−BF Cause: 42:1983 Prisoner Civil Rights
Plaintiff Roderick Keith Johnson

Date Filed: 08/14/2012 Date Terminated: 09/11/2012 Jury Demand: None Nature of Suit: 555 Prisoner Pet/Other: Prison Condition Jurisdiction: Federal Question
represented by Roderick Keith Johnson TDCJ No 1455959 TDCJ Pack I Unit 2400 Wallace Pack Road Navasota, TX 77868 PRO SE

V. Defendant John Doe

Date Filed 05/23/2012
05/23/2012 05/23/2012
05/23/2012
05/23/2012 06/04/2012
06/12/2012 07/17/2012 07/18/2012 07/30/2012 07/30/2012

# Docket Text
1 New Case Notes: A filing fee has not been paid. CASREF case referral set and case referred to Magistrate Judge Frost (see Special Order 3). Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Frost). Clerk to provide copy to plaintiff if not received electronically. (trt) . (Entered: 08/15/2012)
2 Notice and Instruction to Pro Se Party (trt) . (Entered: 08/15/2012)
4 Brief in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (Document 380 in related case) (trt) (Entered: 08/15/2012)
5 Declaration in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (Document 381 in related case) (trt) (Entered: 08/15/2012)
6 MOTION to Appoint Counsel filed by Roderick Keith Johnson (Document 382 in related case) (trt) (Entered: 08/15/2012)
7 ORDER REFERRING 382 Motion to Appoint Counsel filed by Roderick Keith Johnson filed by Roderick Keith Johnson. (Document 383 in related case) (trt) (Entered: 08/15/2012)
8 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Document 384 in related case) (trt) (Entered: 08/15/2012)
9 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Document 385 in related case) (trt) (Entered: 08/15/2012)
10 NOTICE to the Court filed by Roderick Keith Johnson. (Document 386 in related case) (trt) (Entered: 08/15/2012)
11 Request for Copies by Roderick Keith Johnson. (Document 387 in related case) (trt) (Entered: 08/15/2012)
12 MOTION for Leave to Proceed in forma pauperis with certificate of trust account filed by Roderick Keith Johnson (Document 388 in related case) (trt) . (Entered:

Case: 7:12-cv-00138-O As of: 11/11/2018 11:21 AM CST 2 of 2

08/14/2012 09/11/2012
09/11/2012 09/11/2012 09/12/2012

08/15/2012)
3 ORDER: For the convenience of the Court and the parties and to expedite consideration of Plaintiffs Motion to Proceed IFP, Motion to Appoint Counsel, and Motion for Temporary Retraining Order, the Court hereby severs Plaintiffs pleadings filed in this case under docket numbers 380−388 and directs the Clerk of Court to open a new case under 555 Prison Conditions, with Federal Question jurisdiction. The Clerk of Court shall refile docket numbers 380−388 in the new case. (Ordered by Magistrate Judge Paul D Stickney on 8/14/2012) (trt) (Entered: 08/15/2012)
13 Order Transferring to Another District: Case transferred to Houston Division of Southern District of Texas. Plaintiff has not identified the parties against whom he currently seeks relief. However, the events underlying Plaintiff's request for temporary restraining order and preliminary injunction are occurring in Navasota, Texas. Navasota, Texas is located in Grimes County which lies within the Southern District of Texas, Houston Division. 28 U.S.C. § 124(b)(2). None of the events giving rise to the instant motion have occurred within the Wichita Falls Division and there are no parties to this action located within the geographical boundaries of the Wichita Falls Division. It is therefore ORDERED that, for the convenience of the parties and in the interest of justice, this case is hereby transferred to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. §1404(a). (Ordered by Magistrate Judge E. Scott Frost on 9/11/2012) (plp) (Entered: 09/11/2012)
Interdistrict Transfer to Southern District of Texas, Houston Division; notice sent via email. All documents available electronically. If receiving court cannot upload, documents are available from PACER (record does not contain restricted documents). Counsel advised to file future documents in Southern District of Texas, Houston Division. (plp) (Entered: 09/11/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:13. Tue Sep 11 10:42:10 CDT 2012 (crt) (Entered: 09/11/2012)
Case transferred from NDTX has been opened in Southern District of Texas, Houston Division as case number 4:12−cv−02728. (apy) (Entered: 09/12/2012)

 
 Case 7:12-cv-00138-O Document 13 Filed 09/11/12 Page 1 of 2 PageID 88

IN THE UNITED STALS DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS 2012 SfP I I
WICHITA FALLS DIVISION

RODERICK KEITH JOHNSON, TDCJ No. 1455959,
Plaintiff,

v.

JOHN DOE,

Defendant.

DEPUTY CLERK

)

)

)

)

)

Civil No. 7:12-CV-138-0-BL

)

)

)

ORDER TRANSFERRING CASE Plaintiff, an inmate confined in the Pack I Unit ofthe Texas Department ofCriminal Justice in Navasota, Texas, brings this action seeking a temporary restraining order and preliminary injunction. His request for relief relates to his current conditions of confinement. Venue in a federal civil action is governed by 28 U.S.C. § 1391(b). See Davis v. Louisiana State University, 876 F.2d 412, 413 (5th Cir. 1989). This statute provides that civil cases not founded solely on diversity of citizenship must be brought in the judicial district where: (1) the defendant resides; (2) a substantial part of the events or omissions giving rise to the claim occurred or; (3) where any defendant may be found if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). The Court may transfer a civil action to any proper judicial division or district "[f]or the convenience of the parties and witnesses, in the interest ofjustice[.]" 28 U.S.C. § 1404(a); see Hardwick v. Brinson, 523 F.2d 798, 800 n.2 (5th Cir. 1975). Plaintiffhas not identified the parties against whom he currently seeks relief. However, the events underlying Plaintiffs request for temporary restraining order and preliminary injunction are occurring in Navasota, Texas. Navasota, Texas is located in Grimes County which lies within the SouthemDistrictofTexas, Houston Division. 28 U.S.C. § 124(b)(2). None ofthe events giving rise

Case 7:12-cv-00138-O Document 13 Filed 09/11/12 Page 2 of 2 PageID 89 to the instant motion have occurred within the Wichita Falls Division and there are no parties to this action located within the geographical boundaries of the Wichita Falls Division.1
It is therefore ORDERED that, for the convenience ofthe parties and in the interest ofjustice, this case is hereby transferred to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. §1404(a).
SO ORDERED this 11th day of September, 2012.
UNITED STATES MAGISTRATE JUDGE
1 Plaintifforiginally filed his motion in a case that was closed in 2005. See Johnson v. Wathen, 7:02CV-087-M (N.D. Tex.). The motion was severed from the old case and a new civil action was opened to expedite the consideration of Plaintiffs claims. See Order entered August 15, 2012 (Doc. No. 3). Plaintiff has identified Gary Johnson and Richard Wathen as Defendants in the style of his motion. However, these individuals were Defendants in Plaintiffs old case and appear to have no connection to the allegations set forth in the instant case.
-2-

 
 Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 1 of 7
APPEAL,CLOSED,PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:12−cv−02728

Johnson v. Doe Assigned to: Judge Sim Lake Case in other court: Texas Northern, 7:12−cv−00138 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 09/12/2012 Date Terminated: 07/22/2013 Jury Demand: Defendant Nature of Suit: 555 Habeas Corpus (Prison Condition) Jurisdiction: Federal Question

Roderick Keith Johnson

represented by Roderick Keith Johnson TDCJ No 1455959 Pack 1 Unit 2400 Wallace Pack Rd. Navasota, TX 77868 PRO SE

V. Defendant John Doe Defendant Brad Livingston Executive Director of TDCJ
Defendant William Stephens
Defendant Sr. Warden Richard Herrera
Defendant Lanette Lithicum Director of Health Services Division
Amicus Office of the Attorney General of Texas

represented by Celamaine Cunniff Office of the Atty Gen Law Enforcement Def Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−370−9389 Email: Cela_Cunniff@txed.uscourts.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 2 of 7 ATTORNEY TO BE NOTICED

Date Filed 05/23/2012
05/23/2012 05/23/2012 05/23/2012 05/23/2012 06/04/2012 06/12/2012 07/17/2012 07/18/2012 07/30/2012 07/30/2012 08/14/2012
09/11/2012
09/12/2012

# Docket Text
1 New Case Notes: A filing fee has not been paid. CASREF case referral set and case referred to Magistrate Judge Frost (see Special Order 3). Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Frost). Clerk to provide copy to plaintiff if not received electronically. (trt) . (Entered: 08/15/2012)
2 Notice and Instruction to Pro Se Party (trt) . (Entered: 08/15/2012)
4 Brief in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (Document 380 in related case) (trt) (Entered: 08/15/2012)
5 Declaration in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (Document 381 in related case) (trt) (Entered: 08/15/2012)
6 MOTION to Appoint Counsel filed by Roderick Keith Johnson (Document 382 in related case) (trt) (Entered: 08/15/2012)
7 ORDER REFERRING 382 Motion to Appoint Counsel filed by Roderick Keith Johnson filed by Roderick Keith Johnson. (Document 383 in related case) (trt) (Entered: 08/15/2012)
8 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Document 384 in related case) (trt) (Entered: 08/15/2012)
9 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Document 385 in related case) (trt) (Entered: 08/15/2012)
10 NOTICE to the Court filed by Roderick Keith Johnson. (Document 386 in related case) (trt) (Entered: 08/15/2012)
11 Request for Copies by Roderick Keith Johnson. (Document 387 in related case) (trt) (Entered: 08/15/2012)
12 MOTION for Leave to Proceed in forma pauperis with certificate of trust account filed by Roderick Keith Johnson (Document 388 in related case) (trt) . (Entered: 08/15/2012)
3 ORDER: For the convenience of the Court and the parties and to expedite consideration of Plaintiffs Motion to Proceed IFP, Motion to Appoint Counsel, and Motion for Temporary Retraining Order, the Court hereby severs Plaintiffs pleadings filed in this case under docket numbers 380−388 and directs the Clerk of Court to open a new case under 555 Prison Conditions, with Federal Question jurisdiction. The Clerk of Court shall refile docket numbers 380−388 in the new case. (Ordered by Magistrate Judge Paul D Stickney on 8/14/2012) (trt) (Entered: 08/15/2012)
13 Order Transferring to Another District: Case transferred to Houston Division of Southern District of Texas. Plaintiff has not identified the parties against whom he currently seeks relief. However, the events underlying Plaintiff's request for temporary restraining order and preliminary injunction are occurring in Navasota, Texas. Navasota, Texas is located in Grimes County which lies within the Southern District of Texas, Houston Division. 28 U.S.C. § 124(b)(2). None of the events giving rise to the instant motion have occurred within the Wichita Falls Division and there are no parties to this action located within the geographical boundaries of the Wichita Falls Division. It is therefore ORDERED that, for the convenience of the parties and in the interest of justice, this case is hereby transferred to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. §1404(a). (Ordered by Magistrate Judge E. Scott Frost on 9/11/2012) (plp) (Entered: 09/11/2012)
14 Case received electronically from Texas Northern. Case Number 7:12−cv−00138. (Entered: 09/12/2012)

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 3 of 7

09/12/2012 09/14/2012 09/14/2012 10/04/2012 10/09/2012 01/10/2013 01/10/2013 01/11/2013 01/15/2013 01/22/2013 01/25/2013 02/01/2013 02/21/2013
02/21/2013
03/12/2013
03/15/2013 03/20/2013

15 NOTICE to Pro Se Litigant, filed. (mlothmann) (Entered: 09/12/2012)
16 NOTICE OF DEFICIENT PLEADING as to Roderick Keith Johnson. Complete Conplaint Form Parties notified. Notice of Compliance due by 10/15/2012, filed. (Attachments: # 1 Complaint Form)(gkelner, ) (Entered: 09/14/2012)
17 ORDER granting 12 MOTION for Leave to Proceed in forma pauperis with certificate of trust account. (Signed by Judge Sim Lake) Parties notified. (aboyd) (Entered: 09/14/2012)
18 AMENDED Prisoner Civil Rights COMPLAINT against All Defendants filed by Roderick Keith Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(vrios, ) Modified on 10/5/2012 (bgoolsby, ). (Entered: 10/04/2012)
19 NOTICE to Pro Se Litigant, filed. (mlothmann) (Entered: 10/09/2012)
20 ORDER TO ANSWER denying 6 MOTION to Appoint Counsel (Signed by Judge Sim Lake) Parties notified. (aboyd) Modified on 1/29/2013 (aboyd). (Entered: 01/10/2013)
Document(s) Sent by certified mail (Receipt # 7011 1570 0000 7671 2667) to Texas Attorney General's Office, care of Lee Haney re: 20 Order to Answer, 18 Complaint, 5 Declaration in Support, 4 Brief in Support, filed. (aboyd) (Entered: 01/10/2013)
21 DESIGNATION of Celamaine Cunniff, Assistant Attorney General, as attorney in charge of Office of the Attorney General of Texas, filed.(Cunniff, Celamaine) (Entered: 01/11/2013)
***Delivery Confirmation; delivery date(s) 1/14/2013 at 10:03am re: Document(s) Sent, filed. (jdav, ) (Entered: 01/15/2013)
22 Certified Mail Receipt Returned, executed on 1/14/2013 re: Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (cfelchak) (Entered: 01/23/2013)
***Answer due for All Defendants February 20, 2013. (bgoolsby, ) (Entered: 01/25/2013)
23 Letter from Roderick Keith Johnson re: status request, filed. (amireles, ) (Entered: 02/04/2013)
24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. Motion Docket Date 3/14/2013. (Attachments: # 1 Exhibit A: Affidavit of Dr. Lannette Linthicum, M.D., # 2 Exhibit B: Correspondence from State of New Mexico Corrections Department, # 3 Exhibit C: Tx. Gov't Code Section 501.146(a)(1), # 4 Proposed Order)(Cunniff, Celamaine) (Entered: 02/21/2013)
25 MOTION for Temporary Restraining Order by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. Motion Docket Date 3/14/2013. (Attachments: # 1 Exhibit A: Offender Commitment Data, # 2 Exhibit B: Correspondence from State of New Mexico Corrections Department dated June 17, 2011, # 3 Exhibit C: Tx. Gov't Code Section 501.146(a)(1), # 4 Exhibit D: Affidavit of Dr. Lannette Linthicum, M.D., # 5 Proposed Order)(Cunniff, Celamaine) (Entered: 02/21/2013)
26 MOTION for Leave to File an Amended Complaint by Roderick Keith Johnson, filed. Motion Docket Date 4/2/2013. (Attachments: # 1 Cover Letter, # 2 Exhibits, # 3 Envelope, # 4 Amended Complaint, # 5 Continuation, # 6 Continuation)(rosaldana) (Entered: 03/14/2013)
27 REPLY to Response to 25 MOTION for Temporary Restraining Order, filed by Roderick Keith Johnson. (Attachments: # 1 Cover Letter, # 2 Proposed Order, # 3 Exhibit)(ccarnew, ) (Entered: 03/20/2013)
28 MOTION/RESPONSE in Opposition to Defts 24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, filed by Roderick Keith Johnson. (sguevara, ) (Entered: 03/21/2013)

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 4 of 7

03/25/2013 04/05/2013 04/22/2013
04/22/2013 04/22/2013 04/23/2013 04/23/2013 05/06/2013 05/06/2013 05/06/2013 05/07/2013 05/08/2013 05/14/2013
05/14/2013 05/15/2013 05/15/2013 05/15/2013
05/16/2013 05/16/2013

29 NOTICE Defendants' Notice of Initial Disclosure by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 03/25/2013)
30 RESPONSE to 26 MOTION for Leave to File an Amended Complaint filed by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 04/05/2013)
31 MOTION for Extension of Time to File Motion for Summary Judgment by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. Motion Docket Date 5/13/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 04/22/2013)
32 Plaintiff's Opposition to Defendants Response to Plaintiff's to 26 MOTION for Leave to File an Amended Complaint, filed by Roderick Keith Johnson. (isoto) (Entered: 04/23/2013)
34 DECLARATION in Support of Emergency Temporary Restraining Order for the Plaitniff Roderick Keith Johnson, filed.(isoto) (Entered: 04/23/2013)
33 PROPOSED ORDER for Emergency Order for a Temporary Restraining Order, filed.(isoto) (Entered: 04/23/2013)
35 ORDER granting 31 MOTION for Extension of Time to File Motion for Summary Judgment (Motion for Summary Judgment due by 5/14/2013.) (Signed by Judge Sim Lake) Parties notified. (aboyd) (Entered: 04/23/2013)
37 MOTION for Leave to File Supplemental Complaint by Roderick Keith Johnson, filed. Motion Docket Date 5/28/2013. (Attachments: # 1 Cover Letter)(cfelchak) (Entered: 05/08/2013)
38 PROPOSED ORDER re: 37 MOTION for Leave to File Supplemental Complaint, filed.(cfelchak) (Entered: 05/08/2013)
39 Letter from Roderick K Johnson re: Life is in Danger, filed. (cfelchak) (Entered: 05/08/2013)
36 MOTION for Leave to File supplemental complaint by Roderick Keith Johnson, filed. Motion Docket Date 5/28/2013. (Attachments: # 1 cover letter)(ckrus, ) (Entered: 05/07/2013)
40 ANSWER to Complaint with Jury Demand by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 05/08/2013)
41 MOTION to Seal Defendants Livingston, Thaler, Herrera, and Linthicum's Motion for Summary Judgment with Brief in Support by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. Motion Docket Date 6/4/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 05/14/2013)
42 Sealed Event, filed. (With attachments) (Entered: 05/14/2013)
46 PROPOSED Emergency Order for a Temporary Restraining Order, filed. (Attachments: # 1 Letter)(megarcia, ) (Entered: 05/20/2013)
47 DECLARATION In Support of Emergency Protection and Temporary Restraining Order of Roderick Keith Johnson re: 46 Proposed Order, filed. (megarcia) (Entered: 05/20/2013)
48 Plaintiff's MOTION for the Appointment of Counsel with Declaration and Brief in Support by Roderick Keith Johnson, filed. Motion Docket Date 6/5/2013. (Attachments: # 1 Declaration in Support of Plaintiff's Motion for the Appointment of Counsel, # 2 Proposed Order)(megarcia, ) (Entered: 05/20/2013)
43 NOTICE Defendants' Notice of First Supplemental Disclosures by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 05/16/2013)
44 RESPONSE to 37 MOTION for Leave to File Supplemental Complaint filed by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 05/16/2013)

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 5 of 7

05/16/2013 05/24/2013 05/24/2013
05/24/2013 06/21/2013 06/24/2013
06/25/2013 06/26/2013
07/08/2013 07/19/2013 07/19/2013 07/19/2013 07/22/2013
07/22/2013 08/14/2013 08/14/2013 08/14/2013

45 ORDER granting 41 MOTION to Seal Defendants Livingston, Thaler, Herrera, and Linthicum's Motion for Summary Judgment with Brief in Support. (Signed by Judge Sim Lake) Parties notified. (aboyd) (Entered: 05/17/2013)
49 MOTION to Deny the Defendants Motion for Summary Judgment or A Stay Until the Necessary Information May be Obtained by Roderick Keith Johnson, filed. Motion Docket Date 6/14/2013. (Attachments: # 1 Envelope) (wbostic) (Entered: 05/24/2013)
50 DECLARATION is Support of of Roderick Keith Johnson re: 49 MOTION Plaintiff's motion to Deny the Defendants Motion for Summary Judgment or A Stay Until the Necessary Information May be Obtained, filed. (Attachments: # 1 Envelope) (wbostic) (Entered: 05/24/2013)
51 Letter from Roderick K. Johnson re: Status of Case, filed. (wbostic) (Entered: 05/24/2013)
52 RESPONSE to 48 MOTION for Appointment of Counsel filed by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 06/21/2013)
53 REPLY to Response to 42 Sealed Event, filed by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler. (Attachments: # 1 Exhibit A: Copy of Letter to Plaintiff with HIPAA Releases, # 2 Proposed Order Granting Defendants' Motion for Summary Judgment)(Cunniff, Celamaine) (Entered: 06/24/2013)
54 NOTICE of Second Supplemental Disclosures by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 06/25/2013)
55 RESPONSE to 46 Proposed Order, 47 Declaration Defendants' Response to Plaintiff's Motion for Temporary Restraining Order, filed by Richard Herrera, Lanette Lithicum, Brad Livingston, Rick Thaler. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 06/26/2013)
56 Letter from Brian McGiverin, filed. (sscotch, ) (Entered: 07/09/2013)
57 Petitioner's RESPONSE to 53 Reply to Response to Motion for Summary Judgment, filed by Roderick Keith Johnson. (dnoriega, ) (Entered: 07/22/2013)
58 Plaintiff's RESPONSE to Defendant's Response to Plaintiff's 25 MOTION for Temporary Restraining Order, filed by Roderick Keith Johnson. (gsalinas) (Entered: 07/22/2013)
59 REPLY to 52 Defendant's Response to Plaintiff's Motion for Appointment of Counsel, filed by Roderick Keith Johnson. (sscotch, ) (Entered: 07/22/2013)
60 MEMORANDUM OPINION AND ORDER: 24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and 42 Motion for Summary Judgment are granted. 1 Complaint is dismissed with prejudice. 26 MOTION for Leave to File an Amended Complaint is denied. 36 MOTION for Leave to File supplemental complaint, 37 MOTION for Leave to File Supplemental Complaint, 48 MOTION for Appointment of Counsel, and 49 MOTION Plaintiff's motion to Deny the Defendants Motion for Summary Judgment or A Stay Until the Necessary Information May be Obtained are denied. (Signed by Judge Sim Lake) Parties notified.(glyons) (Entered: 07/22/2013)
61 FINAL JUDGMENT. Case terminated on 7/22/2013. (Signed by Judge Sim Lake) Parties notified.(glyons) (Entered: 07/22/2013)
62 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 61 Final Judgment, 60 Memorandum and Order,, by Roderick Keith Johnson (Filing fee $ 455), filed. (Attachments: # 1 envelope, # 2 cover letter)(sguevara, ) (Entered: 08/15/2013)
63 MOTION for Leave to Appeal in forma pauperis by Roderick Keith Johnson, filed. Motion Docket Date 9/4/2013. (Attachments: # 1 cover letter, # 2 envelope)(sguevara, ) (Entered: 08/15/2013)
64 Prisoner Trust Fund Account Statement by Roderick Keith Johnson, filed. (Attachments: # 1 cover letter, # 2 emvelope) (sguevara, ) (Entered: 08/15/2013)

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 6 of 7

08/23/2013 09/10/2013
09/20/2013 10/17/2013 11/04/2013
11/13/2013 11/22/2013 01/09/2014 01/09/2014 01/15/2014 04/09/2014 04/09/2014 05/07/2014 05/07/2014 04/21/2015 04/21/2015 09/21/2015 09/21/2015 10/13/2015 10/13/2015 11/16/2015 11/16/2015

Notice of Assignment of USCA No. 13−20475 re: 62 Notice of Appeal, filed.(hler, ) (Entered: 08/23/2013)
65 Notice of the Filing of an Appeal. DKT13 transcript order form was not mailed to appellant. Fee status: Pending IFP. The following Notice of Appeal and related motions are pending in the District Court: 62 Notice of Appeal, 63 MOTION for Leave to Appeal in forma pauperis, filed. (Attachments: # 1 NOA, # 2 Judgment, # 3 Docket sheet)(smurdock, 4) (Entered: 09/10/2013)
66 NOTICE of Change of Address by Roderick Keith Johnson, filed. (lusmith, 3) (Entered: 09/23/2013)
67 NOTICE of Change of Address by Roderick Keith Johnson, filed. (hler, 4)Address updated. (Entered: 10/18/2013)
68 REQUEST for Record on Appeal re: 62 Notice of Appeal by Celamaine Cunniff, Office of the Attorney General of Texas, filed. (Attachments: #(1) Unredacted attachment) (rnieto, 1) (Entered: 11/05/2013)
69 ORDER granting 63 Motion for Leave to Appeal in forma pauperis.(Signed by Judge Sim Lake) Parties notified.(glyons, 4) (Entered: 11/14/2013)
PARTIAL PLRA Filing fee: $25.50, receipt number HOU040816, filed. (agould, 4) (Entered: 11/22/2013)
PARTIAL PLRA Filing fee: $16.00, receipt number HOU042207, filed. (agould, 4) (Entered: 01/09/2014)
PARTIAL PLRA APPEAL Filing fee: $16.00, receipt number HOU042207, filed. (agould, 4) (Entered: 01/09/2014)
70 Letter from Roderick K. Johnson re: TDJC Collection of fees, filed. (dgonzalez, 5) (Entered: 01/15/2014)
PARTIAL PLRA Filing fee: $6.00, receipt number HOU044502, filed. (agould, 4) (Entered: 04/09/2014)
PARTIAL PLRA APPEAL Filing fee: $6.00, receipt number HOU044502, filed. (agould, 4) (Entered: 04/09/2014)
PARTIAL PLRA Filing fee: $6.00, receipt number HOU045225, filed. (agould, 4) (Entered: 05/07/2014)
PARTIAL PLRA APPEAL Filing fee: $6.00, receipt number HOU045225, filed. (agould, 4) (Entered: 05/07/2014)
PARTIAL PLRA Filing fee: $8.00, receipt number HOU052788, filed. (agould, 4) (Entered: 04/21/2015)
PARTIAL PLRA APPEAL Filing fee: $8.00, receipt number HOU052788, filed. (agould, 4) (Entered: 04/21/2015)
PATRIAL PLRA Filing fee: $8.00, receipt number HOU056574, filed. (agould, 4) (Entered: 09/21/2015)
PATRIAL PLRA APPEAL Filing fee: $8.00, receipt number HOU056574, filed. (agould, 4) (Entered: 09/21/2015)
PARTIAL PLRA Filing fee: $8.00, receipt number HOU057265, filed. (agould, 4) (Entered: 10/13/2015)
PARTIAL PLRA APPEAL Filing fee: $8.00, receipt number HOU057265, filed. (agould, 4) (Entered: 10/13/2015)
PARTIAL PLRA Filing fee: $4.00, receipt number HOU058097, filed. (agould, 4) (Entered: 11/16/2015)
PARTIAL PLRA APPEAL Filing fee: $4.00, receipt number HOU058097, filed. (agould, 4) (Entered: 11/16/2015)

Case: 4:12-cv-02728 As of: 11/11/2018 11:35 AM CST 7 of 7

07/19/2016 07/19/2016 03/01/2017
03/01/2017

PARTIAL PLRA Filing fee: $8.00, receipt number HOU064348, filed. (jsuchma, 4) (Entered: 07/22/2016)
PARTIAL PLRA APPEAL Filing fee: $8.00, receipt number HOU064349, filed. (jsuchma, 4) (Entered: 07/22/2016)
Confirmation of receipt of payment from RODERICK KEITH JOHNSON in the amount of $ 20.00 Receipt date: 2/16/2017. Receipt number HOU070219. Purpose Description: PLRA CIVIL FILING FEE. (jholguin, 4) (Entered: 03/01/2017)
Confirmation of receipt of payment from RODERICK KEITH JOHNSON in the amount of $ 20.00 Receipt date: 2/16/2017. Receipt number HOU070221. Purpose Description: PLRA CIVIL FILING FEE. (jholguin, 4) (Entered: 03/01/2017)

 
 Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 1 of 18

Case 4:12-cv-02728 Document 16-1 Filed in TXSD on 09/14/12 Page 1 of 5

COMPLAINT UNDER 42 USC §1983, CIVIL RIGHTS ACT-TDCJ-ID (Rev. 4/2008)

---..Jt:. IN THE U~ITED STATES DISTRICT COURT

..._4, . FORfT.Ho~EPu.'SSout-Jtfhletx)iAfI{,

DISTRICT OF TEXAS DIVISION

~...._

S£,

pI

1

~ <'0/!

~EKiCK lf.dh. JDJII'JJ'ii:AL "'1'1559'5 9 ~f\'1-Uld.-ed · ~,

Plaintiffs name and ID Number

·

v.
~f~~lf!1fl~~J~,;ss flq_. ~~~~f.?r! 7R71/

CASE NO. t\- I~-~]~
(Clerk will assign the number)

Zcx livtle-J? , b. &"- 99 d,hy/Je.,'lX.

Defendant's name and address

7 7 j I.JL

n /,'t),Atf.d tle:Jete:tR, .J'b12 WAIINe 'lAa p/

Defendant's name and address

JtJAVA5M>f14J ?7!!6&'

(DO NOT USE "ET AL. ")

INSTRUCTIONS- READ CAREFULLY

OCT o4 Z01Z

NOTICE:

David J.Bradley. ClerkofCOUrt

Your complaint is subjed to dismis~al unless it conforms to these instructions and this form.

1. To start an action you must file an original and one copy of your complaint with the court. You should keep a copy of the complaint for your own records.

2. Your complaint must be legibly handwritten, in ink, or typewritten. You, the plaintiff, must sign and declare
under penalty of perjury that the facts are correct. lfyou need additional space, DO NOT USE THE REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND WRITE ON IT.

3. You must file a separate complaint for each claim you have unless the various claims are all related to the same incident or issue or are all against the same defendant, Rule 18, Federal Rules ofCivil Procedure. Make a short and plain statement of your claim, Rule 8, Federal Rules of Civil Procedure.

4. When these forms are completed, mail the original and one copy to the Clerk ofthe United States Court for the appropriate District ofTexas in the Division where one or more named defendants are located, or where the incident giving rise to your claim for relief occurred. The list labeled as "VENUE LIST" is posted in your unit law library. It is a list of the Texas prison units indicating the appropriate District Court, the Division and an address Jist of the Divisional Clerks.

1

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 2 of 18 Case 4:12-cv-02728 Document 16-1 Filed in TXSD on 09/14/12 Page 2 of 5
FJLING FEE AND IN FORMA PAUPERIS
1. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.
2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis (IFP), setting forth information to establish your inability to prepay the fees and costs or give security therefor. You must also include a current six (6) month history of your Inmate Trust Account. You can acquire the application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison unit.
3. 28 U.S.C. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides, "...if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been paid by the prisoner. Ifyou submit the application to proceed informapauperis, the Court will apply 28 U.S.C. 1915 and, ifappropriate, assess and collect the entire filing fee or an initial partial filing fee, then monthly installments from your Inmate Account, until the entire $3 50 filing fee has been paid.
4. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to Proceed IFP, and the Certificate oflnmate Trust Account. Complete all the essential paperwork before submitting it to the Court.

CHANGE OF ADDRESS
It is your responsibility to inform the Court of any change of address and its effective date. Such notice should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any motion (s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal ofyour complaint pursuant to Rule 4l(b), Federal Rules of Civil Procedure.

I. PREVIOUS LAWSUITS:

A. Have you filed any other lawsuits in state or federal court relating to your imprisonment?

(YES NO

B. Ifyour answer to "A" is "yes," describe each lawsuit in the space below. (Ifthere is more than one

lawsuit, describe the additional lawsuits on another piece of paper, giving the same information.)

1. Approximate date of filing lawsuit: A(Jt,'l 17 fit diJD ~

2. Parties to previous lawsuit:
Plaintiff(s) KoJ)JZ&'cK IJ'J'/6 '-ToJ.tJ.SD/1 11:1 '15 5'!5 'l
Defendant(s) 6A t YJ'tbo sod. , £tiJAild ILIA theA} JexAs 3. Court: (lffederal, name the district; if state, name the county.) No&.J/,ttAl rf.tJlicftJ£ 4. Docket Number: 7! {)~- l.lf·-()81- M /£
5. Name ofjudge to whom case was assigned: Hbttlntlthle Ju&.t:. fl,.f(hALJI /N~, LI(JJA}

r 6.

DispQSition~ (Was the fase dismissed~!,ealed, still pending?)
~ISM•SSed b LTiitl( JL{,A}

7. Approximate date of disposition: /)f fohd :/...aiJ5

2

. Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 3 of 18 ·• .

OFFICE USE ONLY
Texas Department of Criminal Justice ttl Gr.ievanc'e #:·_0/..~ .;..__bl'_ ;;l _ J.<f_ ¥1;:;-_

STEP.2

d · UGI Reed Date: 'I D• I

You must attach the completed Step 1 Grievanc that has been signed by the Warden for your Step 2 appeal to be accepted. You may not appeal to Step 2 with a Stej that has been returned unprocessed.

Give reason for appeal (Be Specific). I am dissatisfied with the response at Step 1 because...

c. nb. TMie~:.
#,e.,

',tle.·u~~t/nL1sJIheJAnAii±f:/£d~'a4t1:s1si?/e.lAl";cI/je,u.i5Icf5;AJdio'/cfe.'d·~~c&tet.trbfA!~nndd

~e 7hel'f:"£01j letl'rl i?,pe.RS tt-s

Hns Aad to uc6
lveA-I:'l.i'tbtiJkotz

':if. th

dJall5btJ>eJc:iT: im?ecs-hf>?~

As :/tie &df! It Ju.5k!J YKe Ac/ia11J Pp ,'.J)s ..sidlr~.&lher1 ~.!}' ,:,l/111j:l/punl1/dri:J

.Jh4;ItJ5f ~ jh'ev"fnC(.5 And /At.JSui~ .:L l"9ve C/Jed. "1ft WtHtdea LLphold:s

IA:/i-/i. Ala .RPtfrtrd rocrfb)~ W~t'vh tn fhi.s t'Asr. Axthor ..z:e.S {)r:tiru£A.ec,"dhs

E;..lht ft7,}/ /eJI lttss tkao 2'1- hour~ AfJfer he /-!J$1~ As.saw/6mt:- IJodA

~;/:}a~·~'r::!:ilo~s;: ~;t~?u1:)2d~~;:; ~·1/:/.::~:r;:}/

du'"l t 1fe(l S1!J tntJ.f /11y /l!fd/ mAbod/..5 WtYC- 7l!J<tn, ·wrJ hti's'·' IJDt bttn rdflrod
~o'lj ~gz,:~d:~~&A~=+=~r=~'~~~, f_ ~==tj!;t;tr,he4-bi~J~ J~=::~ ==== =~/~9s/WS&~>

Ne._ver ihve.sh4!!\rtcl W.'nen, + t.oMf}e,'·oed cf lb)s At:r ~s, lb'?hbJ likel;j to

ft.A-ppe o And ~eo 'ili,.s hA-ppelled 'f-nc Toc,r Adro\1}\.=,-lr,g-hr"-5 i)J.SCounts

.Sufl--1.

lf/J~J ht9~

Appendix G

ar dsi't/.:,Ahi "Acr 7/oh:dJA''fl1ec6Jedft..S.C.5as.Je/;4,5:12/J-1cevA-I0J2.S7II2{~8;;e~,DtYoncJ'u)lIm9SVeAnLtJ{1lof8tfJfIF1ilrendeIi_Jn_#tTt1JX/inS~6fDlAoins 1?0r//0J4~f/f1?}2ef.tAP_Srajbg/n)e~~I4bJltolffl1II8IIIKnnoil?fel5~9n6(nl~9en.d.
d/sRe6Ae.ded AtJ C:xc.es:sivec Kist<. tc, rni He.Al±h 1\rld 5Af't"..+'t'4' TJ,,II M, iJolh from Yl,e,'f( lnves-hhoi:na in to k';~ Y\At\}te .e... frte.t5 ullu£h tnMt5 titM AtJtiY~ a fiAt. ~.,{eye..oc-e.. ·iKA+ Paa Be. d.rawo iKat A Snb:smnn A-\ flaK t?{Ju/tn5 hAI&IJ IN/sf::i; And Also drtlWJ tHe /nfi.rt:nce... :The ADM\o!~-h~ocs hlivL dtlb1l ~df;Lof

Grievance Response:

Date:

Upon further review of your Step 1 complaint. No evidence was found that Security staff

l

retaliated against you due to your use of the Grievance Procedure. No evidence was found

that Security staff inappropriately searched your cell. This decision was based on

statements gathered concerning your allegations· against Security staff. No further action is

l

warranted.

I

l

B. Armstrong

I

l

Assistant Regionai Dir'e~tor
.... '

I Signature Authority:

l

Returned because: · *Resubmit this form when corrections ar,e made.
D 1. Grievable time perio(l has expired.

Date:

•· IS&P 1 1 201a

OFFICE USE ONLY

Initial Submission

CGO Initials:

. Date UGIRecd:._ _ _ _ _ _ _ _ _ __

D 2. Hlegiblellncomprehensible.*

DareCGORecd:~~-----------

I D 3. Originals not submitted. * 0 4. Inappropriate/Excessive attachments.*

·(check one) _Screened _Improperly Submitted
Comments:---'------------Date Returned to Offender:._ _ _ _ _ _ _ __

l
1

D 5. Malicious use of vulgar, indecent, or physically threatening ianguage. ~~~~~Submission

CGO Initials: _ __

D 6. Inappropriate.*

Dare UGI R e e d : - - - - - - - - - - - - -
·DateCGORecd:.~------~-~~

I

(check one)._Screened -._Improperly Submitted
• Comments: _ _ _ _ _ _ _ _ _ _ ____

1· CGO StaffS;gnature: - - - - - - - - - - - - - - - - -
j
I
I

·nate Returned to Offender: _ _ _ _ _ _ _ __

J"' Submission

CGO Initials:--..,.--

Dare UGIRecd: _ _ _ _ _ _ _ _ _ __

·DareCGORecd:_ _ _ _ _ _ _ _ _ _ ___

(<;heck one) _Screened _·_Improperly Submitted

Comments:--------------
Date Returned to Offender: _ _ _ _ _ _ _ __

1-128 Back (Revised 11-201 0)

AppendixG

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 5 of 18 Case 4: 12-cv-02728 Document 16-1 Filed in TXSD on 09/14/12 Page 3 of 5

Juska; 'lcK II. .. PLACE OF PRESENT CONFINEMENT: 'Jix,j ()}ea.,g;h.,!rJ fof' ft/m,'AAJ

J IJnJf

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution?

NO

Attach a copy of the Step 2 grievance with the response supplied by the prison system.

IV. PARTIES TO THIS SUIT:

A. Name and address of plaintiff: KMEL?iC.J< Kt./fh .._TcbnjoJJ trJJ./5?tf5''/

PAcK ' uni~ :; iJaiJ JJ, lfhte ~C¥ Rd ' -a. ALA VA SDlif I

11Rk~

'

defendant~ B. Full name of each

his official position, his place of fAI5D

employment, and his full matlini address.

[

K.tfe:( t/:6
i A'

A#N:hMl.f\
/

Defendant #1: Bt.vi L;v,'abSkJ., Extenk~~t- ,b/&c.lat. , JiitAs J)ep/:
to. tt./MVJAl JJJt>kce, Epv. /31)8'/, Aus.JiAJ 'IX ?&711 )
Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.
5Ee A'-ffAchMeJJf

Ro. Defendant #2: Rt ,·e,K ThAleR ,1 J2/llec/or
7CYA-.s .he?r. &'n.,'atol dusku'

forac
BD'L 4

htn £t.

ll
H

1ojk~#~trl olVf's/1>n
.urtsvillt, 7:t. /f~j!f~

Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.
SF£ Aft~tc.bme.n±

unrr Briefly describe the
He ,'5 lr4tttl"

act(s) or omission(s) ofthis defendant which
Kt,.,?otJ$(ble ~('lite h&fAWtJj o£

you claimed
YAC}( I

harmed you.
And~

f.lt~

Defendant #4: LAJJe..fte h'lln't.urH t i:n'Btc.foil. 1-htJJ..}J, ..S'eul/ce.s b~vls/n·t
Ji'ilt5 c~)e.t} ~:M~t\ft) c~lsh're I ?.n. Cl:>X. '19 •I tluhbv:lle.-(1)(. '77:3t.J:J..
Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.

2>LL Ai±Acbrnen-k

w,ej Defendant #5: EACh tkft.nch,t /s Suc.d itJdiv,JqAII'I-And /n h/s ~'CiiJ./

ld?.tcit(, At All

Mtnllond '" 'In's l.ontPIJtio/=etteh (Otfi.,Jollf Acrul

Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.
t.1 nder & ln€ ,£ :S-b±e lA \J

3

YA 70 Case 4:12-cv-0:2I7.2\8/. Documetnet~1'8ej Filed in T~XISjD ocnfL1J0:r/:04T/12 Page 6 of 18
( II ftAdl rnel'll It )

/)r :tI j)Ekfl d!lnt DlAd Llv,'n/,.5 foJJ /j 'il1e.- e-x~tu#vt.- oii~tfllf!. ~r

s 'ihe_ 1E:u5 cb'l-fAR.tMenf
uli'MAtf. rc.~f'Pn.Sibllif'i

et:n.t,'nAL Jus+.z~ l" Tllt.J'J). Jk hAil
lJ/#alr.J ifl..e... lJePAtthnen+ A~ bl/e:r.5rr/nb

7i.e o?eKAffoJJj /){' Jlltt 'Pr/JDAJ FJciJ/W'E:-5 A,Jb EJJSu~,'!v6

Pn'5otJ oFh'u'PriS Ab flEJ?el)r_e, Y6 tcdPRAJ 14YJd ..5119ft:: LAJJJ ·
& cl tJMc/,.,_1 liJ eJ ?oI/t Y

br .ileftndAn+ z #:- R;d... 7hIJ }I!£_ , .ll~edol t.oi<R.ELitfJNA L

::In.s-r.·h.ttlvns :JJiv{.StbJJ Df {Tnc:J), H~ ~5 uJ/t,.,ft.. b!Jlon~J·J>,)/JI lJ/fi,,/J fh e ::rt15ftfulfj,niiL DiVc'siDn OVeR..St;e/n G '/A~ JeLut/fr'

lffle) (!Jf15j ihLIJ.JlDtJ ,it; of SiAfL frt'SPJJ fAc,)[ffe_s lfncJ l:ltJ.Sui/n6 ~,joiJ Dvtv/oYu'-5 Adherencl!. W; o{{;CJA) JJ)Lf ?ol/~ Y

che-~dA1\t- -t: 3
7AcK J un .·+~
fA LJZ. I Unif

"'
'*' 2·a"f.d l-ieRI?eJ?t1~ S£n/p/(_ bJA&:leAJ tl' tM~
Ne /s te.5flon.5/llle tVl -k\e d.til~ DPetAtibnS

JJ e~~dAn+ ..LJ LAneff'e UthiCLJM, iJl~ecloJ< tJf' W,e HeAIHI <.5 erv,·c6 .h,,Vt5/oJJ. SAe.. /J f?e_sloiJsih)e_ W 1-m.s u1.Ji!Lt1rtE
ikrl'hotit'l ~ve::R.Sccln6 lh~ He:11Lfll !Aft~ f?-IJ,hclui ~ offf_nders
lJho hAve. Md:lt!.AL ,JJen·rlfl, 8Yz:Ai4h::ttt''- ~Yt.)JI'Aft/e !Md
Y6 'f'C.h DIo6/64-l ?rvhJ em5 ,

.b.e_f£ndAnt ~ S A~ A-ll Relev11nf iM~ 1 ALL .i::&.ntiAnfJ
Atted under &lot. ~r sfAk LAIA11 A-nn ALL :Inniv/duAL
d:lt-f endAntj /Jere Ac.JrJJ /., ,J.'fh/JJ tfhe_ StPPt:... tllhe/t<. EMPJoYhJe~~f.

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 7 of 18 Case 4:12-cv-02728 Document 16-1 Filed in TXSD on 09/14/12 Page 4 of 5
V. STATEMENT OF CLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen, when did it happen, and who was involved. Describe how each defendant is involved. You need not give any legal arguments or cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR COMPLAINT.
I. iAUfh IJesPfr t' ~ ts!lch e£ W,t k,uo1.Un& tlA/m.s/ i!Je CJ'rt.Gnc14ob
en&tt6ed ;:t.N Pi>nducf w,·~ l'f2Mlte lhld ~tcl(l=tSS lf2i I!&UIJIJ s
i)is Ke61Ld Jtnd ::t-ndt'ffrrence "" the lot~sf,·fuhonA-1 ttnd..silubr'l
R/6h~ a£ mf. OObnSp,J
.J.. The. 'Pteia ifrt i?f f!l/ett? s hd .Io rnt?oesh.s hi/ f?tfrerce cfA e,
bAtf5 J>t SC.n'bu:J htrr N 11 6-od in %e. j?A-Ul bcAi?bS of h/5 OJDJton fDt!_
A femP4i:.At.lf iesfrAfll/n6 ~R trnd IJ.eb'Mlmtl..l/ InJunchro,J.

RELIEF: State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases
or statutes.

VII. GENERAL BACKGROUND INFORMATION:
A. State, in complete form, all names you have ever used or been known by including any and all aliases:
Ko bEKIC( I<E.:ttb Jobo5oJ

a -r: B.

List all or FBI

TDCJ-ID identification numbers_you

(n'TumQbC~Jv_e:<rla's[)sigiFp.edUto

you,
It>

iatl,a!l"o

have ever been
wn to yo&u.nd

assigned and J)
71lC..Y;b_

all other state or federal prison
:n:f-.~tQt_ lf:'l_:J:l5t_S:A~b=L£'1I

VIII. SANCTIONS:
A. Have you been sanctioned by any court as a result of any lawsuit you have filed?

YES ~0

B. If your answer is "yes", give the following information for every lawsuit in which sanctions were imP.oseo. (If more than one, use another piece or paper and answer the same questions.) 1. Court that imposed sanctions (iffederal, give the district and division): _ _ _ _ _ _ _ _ __

2. Case Number:_ _ _ _ _ __

3. Approximate date sanctions were imposed:_ _ __ 4. Have the sanctions been lifted or otherwise satisfied?

_YES_yj__No

4

Y-.Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04(/1A2 ftPtaegeh8moaf 1L8 /:)
r fii~+ tLA/ItA F;;tt 1£LiE
A. f:.]b H7H llmendMoJf-/r,.n5fix !f~JdJ,'r~d its' Rottt.f
Lite Anb SA~T Y.
or to ·-'lEIr'lJ,17footnL01v~JLsn/tii.tdr-lA/,+v.HJnib5t)dtitlDltEtcAl'FARtTt'e.:'J-I--f.l1..5lAAe.b''uKi-.fc.~{LtelSJd!l,J!1tdaiJoi~JEtf'AbhuwY)xhlenPthd'nn-'Ttrt-a_iskc!K::hnJnf-if~tLwwt'-A~eui)ql.AtnSKM,vt;Snetfi:1:_rltoiet,>Y15o+d6_~K:en~K,dY1rf'ft/c/Af.ieotAti>'lbmr,:i:Dh.-f!J,ffs)v~-t,AJS_l.JRtI'st!~InE\mSbJetliPA-cAne/ub'Ond-sfltitt~o#lLJTJD]UoAjNJYA~l')f,n~t:A{r:1dtLL5IM\n~:n\TEolnotrDJ~u!f.nAuCJ<J.JAJttl:AAiJ-q/K.ilAI;,.h1jSl~Jd1uIlbl}lliA0~iJhNncl+JJ.DMt;k~tdM~cJNf)hY..ueAeJf2h.3l.Mki1'aV:~1S;-/J!h£f5AlILnndJtMrist!ttAfdl:~tetlAtl·:~~'ANi~lI6.D:ACsfAAl~J~ iJiJeh~,+lnhld.vdslePefu.Ndl
(S5k~U'~Ul/P3A71lP!.&CnZlutnu01r\.m\nl1dbu/"brue~u\J~Asudcvsd5w~-nf.t.icMtG ue\udfb\'euilAJAtte~(unlfJ.teJf}..~T-l)1.M:unn2)JeHnnA~lo3etdlAMohdStJo/+2d'-/lPflt?.lio.hlfYLJn~l.hhuJfis1Jt<51Ju~.d1'+&eh.it1?5.U.5(eX5lbfi'ileeuAi6orrmL.>hn\'.tfB1_in(A.hffwAij+f.JMeksenVJ!'·b~ls5)l/d(teJt~cRh[~?PoYnWdl9ifrLnA,rdeeo{nIejK1Jd~IhLmKAMeSh1vfrYEtre/3JtJ#feeieifn7../rh1&ut.nvJt.~idn:tnJ1.Je>,'Ir.f-'reea6d:fdFA1Afn:1s/nLonE'lvn0-5et!Xf!5herAc:l_vlDtJ.AdiA.t/.r~7nRte&MJflLSWl&WM_dfefP'uj(bJGod_AlJbnu't/rlnlCt7LMStJM,dJ.rfrlt7AtufL/JJJrn;A)lrI.e,Jiat-siJP/uetlnrA,+nMer1tl,ueA+t1JYJ-1/tjl;duLIL~tiwDSrb.)LA:;'.nJlFniflI~ldJ/Abi1ru?rJdLn!I1A~nJ1eI'hiH{{J3.i~tt1,'I.5~\lA1:./,&flJ.ln,J'YlS&u'RfhtX~e/Jtutbe-HInJ.ntIlMA,:el~;l'ebh.NSJd;.;.~ R._..J;t5VJ'Q,J5f1ui_>hs-fE~U1rfK~P~h-ble~Tf/r.hl.lJE1e#r6hA:df[1~1/Ln1ftfffAf/k.u.mu.1ieO;m(.S6?«l1~tcuhf#rrLU1ferAfReA-e"etY+At&thJa.l}.be/loJIstuLtJhefAcmn11.oo:'jiJ/,l-f1uIi'tAn/fi,l~rf-J!M£n-:tn6tn/.h1d.tJ>Yv'Jdf>nfnndJufetieVdi6hofm,hoAhl_/I1AtmhM'rm-~lD~e'1:Mbe'H1t)i/clJrnJJ1'ne-+~1Jhtn~L):U5uOcJtl~It<,/.
(1)

7PAKfkebrrlnothst.'5lfot·lvtiCthhnn!a~t'lles£i.~De6f_+fA4rcnlth:Jnl1il/'2f6Mlit-~Uc~nvelve.l+-d/0~f1f2i(r7lf12-';tMAe8kmrvn~ted.HDWAooSo~i:ce.uIurPt(Jfum~oAoAAefiurtln-'fri1teAS'tP1roeJ"8eJhl'trJhrY+FuntN:,ihollsefO!r'efJdJu.I-;'Jiohn'LfilehfT-,c/rM1XAfmdSe!iocJD.fcRlJ.E~-o~wniI1tR.~51J1ed{110~ ecd/AS_0lle4IlIr./eteY1~KelM25r,.S~reP~n/mnlua)Yr_g{~oRfe'rhlJhh9nnioA/Y~ohnvf6Mit6i?1!rl8fS/l?hiUtIe:'Jfl.ndJ'lAAttbPf;lInb11~,tC-h6 idm

t KbT1LF't'foll.56<vJdo(FeAr~rnh~e~ /ebJ/AADJV$nt&Afiolftt-AfmAf'.rJr+5.Mf5utthf3(_et/O/nmARfh-~.hn/bMtdhdr,rKj5/Jif~i)b'~{PWh'hfuItIheJtIMfDfhEIlYA\5(zhI,Y'A)h{JfVT;ueo't'rms,_r-i'fe6'~rB:/ehuRJ~eiielAlllalJl/nr~IPddtJed~WtiJ/nd1'Itl!1fWh--.Jib~ .Mnjebelfl/n/thndAeHdt,U.U:~-e,IA~:,nnfJ~Jrnfinf.JbufJ<t?rlo!uft/lnot6lndth1A;1dlfi1h(Siu;miKMef~~cd.nu

4 • 7le cb-e~r1dAnf:=s 'L1d.'fFtr~nce tiD t/be

l.J'v/r16~hn
hi6h If/st..

1 fi.AI~ 1 And
cf'fh(J,'cttl b

JkA-I#t lJnd JAflr'J' ~ },e_ {Uf1l A ~ub5f~toYttl

II~A~ ~lhrr~J.fe_
ntd '16 mi'. :Jo~n.s~AI
i?/s( of SEJE!JIS 1-Mhw

f .t7'uto0_ h/,~"WJc,'(c/$uez.<e,Wd1!K.t.elt.JAbJtnttJ5r'ooIlfAlofltttJtUr'/fJb~J.Jt~of/'nnpfAYd-J/hfFeJAetifSehr:JJes~rnkef.i:js~hrW''Iief,&A.ft~IessdnKus-celfo.6eeA..hrr/J'Ji/-hnMLitM,/+l'ehYF1hmr9(l)ilAMtfnK&/tYA!51f1Knehd.l,l..~~J,l/tl'AJ~JJInil{lin,/6Js

IY1 viHnb "b1r6ef. 11 f:';:)K tJf 1-M-Lm .jp

/his b~IIVt:.

1t1J1I/J,IoA~""/onfDcbfeP1!r/l/1(1.eJJbnJ.fl1mjJI;JnP511-fh:6Jh'Isf6/c/l/mJd~ftti.~:JJhl.is.W

D+ MuM 1111 etish.nce_ Jhu:J [)(IJ/11 ~e ~ IHJ &nhm3JRA-~ :3hndArJ.s d'

J)e(enc.t'.

SeJond eLiu'M FOR tf&JEF B. KE.Trt-li A+;b,J
tor bf.JUf:f-l.1>"iDil1'.osv{mMsehPfSfnneJsr.Xt\Aot1Lln\nJ-ebAirsrl--,'H\\~JtrhnblD:~ Vdn&dtdiJM'~tc-/+1feliqIKNn.if-ni+sd.to.tALA.~.ldJ1uf1ntff..fLe.Jf,Jl!Se.lrl-l55u:t,5i'utt~;onLl.,A1fnft6v,1so/61--n-b-fr1~H/n',£nt'st-e~/uV/fVhtofYleAoJfn~si'<lsIu!CM/h).~(5Kdu\ eA5Y:o+LnrfkAi-d1JAhU~,i'·L-/Adr?h;iA.t,nle_.f-o_ntLArN~edtJ_r:AfiituA1+fJrnee,dn~'D..Irjt\'f~lV7WrscfLlrbdtuARi-~IfeDfltP/mM.wSo~ArAnAf-Kl.Wt,"l£:Ar1l{a.5&,tb-
lUr)o1t?t1vut,lbtAr~}o;-(OM(.,.Aflft1l\blqAW~~kXf.I\.ndrd'AUiAVltXfltk.-o'CtfDe.VSJ)f.W}eLit'h~l:he.b'n.rie&\.n-s6fhtJter>_tn~n'lJJ.'l5tntf-A\5LJAt>t.~ttn..A.dJ(,Aoid·hMn~'c{bmJ/~)5llucboRP'JllYRfIe[1.lIfbl)l&vlLllioniJ.nJf))6JL:W'JI~'th:SWts'.OAin:-t-/56!tkrhJlk'Wed~n'-/J'-

l 1-)

JP'tf.Ant6SiAlKArl/lofJnhtnLtm~bDd{'eoWlSAeW...-.-Chn.i_~eJtdm?ae.O1s~ude+e./~l"Sh9nnc\4fAal~'-l:_L1tl;f.-d2f.h-hF-hthclufe\,lv~lJl/f>nh-ir0-,folieA2doH5J_7b6otI.2hsMdL'8IlAA'hl.LofcslDDllt<fl/llotnff~nelhcLJstoeluDo-~Jk'minJ?dt-eenlh.fKbnA.1'/ltr1n6sn1.i:.e:Jo.h8'otCemdWr/.iA)hF;fIf:lhRilnell>esJ.1d.fA.nt:1lt;ihnPwnn.iMIdrdJItTw~A/lthX!R:cniMJn.SicvdJ6+lDhe"nI.S.se~.nofunJhntfMt-C*lAl1nnlI;£-f06And~/t1~.0(k4rs4mt/sA/nlu1'l.~bta2hi:'l./:.tu-fJlti'Jf5:Pfnlu5Uta£ltbW.lgfh.e'et!il:.nt.Ar'»'h1tc~1'Yl'0utIt1n.J1efc1o.5.eJA1n1olf \1~1hM1&.n1h8,fY.rsnMS/dc'e\'nlfAivt6ltf'\nUu\J~hLJ~JJu~,itrhbA.efJu.Sttn~
P'AAHl7e'-XlfAcniJ:AlirJ<hdtt'-ol~1lAhndt~lJTk"tes/1n.Jfu1flu.~l~}eeht1:lia<tlrErt)).fxf~ 4,M.~f.~Ld#PfJu,AeriAu)u~AntVnfrj1eS~endJ5\_LMVltaL/.h..kumv-DJ:rNel:vt3trAt/o."5~1..t,1.i.o1J?6~.CiAe5At~fmn~Ao1+L'Ith1/Ktl:'nJto4t~~inntl-nJhoofhhtnwc.tLIlJrtYtlhlJnl~n.~ hhtikJ/'e.E~u5tr,riltLc1sA~-'f~ I/ettn.hhcldhheall}lf~nmltt- ofhnJtl~ /e!,£5f'vff·t1tJ)AfCbIi'.JIAlA'~IP{Tf1fshSlt1l'~fAiv-Lm!Aejn.lhttSuAMdnmJ~lel?n'lfhumrdnlnillrfuPk5JoleeS,t~on_nd~jdln.:ertJst!.f&l-eJ~JRhMt~~nAeI~Jld'J.6;.tJ9H~hrmr/tt,l~It~.Dz-~AStttfnjd':d. JTfhMdEilJil1A-rtJlk1J.J:uetAhdflqtnJnJVlUn/,t~n'h'lidfJMsfA!r,iJt.14o.lie5AJSltfnJ1Stntf5Jer~ cef5Alk.re:-S~hmZk~d1UIlTl!JhAlSfhI'eIE-lcJ~tAte)eo.be.rr5f~lnSlivf-r..Sf~.JlJAvS'J;feJl'dfA)td.P!eeoAStJll-!hJIfn6~Pe5Ilrn.trtn,M:/Ld'hhtd.i(JIP\,'stAeJfSA~1?veMJnn5/ou/.JfJ./t;rAf.APfkfmtd-hi-..olhf5I!ereeiJD.A.r.~n~ofMs--A11MlniiT.~;.»hd11ftiJ,Ae>iMDflfl'ent1Auhucn+eA-io-lhun/trAndf,JtSl/td.P~ASot~~5uJdlh~dnJ!nlI~?AI,L(1.U{l1//diuY'Az,SA4deA.T.~ls-e.C-dto1tLTIbr.PJlAtJAodel(ilrAf~JIfYl?rvI.Ake{MAthSr:rcAOouo-.'AIlSlH/,t5..innoo'rs%s•vDt11ttdt?'~td1L!1Nttd:.6sA-o.l-aJ1iMf.A/ffJ~t/:tJAltlJ\&fS,fib~.r'eY_.zdo/ArrJr.elnOennfdc%~/d-f+~!JfdrSAlelSnthlAtAd.rtlf/.;rOo-)qee~jmhi,n'tjr.o~lllrluL5uJ(~nsTb~ntAe;ofAclfil:&m/tnldAtHM/.6?ttYP1fIl+!lu'JoJl2oUrhJ"/hlI~f-IslJAe(SYlJtd.-f/me.v1'.AA~UtlSl ir
sP.5VcJJofi'L fe11.Jur-e5.J trnd 7tALeJ mt.50nn:sotl Af A-hf6h .f/.~K"~
1LC~f-WD(.f\-Mu.u-Ar\eU:_f1Hl{.(lfsl1.l,s-if,eJP-:~tk"r1i~n>u1n~-rtuRtteeoc.-vtf_·\m.n\n..u.~t/,hfs,J.ejlbhe4h.o'.n-e.\/1l(£bAtf_.;nSf-n,'Mu'viIudtt-i'rhLe.h!fen'DleJdl>if.ejl.~AA~nSf+~tAMS\unt4l-~!bKW~-leJhAf)r1rhrArhto-dAeAfehIr~.ou-lAe1dr)n'mG¥'vdIdJJUe~lel~T1o\iSt5cn.u1~!onDe.+JnSM9v"eufA)urSaJeJr\o4;,I1rrhJA;61~ees1~r~P~uJMy AAOinJrrtJVOmltaiArk\'ltJ5bremtJ'r/_lfhteh~n't/->>m+c_I~~PJAmR5tbu-tff-lJtfbt'olk'hAt.':-Jie-:~fIUollhAo.uotrMJJunInntom5HVee1~-KAwtJ.~J'u.Mb1~sAnoris;'A5ofllrJ.c&._fhw.te.UfSos.dnhlf"oen'tlSh~r.f6bo/lrf"o;~cnlP~PTHtYulhfU..asEe~KbA.eeJl-/l£cq.6nbilkoDAtC'{:Ufr/wJY:AehinjdllbNflt/iiArrliol1!1~rJStt.S1uu1N.-to6-A6Ju'lSiArlAtho&~nlfJllPfJ6,llitm.6tie:'ntM.:_..-t.tfI'5f
(3)

?tJt1r6lo\P~iJhlnfr9~6hlfEr[1.J1r,Rl.o5JAACDu5~1fa#nt~.sCJDCMeA1lnJe1>A14.t~\:dt-b1JrrMt2,dtf'>1db-t~Jct'1f1rcvnleW-.d1.0ldc.Rulff2ttJ;e.lJt7,-hnfbe2A~Jt8.lt:£-t.n,hIfY/.;dlDItb1r-el1+-''-o1JJIrfAcA~iflJft,ulDnn~~efAmA..I.h-/JJ.eI3~,:lj'njntnAtddfcf1/.n~eoJu8.d.fm.pkftf~:iFfxXl:ri,'lRletrmldided~ln.A~tmliKnn~u~ouST'1.fXfnuALbSfl'/nDEStf.1nhd1'f1oL1/reJnl~/.O~/l~s1NJlfn0J~ee6f/,.sd0~hi/,4hllo'l1/n,h1/v,1n'21~5A6d~dt1drP1{~;Yrdam~l//-9gl~vI+.clevAtt/#-1fJl1>eit'l#11iJi-tEhb5tof~Jteffu6(h..1r1IbAI8lH:K)tMdi:6%>ltorN~c/cJ+flH~h6tMJ-v/b~~/.l1/.5.J+=1~
.SfJ::f! 1 *'e rH.D:~i~~.rRf:t5d-JnCA¥:lteWf'AeII.Y/tot.e-/Udtre?JU)J:~A'h!Jrff/1flhuhcr)..uJfe.l~1?e:o.mlrr~e'lt.1JUtt-.nu~,o'P/Oe.rJJssl5fm?/t,,I~/AJAouTot.~se{chdGv'n_'Jetllt-1JPdrsHJfrn-Jebt.AYto.u11ltxe/S,/lr,'-h6nt~btDd-d)vI'Yy1.6istfA~J6.t?fhJ-tfeleoe&1tAr:..e6-<r.J,e.h~-lrR~btYhnWJ~'AtJAf~.SCf7ievfffJ~uDit1svlt.'tc'nAt:/Ifr/Jfi.fnJ~oi,hlt.''ni-Jbk&:L&'I_Icllf1ff)e(nl1ichn.bdlff,~Y.11J,lt1TAJL16ee+1e.is:/Cefh)InltHi6:r/!6,SoiDmrkno_,JtVte:,.~inlsAAJl~ht_os-~Sh1fAhLtdtotf.1r'I.~t;ff1lMc/If~t1shs-~tr/f<1fsIdIJfM1L'lR1-rM/At'dt1&C,Atdl?11:lt,J/d!A1'.JM~,.6'JJu~so1ie.fLb1,ele1h~-JmtPtj~'tso!~!ule-.tltnitlL,uiAnDJ1Y,t!:oDa~n.~ Jut~Nir/mlPsDedlItj/wSonto'ttl~h.:re-Pnr,lufu~ms'!tAfIJceo~fr..U-~n" ~lti.J1~r_~ ht.KYs.reIh:t:htsnnltfm'oeneAt-e.//bnAn!:b"Sbfl,~h6if#r5J' u·6JGef'& .IUe'~&uplhl~ImS_.Lest.sClf»tsfjb-M.oo~AuJ.l6AeOeAWnsI},f Yflc"liA &l#AO+h.rJ:1-hl.6t.lI-~AfYenbtIA.7ilfi1fet-/pVP'1Hth..D>IernAeh h.dfJJnunr,dns.oLr'?rlu«PIf.r~Pdoe~,,5hDfIl¥o1u.,/~'str)utJt ChA55NtMul1)(JUlJJr~'hlh1hYietJlnLn/-;-PhJ~fe'f'ctl,.u6tn5s0tBuuiuJeIY c~Ju~AJ./fe!'.hprif?.a)lJo/,nAFcd(~i-efdl/6ht1.airhb~!~~Lnl-d5tofuEl1t'A6o1Jr•6~fufic,Als]?e1lXcwAC-eN~Rc~.n'VJdAKo/e.Jel{'Ilinde{h./JJf.;WALZboeJ/~~ n'eeof'c-O~AdAJf.?m.',-~lJ1)mSon.~unA1.L.cr(~e:--#!~eMJs:JL6..u.J}/MtStl55_ZIfftAP/bt--e.'ltdaLnu'1r!Pbem.lhi1ElItldhJJPl1oJfdAdAlt+{o,m'Jeorf,e-~tnJ'/Ad/-Jrto!dL'hJthff1K'Hn,.-e1tt.J.t,,~.knrfe,b/6£5ut.e.tot.AeAooh~.tevu.t:S1J~efdrAm.n-e-eem.J.e./,"u-otlArds~tJ+uDA/v,Al-'n1n's.il/:,dqhh~w/-.17.oi1tfl/'A7f.r1/IntRttf!ec1Astt1h1t\.w:hnAth-6hb?6,M!~t.'i1dA6h.ttJ_l<'ie';~,lt/le-A1JJfem/dibJmvne1_MUf,/onS11VPIe'nrei£M659hk//Irn~C-/,'A?Y_»F'nhAPt~rfrY-i/tn&fLrt<f-m.en«'rd-~.J5e1truJtrh&tP,:AA~JtoW.reirt6..n/,nf~'n-eAnsltd5Yr'lmer-...l1cfIfl.6tlo6IloU¥IIn+cudOJtfJli-.kL~!M-.JSf/~J«o1d~JDm/hJnwJll1leiJIlMDWtr1dHiemteutJkiI:lcuW.r5v.enJY+J:e._n.n~ne{o-+~e&rnfSkfltfs?:I.:b"Dclinnn.:b6lf/h_~f+6J.ndJb*ui.llCtl_tut'Jl+,AAu~fl1bbld:K.l'.AfUricJAme)~JAHPA.n.fJP;,'snfut.165t?Wltitlon1..JSl1o1ne.!(Sen&rcA.no.lh1l~eS-.0./lfI11cfnif1.pjJ5L'd:t~fnl41/:hWnoeA-t:J.llf~iJJ'l1.,jtltJ.t'fMa's~IFof5,I,lfAfft,oIl»t•i~fJen:dlJ'•1ctd~
(_ 4)

» u;;, itJWIJ Ill T/~ cd1hie1.e.Sf5C6_fr-aitksnt.Ce~tb-bi4AE:1-dnh2L~~-1.ifcteYAfv1.iU-6Y\l0_~~l2,/ioh7fn'20,Wdf8i0~thohiDttuuKtonf5cuf-JPul'bl4mfI,n"fuenionl/rt~Ft1nv1)'A(8A)h,.nIeSFu.uie.lefx~dO.ntkeri/.nrkLilnlTtYdC&dXhAtS.>'dIflDin$lnr-liothitlnn'r.'stb~1liC\0-/AA0E:t+4.mL./:iH1of.'.or2Sf..s/,U-oAPulA/aRn.1ngi.d~ed.~/l/1Jfd2Pr,mldAoTtt'f./nns,1•J,d~~8}m/Sr~tltuil-tcnJl_fnrnd.fr~sDl~o~ 6hfj/

-n;Jtd PJA!M .G~ l~ue( t_, • ~~ b~f AtC- :In d: (ft.:{~1\CL ~ 5eR_a'~
me n+AJ ~l'rlfh tJ~d5
E:IC.JrHt ...Jtm~tdmen f

:lrl J)ui.st'on/Z.~1h?eJ_Ac]U)-e~dM'.Kf\. ,J+o.h.nS~oL(i)vin·L.b\.H5tfho~n-e1veLriCth-iuSJWet'\f11 lle:MUeJJ&f~It-J1.ox·'lnud.J~iAJ&t'

I-s Itt\ E.t'6Atf\
c:dJue1J1e'f("~AJlot,fre/tlou/.ns
.hten f..JJmi'Je-IJf

1l~/\fthlu}ell_nfh'et-df~r-l1tdtiM'l:AfI6tJtJnJI\Prtl~''ItLV...l/~o~nlft~J'tr~.fVPt6~.QkodrnJ.~',S~Y,n.JJAfl.,mef.\'diP6hIoA'IMJf rJl.ItJI.sijus4Ehhr~nJt-tSflA'I;Jntrnddf.shutelJJn'eWf~n)/'DJAfrun.oI.SJdnAlM..hrscnAf.A~5tt-dl

Jl..eAJ*' J\leec/~, ~ (Jrlt..in6 M\d 7ur'\/ShitJb hfM bt)/W, exJft!h1L ~):tA.t~

lm.h'ne.J'I1enf hA.i ..ftrfDu'llf &mlrPml.s~d ht.s Mt11Wfl 1-kAJ/i, ~d .f:t.,'J It,

EAlSuie he is 8frerf{vPJ 'I !had AdtRu•f~J 'I LYt.,q +e.d J Alo~ hA.s Jlt'Jirf

U~1loill'hOh\/tfAeu/ehftiI.eY:-ncLlrlJ~u5yr~fe?0tbejx(Ar-d\t:Jiu/fi~Jl~r.IJftnolpsJm/onM~Wt6S'b~utd1e&~AJ1r,t~Pc(pleD.(f/seIJnsl~Arl6,sni/l.J~l;JftdiriA1i>oA-YnrhCofh'ot.JrLn1cffM1rfso'e~in,_flf'-nalr"7hhclLehM_~l7tJ.4flA1fhnteed.l~.JJ?eeJ~,~n.J'InMf<IiAu.-c:1..hl,rttaIe.LYIf,Jl-+TAiuSnernme~AsL~feuttuJ~.nm..r.e'.SnilsY+lh6,.'.hcY~JfRflJ-loelffeAhRsS.-euuorS'R-tJotdeef-!eJ1h~sl~M?Au."ni-tJan6-MJrt-~I,l.-kA.te~.PJ~'I

I':>. lh ~ J).e.fl.fldA nfj
bt.LaU~-t- 'k.t 'I /,tvr_ AJevet.. PlAce. ltia 1\Af. SohllSZ>O ill A-
IVJeAn/r1~~/ ;:&,ve~H619f.otJ~
~t:Que5+ For &t,<..t. VhAf Vl.e

ltJ.nft'tuti!. .f6 he delibuAftl'l lAdt'fk,~n.f

DX.clrrul tf.haf men
rs~ C},:Ah,'L fAcilitY

hl
DJl

J.ktf-J..J.h nLon,'fb,5 l!.tJnclucftd lrn'l

J.~rtnfiolonIJt-~isr-In.Itu~ol-JiAi-Pk/etr..n.

tDmPIA/nfj
rind Sens..,, f

A-nd
cl&.v,~+.i>n

i5 111 ~J,cf.'nJ, ~ev~re.

A- l/eAr !f6o
~d IJl~;n

he WA.S
~iJ 'WM£-

·:r_M 70 TA J 7 SPIA.f;on

l'.-lDtnr6~ftln'.sr~~tru?l.5htlechroelocf.../Dt' mA-IPi.tfbll'4(mJ.,,q_l6'-~1!.AfntdrldA-.~s bAltf:~.u.J-1
he h11s Lo-s+ l'tJI &riP EJIJ ~ellli+'l And !JinbafjA
IJ.iii s.u-,c./aA-1 1/iou6h-b h1d r be.A-Iiofl5/ ?Ar~tno/4.1

A6Stur-.u.vddelrtoo~mrt..f£l>~ f_Nil"6fl'h_isv1:svs)uloAAnr-1~l5b-1+WdhqhAl't\.tnU\Xt:ii.irsn_A.&t'tf:L'timU'?.:SItlfbclehhP\t'aftort.AiSt'tIee.d.V't',sffAfLcrrrs+_/:~o~JtclV.P\Sadn/eb?InJ~n'vc,JK"ht;u1oklMol~tt:.

(S'J

·-ne.. en *' b d-'cEl£ttJ'Jrrci51ffKhAJhJ~Ifihrt'onlKvfvoe8A7o)1\erfnreMhJldLee.b6eJ_ne1hnI_d.,JIftenl1D"~dr~ttld;hfnnS:ht>I1ef/.L:dl.?f.JSctAt4JUt1CYfSmCr.il~.h5-J.U!.otd-.AUJ_a'nb~PJJs.rK(ruAnbS-sttf'J-nt:em-vfb.hef.lhAfnet1ILj!n.tn&JAdsin.SL!A4/tA!fhJ Jhtrn5l-,n:hJ!Lr15jJ1dnrClt..3fr/Jke1Letl~DJ2S,We;LtX~ /untAhm-li1fn,hndc-unJtffht'1v1JenfMIlt~ euh.C1a-R lfAh:e/*#P.~0_:etj1~JmcdJZeInltt2--i'.Jv,/(ctl'J7,rJ,duoWi'Yeh;eIJU.2Znt1ft:r{at-hfshnr>-8CJ/!fIttL6sf~:6-o~Id.t.~J,V-h:iuf-6JI1j'JdoKJP9D.nAbLr-IdfRAln~ .;fn&t1oftLendu"-I~te/fJItD1f_cVes~~:r.u/s~h'uedm,t5oulIAl1A'A.t6.P_/mltl~lU:ftM1Auo-JlAZnk'cieMhl/Ll:D~--t-~eJo/)8n-P-dfhlr.11?eer,elI/tU!./t'JR,z~'~_~tASorAdJJ1rtntK_,.fuA~-bf,v8fDJGl+etlJbuihJBhe~tt:iLumdltoJVinJ:nlt/tF.u~}\deo,uJjh~lM/\uf)i!A,l1.lrutlets'nrPvr'~M1,e~\I-l~dft/d,.J/-sls,1v_~{'(inlt/Slm,i.lef~eo,l~fndJ.ntJi~Yun,b5n.:imO~cMr,~fTYtllJbJettmos.~vet9eXxhJ~nuS,.15ellentLn.1S.tm'nJ£eJ_:1lfJlmnAhi.lA~DdfetStrln~!lt--:fK-l1~t/GtDnln~-dlho5ot1f_.:n:d.c.nnte1fj.ul~oltAIil.hlflkSi_11./Js-Jhnt:uS''-JUhJ)JrwD0tltrJH~da-AllPft.l/er/'foesMi.!lns0tiLiI./Jlunf~fc1ce4tt.wEou7/ha:1lflJ'.noJ/oAsJre~trl10lht:u.uf_S5nfhi'f2/le.u~~iVtJMI7JiJumshAL't/sM/1l~D.lf)BJlbt/Ju6P~Jl./,Jelr1ZPo,ihLhlJr't,f~aefnL'jtE,f.f!JF~te}~g.emHJ~lnhe;5lI~pemeflLf11g~oSSe:.xsleJM&lAAxb1r~Ppt~'tii:h.t,Mt/fl3U~SctnnnfbA]furJrf'!mi£Klodi.d,'lJR/-eh~lde.-mhin-f·JAillJ:tA/hb't1dfI~n1rltfeP-eR.r.wt.Je/''o'8~In.d,lJh.{lMb.<:tnnftfi!6h.TlmvJJAilto.u-~uddnI5~hlAfeuhMhllh/Iuti.ImthlYmAidrLL,uIi7ttthJMn{JJ"i.ic.JM~it:lJsr..fJtt:/>thtIV-l1.sJtS.bI.mfnd6J,M-~~jbttJJi{tr.d/;,
KUU~KMd1r(MOtlWM{\PJP1h)n){Cln,f-e.fofl5\hfd,-no6ektld1Mfh'.._+\o\Jrr(Jdt_dAlL,hodA1'wi~nf.+-MfA~s)e{\!6ti%fJ.i\AsoAI.r5SiVemohnf~J~l~:·4w.,lArs~'0qf~+--&1edl"heh--.Mf\\l.s"fttp.dtI.tf'tl\/1to}LirAtJnhfstJnp.-h.tmf.f.oyJlStoe.>Sh$,)tu~cJd.It,Sitv//nSh)lnm(lcL/;t)Jhl,d(A4..d.<teu~e\ffi~t'.-eJnlJJful~tuiDlhiV1tl)ro+,rq6tOn~tu'Jd~ltnn-e')td-f-ffs-(c0bJ5letttf-snA1Dlrh//Jfiut\ieo~nh.H'roh_r)loqmtfZheo-s;et,r,.R(fa//J.Ai5i.uftl..Js'1W:+-AWr~:1.fl~:,e.~u,\tdDJfftA!c?rht.'h.lJ/.1IJ./o4-JArnAtD,t~4r~Ur,n'b-/~SJr.Adh&o.',sRreDh)e'-rhn~ru~1!t~ftn-/-LAlloAh+tIJ\nckvhp~e:edf5.n1't~MCtm&fJn~,d5fdfefn.er1"&..n&hr~utRhtPIV,.mlAd/Hr/~'i~U\nf5!oVw~mJsosuai~sbu~eCAI"..ldA~sEur~fJottrAncldM}t~fJn:-erIoeo.ItMi+effh.Jr_dnfNm1h!n~tiJ~.bttJ/e.Jsf-M.r\ii;s'ifc+rl5J'l.h'te/,J?~Ar1lSl'?tt.bnh.~~JUlst5lfbtntthli.thJlni~/sf~Mf.oi!!h:rJcfSUJeJ./AttSl.-1.ji9eSf'hbl/u1~1'nt+.t\~j?/m£1~uJ'o6AAJId3J1;If/e?SPf,J'I'-t1RgA,>vdJs/ieg0'u.1jitl7uA/JJJbt1M5(v./hi:~.S35Jelt/T.tWtK-t.uu,'m-..\.'Shon.t~h,n:t,ucl~J>5,udiG:s~r:A~l,-)'d.fh.id}ll
{~)

mS&LuJuMf&ft~eJC.UAa~1se+.e\:_voC4lh)do:1y2t-iLcIn.YvLrh-h0uu'-~2/nl:S7o\~l2.~'8.nCAhAc--\D.5s1b.olcl_.u1:.TPmuS.nnerehfJ~ntwut.~i1rs.l8A/hJ~ml.Freknimb'leh(d~d)ni+n8l+?nTrAAtX~r-ISHn~D~o.no.1~n:MJ1!,1J'0lh&nl/-0tn~t4~''./.t1fSs2'r+~r.,roPt/&~~alg,hebu-iJ~Mx1.nJ4t.ifo7hUlAfe.hl_1-/.lf81tJ.J1lik.l,tsr~-~nbd-tlf~ll+etrtl.S:s
Mf' ;(l lf rrJIAtiDn IJ'f f'"Y)£,J2>h11SPnt .s Etbh+h Ameodmerrl RtGff.j.
?~dAh'iCAZtr:le1~o'E-rsPtn\;te_)he11nb»t,(e5..t&7s•drrAh-reA,AlnS11dtlMfwucm/l~ot/nAitlJ.~ ~tu~(ns-/lHvL_feho&te,P'l.>Pl}t.Yth'Ir.lJhDlIJ'JD1Jitf'veJIU&o~tl1VT1>&\rdernA,a\r~1_nclfcYtJ~Y~ vh.e-,_DerlA\i.htduciSl~kfuoln)~M~leoD1ofe'~1?f_~A1_mn\-imor1hAj+'tIeeltlAeJtnel!'er'xfm-+r-f.nonsA/loeSA~eitfo-us.1a;eh"hAaAunn1rbbE~Htndhb+sulSl1/ld.nnthlcA!:i~'sels(e6J..~m\_&uf_h1lltoM~ e:,r15-S(lJ_tt-i)e\".\Ad'/dIr~1.~\i"n-net1t4IPlrdf~19JI-1iel-l)ntre1iS\f1~ b5'(LtEuJ~tvndAt>4Jlf1V,'Jtl&'\tlll?4\/fA\·t/-~~uA'~\fotfellS..nunJhesrr~...bXteI...DfbJ~':itftftiooI~rS\Nnr'~<Ift-Ai1t7M -fi/t6uu-uAit11iEldft/te-\Jhtin\-MAn1Ais.cD1.le.c1:-J.P5MiJ1shM-JJdf1~,A'f-'Jvh-otbtA'C.e/.mJI1.1tlRJ5'L.;eff1\.fJ-eeeL//hJ.M_JnhI1u&.&J'J_b'dtJ')\.1Il'"))lD'm+hJY~R~1tAl.tlUAhMl#e.rm~mnVn/f~1Am/seIfAUntM1eiItnfo1<Iltfnr.\n~flt.-~ftwetA~t#H.h1nlAJf-.iAfulosJlnlntbnf ld~A.n!K~P..c-~n:renHi:dd..+I.uMtln~9ncd~ r.uu1A4-ei1n-tq.1+.-v.el7S-.r:Al.J\1j.M.~,t[L~,nkplAU.till<J?~)\ILacwA/S/lh.1u;:.1:nr5Lf~~t~1i~PonJ'-1At~Ht./ot.\JJJeJhJ.m_J?sL'teofhC]f/.d4)offa.:rfsAol:ue-n:t~sL1~lt\~f.n/fJlo\JeaM6_J~'?fJlleSA<~.~~-e_tJe'ttd1eobrAKh1nf/W1.,5lf.SorYlJl4el>~dtAfn'oleiJt6htn&.!_5etufcchlRl&&bft-tL.eeS.JJ'dn--tIAdrbtr~/iu4ehibcOeu.~n:i:nll:bbDl1/1t1hdm\lAd1.hn!dPt¥cJefcJJ!/..ltI!tAl.k.I
1[['. ~eLxe;::: f?@ues-k-D
01\~Ue{ frWo»m.E%R1E5fV~~£~'*?JAtnl!ri'Re&uais tfJ.e ''l"kl/116 J 1AV\ACIDoft5J:DAt1teAW.dn1.d1%A. DeT.MAe-mI'dS1fe1l5x_AiIoc-t1Jtn'In5IJfttWffll!~5lffmr<AP'(fL,,ACnt~,'~innueL~d., .bbdet.d,oMeFrffllhh+edr'tf!7hThelJil/Mf ,ll'hA/1A;d,ref_:n?:oI/'n-,lJictueJ1£1LSPI~lI?l~rh1l~1f.l..JtdttasJ/
(_ '7)

z.. '-In L

Cas:e:r_4:.1:2;-~cuvc-.02l712r8~HDMoicfu\mAeintt 1I{8

Filed
A-nd

ch-.e((/n dA-n 1-:1 CJD {1, P {;,flow

i?nuT-XrS.~D.oen~n1e0n/0+4/i1i2i:JPuat~gCeII1o5tJofd1/8i~.et.-Wn6
In b :

('ArlrP!)ln.5.'1cT~n)oArfn'l1n~hs5d1e~SVskA'ttl--+n-.deentMhcf.led~tf_;rVll~ {pb,r,fe}u_, .iSett-JefvMvtfe1.i.1Jdlfr.t/'.ff!.ul.JtI~..+!Ao.ud1%..J5q~oWfh~d?e0llrA/.s1-1ln61tntfltb'?t.''s5A-fSte.DmhrreR~cJR/fnE1JJlMnnlAb1.-J1AU

tB) Tr-~
Mlhrri#Jil
h+cllrt'f'

Snhosllttn.lfoto'!%tbl eAA_.sS?-lh1Ae/-i.1!.'Kn·-e?l!eet.?l+mi.n~Hb,·-ottMs!hfc,:Ji!Jt)JllTttft4n'i.tctlJfI.CIf.?otnJ.ufr::.esoh+eM!oAd-e#qJ;,rel-hncl

AlP(rct5:+)r~tsi!r_ihMA1fA:re5l.rnf.klfrf_,'rLI1Dm~Me~dt.sn~&JY;uIouA.r1/nfDtsJ;-~ehJI-/e+t_d~hAA-/lSi>,PtStrou<r(hffle.A~rif-"et:/..)L),lM'I.ASestduIlfJtA~A/d-Inuhdl1LtdDnPD:(s,f~-'I-f!ell)tf,1t/veALftiL

+ I3WfbT.h,'m'cl/.e.'KJ..retu..~4fo-~-ff_h7nar-RA!·ltoctnt.futl.~etco-.r..t.~sJ~u1".t-tJ;'4~cd+l,s~~c.5A.1-rt\+.DdlfslHLe>D.M.d,v~e._5tiiJh0A1t1+>5 e~t~JkDnnddLAlclnr--1n&k+1:<ui.n4g1ytJJ\n~:~Jfu/.Hfr!AnJinkdl

tf.

C:,rnn+ ~ut.-h t;;,..Jher t_]U_~+ lrnd ProPd.

'2ehrt

A-s fh~

&urf 1\\A'I JJeeM

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 16 of 18

Case 4: 12-cv-02728 Document 16-1 Filed in TXSD on 09/14/12 Page 5 of 5

C. Has any court ever warned or notified you that sanctions could be imposed?

L _ _YES NO

D. If your answer is "yes", give the following information for every lawsuit in which warning was imposed. (If more than one, use another piece of paper and answer

the same questions.)

I

1. Court that imposed warning (iffederal, give the district and division): - - - - - - - - - - - -

I

2. Case Number:_ _ _ _ _ _ __

{

3. Approximate date warnings were imposed:_ _ _ __

I

Executed on: 10 "" I - I :l..
DATE

PLAINTIFF'S DECLARATIONS
1. I declare under penalty of perjury all facts presented in this complaint and attachments thereto are true and correct.
2. I understand ifl am released or transferred, it is my responsibility to keep the Court informed of my current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit. 4. I understand I am prohibited from bringing an informa pauperis lawsuit ifl have brought three or more civil
actions in a Court of the United States while incarcerated or detained in any facility, which lawsuits were dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under imminent danger of serious physical injury. 5. I understand even ifl am allowed to proceed without prepayment of costs, I am responsible for the entire filing fee and costs assessed by the Court, which shall be deducted in accordance with the law from my inmate account by my custodian until the filing fee is paid.

+o Signed this _ __.l_~_:-_f ____ day of 0 L b ~e._

(Day)

(month)

,20 '~
(year)

WARNJNG: The Plaintiff is hereby advised any false or deliberately misleading information provided in response to the above questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limited to monetary sanctions and/or the dismissal of this action with prejudice.
5

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 17 of 18
"To! Stmthern i)isi--nt.r- to.u~t-t ~ Iaut.s k:h. P.nRPus ~rt~-\1 bbJa'SibJ
ATTAJ! cbts+~.c; toute-r C..Lftl(

R~m: :fode..i/c.K r, :JDhtJjLJAJ.t~:lif55959

fliCK l Lt11i+

;) tfDD WAllAce ?Ac..l< ~d.

NAVA51J7lJ, --rx ?786tf

/)ubi.' ~ I'.·J,itt. d' ''tomPhiJnce" th?ended lomiii'III.P

~11ft~ /{) r 1- /~

f!Me JJo, tf-12 -:; 1~3

JJeAt. L/~1

i

I Ell) eJ/)~ E.d :I:5 l.)JJ f_ 11 tDm'lt/tule_e II IJrn eiJded f!om p1111n

r KeGu/rul
leh-e/Jt.L

IJ ~

thJe_ bm/(f J4-rJd Its ~ 6~- ~·Ju} ,',.) Yhl~ ~~ ,',J
.etJse IJo . JJ-t;;L-c:l 7e:Jg. (,JJ'-HJn 1f 3Dd~q deAdl,'ne-,

I.

£11 LJojUj 141 SD ls Dne. ( J) LcP'i "-fhaf J: Ast. lfau

'fO
rn

lf

VI e.Jt~e i(et'utn '-J!o tom"P~tt~fs 4'J,iJ&-.

Me__

L..JJt-h

lJ+.e..

~rt aJilft_ S-btM.P ot

L. A-ff,qa TVl en+5:

S-teP Z briev-MCL
utfer ·~ Jud6e_
~MPLM (\+- Cwoz,)

S~tcu/~ <2.-~ ~

Zoderia<. K. Johfljv() 41-Jif55'JSI:J
'4a I Ltni-f 2 tjp() W4ll Ace- ~CJ( zJ.
NI11111Sf)TA I 79.- ? 78'/AK'

Case 4:12-cv-02728 Document 18 Filed in TXSD on 10/04/12 Page 18 of 18

FJoM .' gj)Ef't'cl( k JiJ/-III5tJN :lf"/lf55151
?,q C I< 1 Uni+ ~ L/ DO WnLLflt.E ~ex Rd
NAVA5DTI1, 7X '718~~

'1/frfltiiJflrfi!JJ 1f/lf/1 '1/1/r'1/riJ !1 r111 ,J .. I.

111 ' ••

-~

Justice Equal

~' - FOREVER ~

FOREV

-~Fre-:ed~o:m-:-:-Lil

~ FOREVER

FOI

'n
&!

~

rn•
Q

~ 0 :to ('.J
,.e::;:;:-.·:3" ~

t.)j
if i.rJJ

-...Oii: 0

~

3:-.j;o.5se":

,, !c,-.. --.'

{j ['•·)

';.1 0

-$

(I~

"IJ

8

-,OJ'

u ~hER/'J JJicshic:~ &u~.! of liix11
~fu:l ~J,~,-~ff DiVISJ,llJJ

I1T1 1Jt~h/cf{!_L£KK vAvlcJJ. BrA I l·tt \3 N. Jh!J~d,n~ 13/vd. Kot

t. -,,s thKt'sk, ltXAS rygifD,

e c?)ft-·(

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

RODERICK KEITH JOHNSON,

§

TDCJ-CID NO. 1455959,

§

§

Plaintiff,

§

§

v.

§

CIVIL ACTION NO. H-12-2728

§

JOHN DOE, et al.,

§

§

Defendants.

§

MEMORANDUM OPINION AND ORDER

Roderick Keith Johnson, an inmate of the Texas Department of Criminal Justice (TDCJ), filed a civil rights action under 42 U.S.C. § 1983 claiming that TDCJ officials violated his constitutional rights. Defendants TDCJ Executive Director Brad Livingston, TDCJ-CID Director Rick Thaler, Senior Warden Robert Herrera, and TDCJ Health Services Division Director Dr. Lannette Linthicum, have filed a Motion for Summary Judgment (Docket Entry No. 42) supported by records and affidavits.l The defendants' motion will be granted for the reasons explained below.

I. Background and Procedural History Johnson, a self-declared homosexual, was incarcerated at the TDCJ Alred Unit during the early 2000's where he filed a section

IThe Motion for Summary Judgment and the supporting records and

affidavits were filed under seal because Johnson's confidential

medical records were included. See Docket Entry No. 4l.

References to the records shall be cited as "App.

1/

1983 suit alleging that he had been a "prison sex slaven and that officials there had refused to protect him from assaults by other inmates. Johnson v. Wathen, Civil No. 7:02cv0087 (N.D. Tex. 2005) . He was paroled in 2005 shortly before his federal trial in Wichita Falls in which the jury found for the defendants and all of Johnson's claims were dismissed.
Johnson was returned to TDCJ pursuant to a new robbery conviction for which he received a nineteen-year prison sentence. See Docket Entry No. 25-1 (Johnson's Offender Commitment Data Sheet). Johnson again complained that he was being victimized and TDCJ responded by transferring Johnson to the New Mexico Corrections Department (NMCD) via an interstate compact agreement on October 30, 2007. See Correspondence from NMCD, dated June 17, 2011, App. 2-3.
The correspondence from NMCD states that its Security Threat Intelligence Unit received information that Johnson was engaging in sexual activities and was "selling" himself in the NMCD prison system, which in turn produced tensions between White and Hispanic inmate groups within that system. Id. On May 20, 2011, Johnson and a New Mexico inmate named Perez were moved involuntarily to segregation because of reports that they were going to be assaulted because of their relationship. On May 27, 2011, Johnson reported that Perez had sexually assaulted him. When questioned about the alleged assault, Perez stated that Johnson had assaulted him. The investigating officers concluded that none of the charges could be
-2-

sustained. It was found that Johnson had engaged in sexual activities with both white and Hispanic inmates, which created tensions between the groups as well as enemies for Johnson. The NMCD transferred Johnson to other facilities four times based on the enemies that he had made. When the NMCD had "run out" of facilities to house Johnson, the NMCD requested that TDCJ take him back. Id. Johnson was returned from New Mexico on August 8, 2011. (App. 140) He was subsequently assigned to the Pack I Unit where he is now housed in protective custody. Johnson filed an Application for a Temporary Restraining Order in the earlier action In the Northern District of Texas. (No. 7:02cv0087) The Northern District Court severed the new filing from the earlier, closed action, and transferred it to the Southern District of Texas because the Pack I Unit is located here. The defendants now move to dismiss or for summary judgment.
II. Johnson's Claims and Allegations Johnson claims that the defendants have violated his rights by: A. Housing him in isolated custody; B. Denying him treatment for his serious medical and
psychiatric needs; C. Failing to protect him from serious harm; and D. Retaliating against him for filing grievances.
A. Conditions - Isolated Housing Johnson alleges that he was placed in solitary confinement
upon his return from the New Mexico prison system. (Docket Entry
-3-

No.4, p. 4} Although he admits that he is at risk of being attacked if he is placed in general population, he contends that the conditions are punitive because he is locked in a closet-like cell for 23 hours each day where there is no human interaction other than occasional brief exchanges with guards. Johnson asserts that his isolated condition poses a grave threat to his mental health, which has already suffered from his previous traumatic experiences in prison. He contends that he has experienced a deprivation of sensory, social, and intellectual stimuli, which has caused him to suffer stress and depression.
B. Deliberate Indifference to Medical and Mental Health Johnson contends that the defendants have been deliberately
indifferent to his serious medical and mental health needs. In addition to his allegations that his current confinement harms his mental well being, Johnson also cites his alleged history of sexual abuse at the hands of other inmates. (Docket Entry No.4, p. 7) He contends that his isolated confinement exacerbates his condition and that he experiences hallucinations, both auditory and visual. Id.
Johnson alleges that he has required treatment from various agencies who administered psychoactive drugs including: Seroquel (a bipolar drug), Depakote (used for seizures or manic episodes), and Zoloft. (Docket Entry No.1, p. 7) Johnson asserts that he was completely sane when he was transferred to TDCJ from the New Mexico prison system but that he has lost all grip on reality as he
-4 -

languishes in total isolation suffering from paranoia, suicidal

thoughts, and gruesome nightmares. (Docket Entry No. 18, p. 12)

Johnson complains that the defendants have been deliberately

indifferent to his condition because they have failed to place him

in a psychiatric facility or monitor his condition.

He

contends that they have subjective knowledge of his condition and

vulnerabilities because they are aware of his history of abuse and

prior diagnoses of mental difficulties. rd. at 13. He complains

that the lack of care along with his isolated confinement may

result in serious injury or even death. rd.

C. Failure to Protect Johnson alleges that he is at high risk of being assaulted if
he is placed in general population in the TDCJ system. (Docket Entry No. 18, p. 8) He alleges that there are many gang members who seek retribution because Johnson has been labeled a snitch and that he lives in constant fear of what may befall him. rd. at 9. He contends that Livingston and Thaler were aware of this problem when Johnson was returned from New Mexico. rd. at 8. Johnson argues that his continued placement in TDCJ violates his right under the Eighth Amendment because there is no way that he can be safely integrated into the system, and he has been denied a basic necessity that violates all contemporary standards of decency. rd. at 9.

D. Retaliation Johnson contends that his removal from NMCD was retaliatory
and alleges that his return to the Texas prison system has placed

-5-

him at substantial risk of physical and sexual assault. He also claims that he lives in constant fear that prison officials will follow through with their threats to have him killed for seeking relief through administrative and legal channels. (Docket Entry No.4, p. 5) He alleges that he was safely housed in the NMCD general population but that Livingston and Thaler transferred him back to TDCJ in retaliation for filing grievances. (Docket Entry No. 18, p. 9) He furtheralleges that Livingston and Thaler, along with Herrera, continue to retaliate against him knowing that he is in danger while he remains in the TDCJ system after filing complaints about the conditions there. rd. at 9-10. Johnson reiterates his allegations about the deleterious affects of isolation. Id. at 10. He contends that the officials are aware of his history of physical and mental abuse and have retaliated by placing him in isolated confinement, which he claims is far harsher than placing him in the general prison population. rd.
Johnson further alleges that Livingston, Thaler, and Herrera have continued to retaliate against him by allowing prison officials to tamper with his food, destroy his cell, and confiscate his legal work in order to prevent him from filing further grievances. Id. He complains that the defendants have interfered with his right of access to the grievance process by denying him protection and contact with someone with whom he can file a protest concerning the officials' misconduct. (Docket Entry No. 18, pp. 11-12)
-6-
----,,--------------

Johnson alleges that the defendants' acts and omissions have
caused him to suffer "physical injuries, intense degradation and
humiliation, excruciating emotional pain, and lasting psychic
trauma." Id. at 12. He seeks declaratory and injunctive relief.
Johnson specifically requests an order transferring him to another
state's correctional system or the federal prison system to remain
as long as he is scheduled to remain in TDCJ custody. Id. at 15.
He also requests a transfer from solitary confinement to a
psychiatric facility. In addition, Johnson requests that he be
offered appropriate medical and psychiatric treatment and that the
court retain jurisdiction over the defendants until the court is
satisfied that the defendants have ceased their unlawful practices.
III. The Defendants' Response
In their well briefed and thoroughly supported motion for
summary judgment, the defendants contend that the court should deny
Johnson's request for relief because:
1. With the exception of his conditions of confinement claim, Johnson has not exhausted the required administrative remedies because he has failed to complete the TDCJ grievance process alleging that Thaler, Livingston, Herrera, or Linthicum violated his rights by denying him access to health and psychiatric care, being deliberately indifferent to his need for safety or retaliated against him.
2. Johnson's housing in Protective Custody does not violate constitutional minimums because he was removed from general population to protect him from predators and gang members who want to use him as a sex slave.
-7-

3. The defendants have not been deliberately indifferent to Johnson's health and safety.

4. Johnson is not entitled to a permanent injunction because he fails to show that injunctive relief is appropriate under the governing legal standards or the restrictions found in the PLRA.

The defendants present the following evidence in support of

their arguments:

App. 1:

TDCJ Offender Commitment Data for Roderick Keith Johnson, TDCJ #1455959;

App. 2-3:

June 17, 2011, Correspondence from the State of New Mexico Corrections Department;

App. 4-24:

Summary of Johnson's Step 1 and Step 2 Grievances;

App. 25-119:

Relevant portions of Johnson's grievance records, with business records affidavit;

App. 120-123: Affidavit of Warden Robert Herrera;

App. 124-210: Relevant portions of Johnson's TDCJ Classification files, wi th business records affidavit;

App. 211-233:

Relevant portions of Johnson's Life Endangerment Investigations file for the period of 8/09/11 to 01/28/13, with business records affidavit;

App. 234-264: TDCJ's Administrative Segregation Plan, dated March 2012;

App. 265-431: Relevant portions of Johnson's medical and psychiatric records, with business records affidavit;

App. 432-535: TDCJ's Classification Plan, dated 2003; and

App. 536-537: Affidavit of Lannette Linthicum, M.D.

Attachments to Docket Entry No. 41.

-8-

The evidence is summarized in the following narrative: A. Johnson's Grievances
Johnson has filed a multitude of TDCJ administrative grievances since his return from New Mexico. See App. 26-119. His first Step 1 grievance (#2011215738) was filed within a few days of his arrival at Pack I on August 11, 2011. In that grievance he complained that an official denied him access to his legal materials. (App. 26) Johnson alleged that he had an active case and needed his materials to meet his deadlines. The administration response (App. 27) stated that he had been provided additional storage space and that his materials were returned to him. Johnson then filed a Step 2 grievance (App. 30) complaining that legal materials had not been returned. The response (App. 31) stated that the material confiscated was material that had been sent to him while he was in New Mexico and belonged to TDCJ. Johnson was advised that he could request the material from the Pack Unit law library.
Johnson filed a Step 1 grievance (#2011221544) on August 22, 2011, complaining that TDCJ officers were retaliating against him for using the grievance process by denying him access to his legal materials and medications. (App. 32) The response (App. 33) stated that an investigation showed that Johnson had not been denied medications and medical care and that he had access to his legal materials.
-9-
- - - - - - - - - . - - . - -. ---:=-.~==

Johnson filed a Step 1 grievance (#2012006370) on September 12, 2011, claiming that his allegations of assault have led to repeated instances of retaliation resulting in denial of medications. (App. 40) The response (App. 41) stated that rounds are conducted daily for patients in segregation. Al though a dosage of Citalopram had been missed, Johnson was routinely seen by medical personnel. Johnson then filed a Step 2 grievance (App. 42) complaining that he was suffering acute psychological problems including paranoia and hallucinations. The response (App. 43) stated that his complaint about medical care could not be addressed because Johnson had failed to take correct measures to informally resolve the issue, and that there was also no evidence to support his allegation of retaliation.
On September 12, 2011, Johnson filed a Step 1 grievance (#2012006394) against the State Classification Committee alleging that his move from New Mexico was retaliatory and that his placement in Administrative Segregation (Ad Seg) deprives him of access to drug and alcohol programs and educational programs, which has affected his psychological well-being. (App. 44) The response (App. 45) stated that the State Classification made the determination that Johnson needed to be in protective custody and that the unit administration had no authority to override the decision. The response also stated that Johnson's medical concerns had been addressed previously. Johnson filed a Step 2 grievance (App. 46) stating that he had not been allowed to provide information about
-10-
----- .,-------------==============

how his assignment was affecting him physically, emotionally, and psychologically. The response (App. 47) stated that matter had already been addressed appropriately and that no further action was necessary.
Johnson filed another Step 1 grievance regarding his legal materials (#2012022991) on October II, 2011. (App. 48) This time he alleged that his material had been confiscated and destroyed. The response (App. 49) stated that Johnson had requested disposition of certain items and that the remaining property that was permitted had been returned to him. In his Step 2 grievance (App. 50) Johnson claimed that his legal materials had not been returned to him nor had they been stored. The response (App. 51) stated that all materials that had not been provided by TDCJ's Access to Courts, Counsel and Public Official's Office had been returned to him. The response further stated that the case law in question was available through Access to Courts.
On October 19, 2011, Johnson filed a Step 1 grievance (#201229142) complaining that the Law Library Supervisor and another officer harassed him and confiscated his legal materials in retaliation for filing grievances. (App. 52) He also alleged that they threatened him with a cell shakedown. The response (App. 53) stated that an investigation had been conducted, and the law library staff explained what material was not kept there and why. It was also determined that there was no evidence to sustain Johnson's allegation that the staff had said anything inappropriate
-11-

to him. Johnson1s Step 2 grievance (App. 54) alleged that the legal material was held for over two months. The response (App. 55) stated that a thorough investigation revealed no evidence to support Johnson1s allegations of threats or staff misconduct.
On October 23 1 2011 1 Johnson filed a Step 1 grievance (#2012031828) in which he claimed that he was suffering from Post Trauma Stress Disorder (PTSD), bipolar disorder, and depression. He further alleged that the mental health worker who treated him threatened him and accused him of wanting to be released from Ad Seg so he could have sex with other male inmates. (App. 56) The response (App. 57) advised Johnson of his right to refuse treatment. Johnsonl s Step 2 grievance (App. 58) disputed the response by stating that he did not refuse treatment or services and that the worker harassed him. The response (App. 59) concluded that although Johnson had complained that the worker was unprofessional during the encounter 1 there was no evidence in support of Johnson1s complaint. Moreover, Johnson had failed to make a correct attempt to informally resolve his complaint.
Johnson filed a Step 1 grievance (#2012036379) on October 30 1 2011, complaining that a guard had threatened to leave his cell unlocked so that he would be vulnerable to assault. (App. 60) The grievance was denied (App. 61) because there was no evidence to sustain Johnson1s allegation. Johnson filed a Step 2 grievance (App. 62) alleging that guards were intimidating him in retaliation for his testimony about the sexual abuse that resulted in his
-12-

transfer to New Mexico. This claim was also denied (App. 63) for lack of evidence.
Johnson filed a Step 1 grievance (#2012049026) complaining that his placement in Ad Seg inhibits his right of access to the grievance process. (App. 64) He also complained that a grievance coordinator failed to explain why a prior grievance had been denied. Id. The response (App. 65) stated that an investigation had been made. It also explained that the grievance department has specific submission guidelines and that grievances filed outside of that scope are screened. The response also stated that there was no evidence to sustain Johnson's allegations. Johnson filed a Step 2 grievance (App. 66) complaining that the denials of two prior grievances were improper and ignored facts establishing TDCJ's unconstitutional conduct, specifically his placement in Ad Seg. The grievance was denied (App. 67) because there was no evidence of staff misconduct.
Johnson filed a Step 1 grievance (#2012064974) complaining that he was being threatened and harassed for filing grievances, which inhibits his access to the grievance system. (App.68) He also complained that TDCJ officials were improperly dismissing his grievances. The response (App. 69) stated that an investigation had been conducted and that it was found that Johnson had previously grieved the issue. Moreover, there was no evidence that staff had addressed the issue incorrectly. Johnson filed a Step 2 grievance (App. 70) complaining that his access to the grievance
-13-

procedure was inhibited by threats and arbitrary denials of his claims. The response (App. 71) stated that there was no evidence of staff misconduct and that the complained of grievances are under review regarding his medications and hallucinations issues.
Johnson filed a Step 1 grievance (#2012074987) claiming that he needed a daily dosage of 900 mg of Seroquel, 200 mg of Zoloft and 2000 mg of Depakote but that he was only prescribed 20 mg of Citalopram (an antidepressant). (App. 72) The response (App. 73) stated that no further action was necessary because Johnson had been seen by a doctor who had prescribed zoloft and that he was scheduled for a visit with a psychiatrist for an individual treatment plan. In his Step 2 grievance (App. 74), Johnson complained of low dosages that did not address his mental problems and that the medical treatment at Pack I was inadequate. The response (App. 75) stated that there was no evidence to support Johnson's complaint that he was being denied adequate medical care. There was also a finding that Johnson had failed to informally resolve the problem.
Johnson filed a Step 1 grievance (#2012085947) on January 18, 2012, asserting that his assignment in Ad Seg violates his right under the Eighth Amendment. (App. 76) He also complained that the assignment negatively affects his ability to accrue good time or seek a classification promotion. The response (App. 77) stated that Johnson had been seen regarding the Mental Health Manual Policy. It also informed him that he needed to send an 1-60 to
-14-

State Classifications in Huntsville if he wanted a release from

Protective Custody. Johnson's Step 2 grievance (App. 78) reiter-

ated his complaint that his isolation exacerbated his mental

condition in violation of the Eighth Amendment. The response

(App. 79) denied the grievance stating that his complaint had been

reviewed and that the issues had already been addressed. There was

also a determination that Johnson had failed to informally resolve

the problem.

On March 7, 2012, Johnson filed another Step 1 grievance

(#2012118448) alleging that officials had threatened and harassed

him for filing grievances. (App. 79) He also complained that his

living conditions restricted his right to practice his religion and

to access educational/vocational workshops.

(App. 80) The

response (App. 81) stated that an investigation had been made and

that no evidence had been found to warrant a change in Johnson's

housing assignment. Johnson filed a Step 2 grievance (App. 82)

alleging that he was placed in "isolation confinement" in

retaliation for filing grievances. The grievance was denied

(App. 83) based on the absence of evidence of staff misconduct.

On April I, 2012, Johnson filed a Step 1 grievance

(#2012133031) complaining that health officials Dr. Abke and

Dr. Limsiaco determined that he did not suffer from any mental

disorder based on Ms. Bookman's cursory examination. (App. 84)

The response CAppo 85) stated that Dr. Limsiaco saw Johnson on

April 4, 2012, and that he had been prescribed Sertraline and that

-15-

no further action was needed. Johnson filed a Step 2 grievance (App. 86) complaining that TDCJ's mental health se~ices inadequately treated his maladies. The response (App. 87) indicated that Johnson had been seen and prescribed medications. It also stated that Johnson was routinely monitored and that there were no Sick Call requests indicating that he was having trouble with the prescribed medications.
Johnson filed a Step 1 grievance (#2012139831) on April 11, 2012, complaining that a guard named Garcia had threatened Johnson and made him take a cold shower. (App. 88) Although assured that the threats would be stopped, Johnson claimed that they continued. The grievance was denied (App. 89) based on no finding of any evidence to support Johnson's allegations. Johnson filed a Step 2 grievance (App. 90) complaining that TDCJ unconstitutionally accepted Garcia's word over his own. That grievance was also denied (App. 91) for lack of evidence.
Johnson filed another Step 1 grievance against Garcia (#2012140841) on April 12, 2012, alleging that Garcia physically backed him against a shower wall and threatened him. (App. 92) The grievance was denied (App. 93) for lack of evidence. Johnson's Step 2 grievance (App. 94) was also denied (App. 95) because there was no evidence to support the claim.
Johnson filed a third Step 1 grievance against Garcia (#2012142492) on April 15, 2012, alleging that Garcia searched his cell and confiscated a highlighter and post-it pad in retaliation
-16-

for the grievances Johnson had filed. (App. 96) The grievance was denied (App. 97) because the confiscated items were contraband and because the search was legal. Johnson filed a Step 2 grievance (App. 98) appealing the decision. The grievance was denied (App. 99) based on a finding that Johnson's cell had been searched appropriately and that there was no evidence of retaliation.
Johnson filed a Step 1 grievance (#2012146588) on April 21, 2012, alleging that Warden Herrera, Ad Seg officials, and unit security supervisors allowed Garcia to continue to threaten, intimidate, and harass Johnson. (App. 100) The grievance was denied (App. 101) for lack of evidence. Johnson filed a Step 2 grievance (App. 102) appealing the denial and alleging that he had been subjected to assaults. The grievance was denied (App. 103) because there was no evidence that Garcia had threatened to physically harm Johnson.
Johnson filed a Step 1 grievance (#2012148265) on April 24, 2012, challenging a disciplinary action stemming from a contraband charge filed against him by Garcia. (App. 104) The grievance was denied and the disciplinary action upheld (App. 105) based on a finding that there were no procedural errors and there was sufficient evidence to support a guilty finding. Johnson's Step 2 grievance (App. 106) was also denied (App. 107) after it was determined that all due process requirements had been met and that the punishment assessed was within the agency guidelines.
-17-

On July 15, 2012, Johnson again filed a Step 1 grievance

(#2012197813) asserting various mental disorders, which have been

aggravated by his Ad Seg assignment.

(App. 108) He also

complained that health care and mental health providers refused to

provide adequate treatment and that no effort had been made to

change his housing conditions. The response (App. 109) stated that

Johnson had been given an initial assessment within 30 days of

arriving at the Pack I Unit and that he was reevaluated every 90

days thereafter. It was concluded that no further action was

necessary because Johnson was being treated by a psychiatrist.

Johnson filed a Step 2 grievance (App. 110) complaining that TDCJ

was inadequately treating his mental illness. The grievance was

denied (App. 111) based on a finding that Johnson had been

monitored regularly and that there had been no sick call requests

(SCR) from Johnson since February of 2012.

Johnson filed another Step 1 grievance (#2012202925) on

July 23, 2012, again complaining about the living conditions in Ad

Seg. (App. 112) He complained that SCC officials were torturing

him because he was branded as a snitch. The grievance was denied

(App. 113) because the unit authorities did not have the authority

to release Johnson from protective custody. Johnson appealed his

claims against the SCC officials in a Step 2 grievance (App. 114)

alleging that prison officials continued to assault him, threaten

him, tamper with his mail, steal his paper work, and impede his

-18-

access to the grievance process under the guise of protection. The grievance was denied (App. 115) for lack of evidence.
Johnson filed a Step 1 grievance (#2012209177) on August 3, 2012, once again complaining about his living conditions stating, "In the past they have used rape and now they are using extreme social isolation, racism, sexual discrimination, and physical brutality and still [refuse] to provide adequate medical care." The response (App. 117) denied the grievance and noted that Johnson had previously grieved this issue. It also observed that the SCC had interviewed Johnson and refused his request for release into general population and that Johnson's health concerns were best addressed by the medical department. Johnson once again filed a Step 2 grievance (App. 118) complaining that officials continued to keep him in "solitary confinement," which inflicted physical, emotional, and psychological harm. The grievance was denied (App. 119) with the notation that the matter had already been addressed.
B. Johnson's Housing Conditions and Need for Protection Contrary to Johnson's allegations, he is not being housed for
punitive reasons. See Affidavit of warden Herrera, App. 120-123. Instead, he has been assigned to Protective Custody to separate him from the general population to maintain safety, security, and order. Id. at 120. Johnson asserts in his pleadings that he has been subjected to assault and sexual abuse by gang members because
-19-

of his sexual orientation and his reputation as an informer. Consequently, he has been placed in Protective Custody.
Pursuant to TDCJ policy, prison inmates who need the highest degree of protection due to threats of harm are placed in a controlled environment in order to provide for their safety. (App. 120) These inmates were assigned to single cells and are not recreated, showered, or placed in proximity to other inmates regardless of classification or designation. Id. at 121. Additional staff are assigned to escort Protective Custody inmates whenever they leave a secured area.
Inmates are typically placed in Protective Custody after reporting that they are in danger from other inmates. (App. 121) Protective Custody differs from solitary confinement because it is not punitive in nature. Id. Inmates who have been found guilty of disciplinary infractions are placed in solitary confinement where they are subj ect to property restrictions where they are only allowed to bring their toiletry items, religious items, and legal materials. In contrast, inmates in Protective Custody are allowed to keep their personal property, which can include commissary items, books, games, and personal clothing purchased from approved vendors.
Johnson's cell is 70" x 126" and contains a bed with a mattress, a sink, a toilet, a desk with a seat, and storage under his bed for clothing and personal items. (App. 121) There is a window on the door of the cell which looks out on the housing area.
-20-

There is also an II-inch, color, flat-screen television with 17

channels, which Johnson can watch at any time. He may also listen

to the radio. Id. Johnson also has access to the unit library and

may check out materials from the law library as well as the Chapel

library.

Contrary to Johnson's allegations, he does have daily contact

wi th other persons. (App. 121) Heal th care workers conduct

medical rounds with inmates in Protective Custody at least twice

daily. Id. In addition, medical technicians deliver prescribed

medications two or three times a day. Psychiatric service

providers also make routine rounds through the Protective Custody

area. Inmates in Protective Custody also have access to the unit

chaplain and religious volunteers. In addition, they may seek

counseling for alcohol and drug dependency at any time. Id.

Although by necessity Johnson cannot have physical contact with

other inmates, his cell is situated so that he may speak with other

offenders who are housed in Protective Custody. (App. 122) He

also has daily contact with TDCJ staff. Id.

Johnson is also allowed to receive correspondence from friends

and relatives on his approved correspondence list.

In

addition, he can receive periodicals and newspapers from approved

vendors, and he can take correspondence courses from the Wyndham

Independent School District. Id.

Johnson was placed in Protective Custody because he made a

life endangerment claim. Id. at 123. His allegations were

-21-

reviewed by either an Administrative Segregation Committee (ASC) or a Unit Classification Committee. rd. His custodial status and housing is reviewed every 30 days by an ASC and every six months by the SCC. The warden by himsel f cannot change the custodial classification. (App. 122) The ASC must make the recommendation, and the SCC is the final approving authority. rd.
C. Johnson's Access to Medical and Psychiatric Care Johnson has been diagnosed as having PTSD for which he has
been prescribed 150 mg Sertraline (Zoloft), which is used to treat depression. (App. 311-312) He has also been prescribed Amlodipine (high blood pressure), hydrochlorothiazide (edema), and aspirin. rd. at 311. Johnson has been previously diagnosed with hypertension and a history of polysubstance dependence. rd. However, he has not been diagnosed with bipolar disorder, schizo-affective disorder or major manic depression. Joyce Bookman, a mental health care provider, saw Johnson on December 5, 2012, and described him as "clean and well groomed, dressed appropriately." (App. 311) She also noted that he was oriented and cooperative. He exhibited no bizarre behavior and was not experiencing any hallucinations. Bookman noted that Johnson's thought processes were logical and goal oriented and that his main concern was finding a way to get himself out of Protective Custody status. rd.
As noted above, health care workers routinely visit inmates housed in the Protective Custody area and are there on a daily
-22-

basis. (App. 121-122) The TDCJ Managed Care Solitary/Prehearing Flow Sheet reflects that health care workers visited with Johnson every day from August 10, 2011, through January 11, 2013. (See App. 393-411.) The records reflect that Johnson voiced no complaints during the visits and that his health status was satisfactory. Id. Pursuant to the TDCJ Classification Plan, the (University of Texas Medical Branch) UTMB Psychiatric Department evaluates Johnson's mental health every 90 days. (App. 311-312, 313-319, 325-327, 328-330) Johnson is also subject to a physical examination each time he is reviewed by the Administrative Segregation Committee. See "Other Special Conditions: Physical by Howard. II (App . 155, 15 7, 162, 165, 1 72, 1 74, 17 9, 18 3, 197, 2 00 , 204, 206, 210)
The records indicate that Johnson is aware of how to access medical and psychiatric care and has done so successfully in the past. (See App. 311, 392.) Johnson reported observing blood in his stool on September 23, 2011. Id. at 392. A sick call exam revealed a small hemorrhoid with no evidence of thrombosis. (App. 280) The records also reflect ongoing treatment for hypertension. (App. 266-272) There is also an entry to make a determination as to whether Johnson was receiving medications for mental health. (App. 281) There is no record of Johnson not receiving medication for an extended time or any indication that Johnson suffered from any untreated acute mental illness.
-23-

Health care workers at the TDCJ units are employees of UTMB and are not employees of TDCJ or its health services division. (App. 537 (Linthicum Affidavit)) Consequently, the TDCJ administration is not responsible for the daily medical operations.
D. Retaliation - Motion to Dismiss In a separate Motion to Dismiss (Docket Entry No. 24), the
defendants argue that Johnson has failed to assert facts which show that they were personally involved in the alleged deprivations. They also contend that Johnson's claims of retaliation are not based on facts or a chronology of events from which retaliation may be inferred.
IV. Legal Standards A. Rule 12 (b) (6) Motion to Dismiss
Motions to dismiss under Rule 12 (b) (6) are "viewed with disfavor" and should be granted only if it is evident that the plaintiff cannot prove any set of facts entitling him to relief. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citations omitted). In determining whether the plaintiff has stated a claim upon which relief can be granted, a reviewing court must accept the well-pleaded facts alleged in the complaint as true and construe the allegations in the light most favorable to the plaintiff. Id. Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 92 S. Ct. 594, 596
-24-

(1972) i Propes v. Quarterman, 573 F.3d 225, 228 (5th Cir. 2009). Nevertheless, a plaintiff "must plead specific facts, not mere conclusional allegations, to avoid dismissal for failure to state a claim." Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003), citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Therefore, a reviewing court must determine whether the complaint provides "enough facts to state a claim to relief that is plausible on its face." Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). A complaint is insufficient if it merely contains "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Id.
B. Summary Judgment Standard Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must determine whether the pleadings and records indicate if there is a genuine issue regarding any material fact and whether the moving party is entitled to judgment as a matter of law. FED. R. Crv. P. 56 (c) i Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986) i Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When
-25-

determining whether a fact issue exists, the court views '" the

facts and the inferences to be drawn therefrom in the light most

favorable to the nonmoving party. III In re Kinkade I 707 F.3d 546,

548 (5th Cir. 2013), quoting Reaves Brokerage Co. v. Sunbelt

Fruit & Vegetable CO. I 336 F.3d 410 1 412 (5th Cir. 2003). In doing SOl the court cannot make any credibility determinations or weigh

the evidence. Kevin M. Ehringer Enterprises, Inc. v. McData

Services Corp., 646 F.3d 321, 325 (5th Cir. 2011)

The party moving for summary judgment has the initial burden

of demonstrating the absence of a material fact issue. Kee v. City

of Rowlett, Tex. 1 247 F.3d 206 1 210 (5th Cir. 2001). To meet this burden the movant must present evidence that shows that the non-

movant cannot carry its burden of proof at trial. Smith v.

Brenoettsy, 158 F. 3d 908, 911 (5th Cir. 1998) The movant may

accomplish this by showing that the non-moving party has presented

no evidence in support of his claim.

Stahl v. Novartis

Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002). Once the

movant has met this burden l the burden shifts to the non-movant to present specific facts showing that there is a genuine issue for

trial; if the non-movant fails to make any showing, summary

judgment will be entered in favor of the movant. Hart v. Hairston,

343 F.3d 762, 764 (5th Cir. 2003).

The court construes the evidence such that the non-moving

party is favored and does not weigh the evidence, assess its

probative value, or resolve any factual disputes. Williams v. Time

-26-

Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996). Factual controversies will be decided in the non-movant's favor only when both sides have presented evidence showing that there is an actual controversy. Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 518 (5th Cir. 1998), citing Little, 37 F.3d at 1075. Mere conclusory allegations are insufficient to defeat summary judgment. Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010), citing Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Burns, at 518, citing Little.
V. Analysis Because this is a civil rights action, Johnson must (1) prove 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. Doe ex reI. Magee v. Covington County School Dist. ex reI. Keys, 675 F.3d 849, 854-855 (5th Cir. 2012), citing James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008). As a prisoner, Johnson has a right under the Constitution's Eighth Amendment not to be subjected to cruel or unusual punishment, which includes conditions that place him at unnecessary risk of harm. Whitley v. Albers, 106 S. Ct. 1078, 1084 (1986). However, in order to prevail Johnson must show that the defendants were aware of a risk of serious harm to him and
-27-

. -.~~ -~-.~

-~---------==========

that they were deliberately indifferent to it. See Farmer v.

Brennan, 114 S. Ct. 1970, 1978 (1994)

He must also have

adequately exhausted available prison remedies before seeking

relief in court. See 42 U.S.C. § 1997e.

A. Exhaustion of Administrative Remedies Before a prisoner can present a conditions claim in federal
court, he must first exhaust those prison administrative remedies that are available to him. 42 U.S.C. § 1997e. This applies to all aspects of prison life. Porter v. Nussle, 122 S. Ct. 983, 992 (2002). The purpose of section 1997e(a) is to filter out baseless claims and to allow custodial officials to respond to legitimate complaints without burdening the courts. Id. at 988. Woodford v. Ngo, 126 S. Ct. 2378, 2388 (2006). A prisoner does not comply with the exhaustion requirement by filing a grievance or appeal that is procedurally defective. Kidd v. Livingston, 463 F. App'x 311, 313 (5th Cir. 2012). Failure to exhaust is an affirmative defense in a prisoner civil rights suit, but prisoners are "not required to specifically plead or demonstrate exhaustion in their complaints. fI Johnson v. Mississippi Department of Corrections, 244 F. App'x 554, 555 (5th Cir. 2007), citing Jones v. Bock, 127 S. Ct. 910, 921 (2007).
The TDCJ system has a two-step grievance procedure that must be completed in order to comply with section 1997e. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999). If an inmate has a complaint,
-28-

he has 15 days from the date of the alleged infraction to file a Step 1 grievance with the Unit Grievance Investigator. Id. The inmate must then wait up to 40 days to receive a response. If the response is not satisfactory, the inmate must then file a Step 2 grievance within 15 days and wait another 35 days for a response.
-Id-. -Se-e a-ls-o Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004)
("The Step 1 grievance, which must be filed within fifteen days of the complained-of incident, is handled within the prisoner's facility. After an adverse decision at Step 1, the prisoner has ten days to file a Step 2 grievance, which is handled at the state level."). To exhaust, a prisoner must pursue a grievance through both steps in compliance with all procedures. Id., citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired. Powe, 177 F.3d at 394.
The defendants have presented Johnson's grievance records, which contain various complaints. Defendants do not dispute that Johnson filed grievances regarding the conditions of his confinement. However, the defendants contend that Johnson failed to exhaust the grievance system with regard to his claims that the defendants denied him access to health and psychiatric care and were deliberately indifferent to his need for protection. They also argue that Johnson failed to assert that they retaliated against him.
-29-

A primary intent behind the grievance system is to alert prison authorities to difficulties that occur ln the system. Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) A grievance is not intended to be a summons used to initiate an adversarial proceeding, but it must afford the officials with a fair opportunity to address the problem internally. Id. Although this generally involves identification of those individuals who are responsible for the violations, "the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued." Id. at 522.
The court has carefully reviewed the numerous grievances filed by Johnson. Although Johnson does not mention Thaler, Livingston, or Linthicum in any of his grievances, section 1997e does not require that an inmate \ name all defendants' when filing his
grievance. Jones v. Bock, 127 s. Ct. 910, 922 (2007) While
Johnson does not identify the named defendants in his grievances, he makes it clear that he alleges that he has been denied treatment for his serious medical and psychiatric needs in addition to his claims regarding his alleged placement in isolation. Johnson also filed grievances alleging retaliation. However, the court does not find that Johnson filed grievances that clearly asserted that he was denied protection from assault. Therefore, the claim regarding the alleged failure to protect is subj ect to dismissal without prejudice under 42 U.S.C. § 1997e(a).
-30-

B. Johnson's Housing and His Need for Protection The Constitution "does not mandate comfortable prisons" and
only those deprivations that deny "the minimal civilized measure of life I s necessities" violate the Eighth Amendment. Rhodes v. Chapman, 101 S. Ct. 2392, 2400 (1981). To the extent that [prison] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. II Id. at 2399. The defendants have shown that Johnson was assigned to protective custody and housed in a single cell to prevent inmates from assaulting him. This decision is grounded upon the prison officials' duty to protect Johnson from violence at the hands of his fellow inmates. Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006), citing Farmer, 114 S. Ct. at 1976-77.
Prison authorities are afforded wide discretion in determining where and under what restrictions inmates are to be housed. Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir. 2008), citing McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990); Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003). An inmate's liberty interests are implicated only when the disciplinary measures taken against him inflict deprivations that are atypical and significant in relation to the ordinary incidents of prison life. Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995). Placing an inmate in segregated confinement to protect him from others lS not actionable. Hernandez, at 563, citing Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997). It is an ordinary incident of prison
-31-

life that is to be expected of an inmate who has been targeted by either his past conduct or his reputation. Id. To hold otherwise would subject custodial officials to an almost impossible task of allowing potential victims the run of the prison while attempting to protect them from violent assault. Therefore 1 Johnson cannot assert a deprivation of a cognizable liberty interest in being segregated from the general prison population while claiming that he is vulnerable to sexual abuse and gang-related activity. Hernandez 1 522 F.3d at 564.
Apart from failing to demonstrate that the assignment is actionable 1 Johnson has not shown that the conditions of his confinement violate his constitutional rights. Although by necessity Johnson does not have physical contact with other inmates l he can communicate with others both in and out of prison. The Supreme Court has recognized that inmates can be subjected to isolated conditions for significant time periods. See Wilkinson v. Austin l 125 S. Ct. 2384 1 2394-2395 (2005) (almost all human contact 1 including conversation l not permitted at Ohiol s state ~supermax" facility). Johnson/s conditions fall far short of those he has alleged in his complaint or those conditions described at Ohio/s supermax facility. See id. Johnson may not be able to commune with other inmates like those in general population l but that is a necessary component of protecting him from inmates in the general population who wish to harm him.
-32-

There can be no guarantee that a prisoner will be protected from all harm. Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) ("Prison officials are not, however, expected to prevent all inmate-on-inmate violence. ") , citing Farmer. Johnson has persistently claimed that he is a victim of sexual abuse and a target for gang violence. He has proven that he cannot function in the general prison populations of either the Texas or the New Mexico penal systems. The preventive actions taken by TDCJ officials at the Pack Unit, as well as those in Huntsville, are reasonable and do not violate Johnson's rights under the Eighth Amendment. See Newton v. Black, 133 F.3d 301, 307 (5th Cir. 1998). Johnson's claims regarding his conditions of confinement will be dismissed.
C. Johnson's Transfer from New Mexico to Texas Johnson contends that he should be removed from TDCJ and be
allowed to serve the remainder of his sentence in some other penal system. The defendants have demonstrated that they previously made an effort to accommodate Johnson's needs and that the New Mexico Corrections Department experienced difficulties in housing him. (App. 002) The correspondence form NMCD makes it clear that Johnson initiated the sexual activities or was at least a willing participant. Id. Regardless of whether another penal system would accept him, Johnson has no constitutional right to choose where he is assigned or how he is to be housed. Olim v. Wakinekona, 103 S. Ct. 1741, 1748 (1983); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.
-33-

1996); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995). The fact that life in one prison might be less comfortable or appealing than another has no bearing on whether a constitutional right is implicated. Meachum v. Fano, 96 S. Ct. 2532, 2538 (1976). Johnson's placement in TDCJ is made pursuant to a Texas state court criminal judgment. His assignment and classification is a matter left to the discretion of the TDCJ officials who are in a better position to determine where to place an inmate such as Johnson who presents unique and difficult challenges. Wilkerson v. Stalder, 329 F.3d at 436, citing McCord, 910 F.2d at 1250, citing Bell v. Wolfish, 99 S. Ct. 1861 (1979). See also Mayoral v. Sheahan, 245 F.3d 934, 939 (7th Cir. 2001) (acknowledging pervasive presence of gangs and the burdens placed on prison officials in segregating members) . Johnson's claims regarding his housing and unit assignment will be dismissed.
D. Medical and Psychiatric Care Johnson alleges that he has been denied adequate medical and
psychiatric care. As a prisoner of the TDCJ, Johnson has a right to basic treatment in response to his serious medical needs as well as his psychiatric needs. Estelle, 97 S. Ct. at 290 (1976) i Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 754 (5th Cir. 2001). Prison officials violate that right if they engage in "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. u Estelle, 97 S. Ct. at 292.
-34-

Prison officials are deliberately indifferent if they are (1) aware of facts from which an inference of an excessive risk to the plaintiff-inmate's health or safety could be drawn, and (2) they actually draw an inference that such potential for harm exists. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required. Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006); see also Phillips v. Roane County. Tenn., 534 F.3d 531, 539-540 (6th Cir. 2008).
Johnson alleges that he suffers from numerous mental ailments and that his segregated confinement aggravates his condition. He further contends that the defendants have denied him adequate treatment and medication. The records submitted by the defendants demonstrate that Johnson is closely monitored and seen daily by a health care worker. Moreover, there was no indication that he was suffering from a serious psychotic disorder that went untreated. He was regularly given medication, Zoloft, to treat his PTSD condition. The defendants' records of treatment, analyses, and medications demonstrate that defendants were not deliberately indifferent to Johnson's condition. Gobert v. Caldwell, 463 F.3d at 346-347. See also Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993) i Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) .
-35-

The medical records refute Johnson's allegations of extreme psychotic disorders although they do acknowledge some mental difficulties that were treated with medication. Moreover, at least one health care worker, Bookman, indicated that Johnson was clearly focused on getting out of protective custody, suggesting that some of his alleged behavior may have been directed toward that goal. (See App. 311.) The records show that Johnson suffers from hypertension and that he has been treated and counseled on how to control it. (App. 266-272) The records demonstrate that Johnson's need for medical attention has been met. Johnson's disagreement with the health care workers' findings and diagnoses does not support a finding that the defendants were deliberately indifferent to his serious health needs. Sarna v. Hannigan, 669 F.3d 585, 590-591 (5th Cir. 2012). Johnson's claims of deliberate indifference to his medical and psychiatric needs will be dismissed.
E. Retaliation Johnson alleges that the defendants have retaliated against
him for exercising his right of access to the courts and the TDCJ grievance process. To assert a retaliation claim "a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. II McFaul v. Valenzuela, 684 F.3d 564, 578 (5th Cir. 2012), citing
-36-

Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Causation requires a showing that the complained of incident would not have occurred [unless there was a retaliatory motive present. Moles v. Lappin, F. App'x 501, 507 (lOth Cir. 2012), citing Peterson v. Shanks, 149 F.3d 1140, 1144 (lOth Cir. 1998). See also MacDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Johnson alleges that he was transferred from the New Mexico prison system back to TDCJ in retaliation for filing grievances. He does not provide any facts from which the court could infer that the transfer was motivated by an intent to retaliate against him. See Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004). The NMCD correspondence presents a valid justification for Johnson's transfer. (App. 002) Johnson's behavior in New Mexico showed that he was more of a menace than a victim in the sexual exploitation that was occurring in the penal system. rd. The NMCD letter shows that there is no merit to Johnson's claim that his return to TDCJ from New Mexico was in retaliation for exercising his right of access to the courts and to the TDCJ grievance process.
The other retaliatory acts alleged by Johnson (food tampering, harassment, cell searches, confiscations) are based on conclusory allegations that are insufficient to support a retaliation claim. See Shelton v. Lemons, 486 F. App'x 395, 397-398 (5th Cir. 2012), citing Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Moreover, Johnson has not shown that the alleged retaliatory acts have had any effect on his resolve to seek relief in the courts or
-37-

- - - - - - - - - - - _.._ . _ - - - -

- - - - _..--~.---.---------===::::::::::::::======

through the prison administrative process. The Fifth Circuit has explained that" [t] he purpose of allowing inmate retaliation claims under § 1983 is to ensure that prisoners are not unduly discouraged from exercising their constitutional rights." Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006), citing Crawford-EI v. Britton, 118 S. Ct. 1584, 1592 n.10 (1998). Given the uninterrupted stream of grievances that poured forth from Johnson's cell (App. 25-119), it is difficult to perceive how any of the alleged retaliatory acts prevented Johnson from filing grievances or seeking relief. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988). Johnson's claims of retaliation shall be dismissed.
F. No Showing of Personal Involvement or Policy In addition to demonstrating no constitutional violation, the
defendants have also shown that they were not personally involved in the acts and omissions alleged by Johnson. In a suit brought under 42 U.S.C. § 1983 the plaintiff must usually show that the "defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation." James, 535 F.3d at 373, citing Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439,443 (5th Cir. 1999). Supervisory officials cannot be held to be personally liable for their subordinate's actions if they were not personally involved in the alleged wrongdoing. Id.
Johnson seeks injunctive relief and may sue the defendants in their official capacities without violating the Eleventh Amendment.
-38-

Meza v. Livingston, 607 F.3d 392, 412 (5th Cir. 2010), citing Ex parte Young, 28 S. Ct. 441 (1908) However, a suit against the defendants in their official capacities must be supported by a showing that there was a policy or custom behind the alleged deprivations. See Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997). Allegations of isolated instances of deprivations alone do not establish liability of the policy maker. City of Oklahoma City v. Tuttle, 105 S. Ct. 2427, 2436 (1985) i Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988). Johnson has failed to establish or allege any facts that would demonstrate the existence of a policy that violates his constitutional rights.
The defendants have demonstrated that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. Therefore, the defendants' Motion for Summary Judgment (Docket Entry No. 42) will be granted, and this action will be dismissed under FED. R. Crv. P. 56. To the extent that the defendants have moved to dismiss Johnson's complaint regarding his conclusory allegations of retaliation as well as his failure to demonstrate personal involvement, that motion (Docket Entry No. 24) shall also be granted.
VI. Johnson's Motions Johnson has filed several motions to amend and supplement his complaint. He has requested that Dr. Linthicum be dismissed from the lawsuit. (Docket Entry No. 26) He has al so requested that several new defendants be added. The defendants have responded
-39-

that the requested amendments are futile. The court agrees and
will deny Johnson's motions. (Docket Entry Nos. 26, 36, and 37)
Johnson has also moved for court-appointed counsel. There is
no general right to counsel in civil rights proceedings. McFaul v.
Valenzuela, 684 F.3d 564, 581 (5th Cir. 2012) The motion (Docket
Entry No. 48) will be denied because there are no extraordinary
circumstances in this proceeding that would justify appointment of
counsel. Id., citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir.1982).
Johnson's Motion to Deny Summary Judgment (Docket Entry
No. 49) will be denied for the reasons stated in this Memorandum
Opinion and Order.
VII. Conclusion
The court ORDERS the following:
1. The Defendants Livingston, Thaler, Herrera, and Linthicum's Motion to Dismiss for Failure to State a Claim (Docket Entry No. 24) and Motion for Summary Judgment (Docket Entry No. 42) are GRANTED.
2 . The civil rights Complaint (Docket Entry No.1) filed by a TDCJ prisoner is DISMISSED with prejudice.
3. Johnson's request to dismiss Dr. Linthicum as a defendant is GRANTED, but all other relief requested in his Motion for Leave to File an Amended Complaint (Docket Entry No. 26) is DENIED.
4. All other motions (Docket Entry Nos. 36, 37, 48, and 49) are DENIED.
SIGNED at Houston, Texas, on this the 22n, ~UIY' 2013.

-40-

SIM LAKE UNITED STATES DISTRICT JUDGE

 
 Case 4:12-cv-02728 Document 61 Filed in TXSD on 07/22/13 Page 1 of 1

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

RODERICK KEITH JOHNSON,

§

TDCJ-CID NO. 1455959,

§

§

Plaintiff,

§

§

v.

§

CIVIL ACTION NO. H-12-2728

§

JOHN DOE, et al.,

§

§

Defendants.

§

FINAL JUDGMENT

For the reasons stated in this court's Memorandum Opinion and Order entered this date, this action is DISMISSED with prejudice.
This is a FINAL JUDGMENT. SIGNED at Houston, Texas, on this the 22nd day of July, 2013.

UNITED STATES DISTRICT JUDGE

 
 General Docket United States Court of Appeals for the Fifth Circuit
Court of Appeals Docket #: 13­20475 Nature of Suit: 3555 Prison Conditions Roderick Johnson v. John Doe, et al Appeal From: Southern District of Texas, Houston Fee Status: IFP Granted/Fee Paid

Case Type Information: 1) Prisoner w/ out Counsel 2) State 3) Prison Conditions
Originating Court Information: District: 0541­4 : 4:12­CV­2728 Originating Judge: Sim T. Lake, III, U.S. District Judge Date Filed: 09/12/2012 Date NOA Filed: 08/14/2013
Prior Cases: None

Date Rec'd COA: 08/15/2013

Current Cases: None
Panel Assignment:

Not available

RODERICK KEITH JOHNSON (State Prisoner: #1455959, Unit 1) Plaintiff ­ Appellant
v.

Roderick Keith Johnson [NTC Pro Se] CID Wallace Pack Prison 2400 Wallace Pack Road Navasota, TX 77868­0000

JOHN DOE Defendant ­ Appellee
BRAD LIVINGSTON, Executive Director of Texas Department of Criminal Justice
Defendant ­ Appellee
RICK THALER, Director of Correctional Institutions Division Defendant ­ Appellee
SENIOR WARDEN RICHARD HERRERA Defendant ­ Appellee
LANETTE LITHICUM, Director of Health Services Division Defendant ­ Appellee

Celamaine Cunniff Direct: 512­463­2080 [COR LD NTC Government] Office of the Attorney General Law Enforcement Defense Division 7th Floor 300 W. 15th Street ­ 7th Floor William P. Clements Building Austin, TX 78701­1220
Celamaine Cunniff Direct: 512­463­2080 [COR LD NTC Government] (see above)
Celamaine Cunniff Direct: 512­463­2080 [COR LD NTC Government] (see above)
Celamaine Cunniff Direct: 512­463­2080 [COR LD NTC Government] (see above)

Docketed: 08/23/2013 Termed: 10/01/2014

RODERICK KEITH JOHNSON, Plaintiff ­ Appellant
v. JOHN DOE; BRAD LIVINGSTON, Executive Director of Texas Department of Criminal Justice; RICK THALER, Director of Correctional Institutions Division; Senior Warden RICHARD HERRERA; LANETTE LITHICUM, Director of Health Services Division,
Defendants ­ Appellees

08/23/2013

PRISONER CASE WITHOUT COUNSEL docketed. NOA filed by Appellant Mr. Roderick Keith Johnson

4 pg, 343.44 KB [13­20475] (LBM) [Entered: 08/23/2013 10:10 AM]

08/30/2013
1 pg, 85.82 KB

INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process. [7446887­2] Initial AA Check Due satisfied.. Awaiting DC Action due on 09/30/2013. IFP pending in DC [13­20475] (Jd) [Entered: 08/30/2013 08:15 AM]

09/05/2013

APPEARANCE FORM FILED by Attorney Celamaine Cunniff for Appellee Lanette Lithicum in 13­20475, Attorney Celamaine Cunniff for Appellee Richard Herrera in 13­20475, Attorney Celamaine Cunniff for Appellee Rick Thaler in 13­20475, Attorney Celamaine Cunniff for Appellee Brad Livingston in 13­20475 [13­20475] (Jd) [Entered: 09/05/2013 03:52 PM]

10/01/2013

DISTRICT COURT NOTICE ­ IFP pending for Appellant Mr. Roderick Keith Johnson. Awaiting District Court Action deadline updated to 10/30/2013 [13­20475] (JMW) [Entered: 10/01/2013 01:08 PM]

10/21/2013

MOTION filed by Appellant Mr. Roderick Keith Johnson to appoint counsel [7505869­2]. Date of service:

8 pg, 606.68 KB 10/16/2013 [13­20475] [SUBMIT TO SCREENING JUDGE AND PANEL] (DLM) [Entered: 11/15/2013 09:49 AM]

10/31/2013

DISTRICT COURT NOTICE ­ IFP pending for Appellant Mr. Roderick Keith Johnson. Awaiting District Court Action deadline updated to 12/02/2013 [13­20475] (JMW) [Entered: 10/31/2013 03:08 PM]

11/15/2013

DISTRICT COURT ORDER of 11/13/2013 granting IFP in accordance with the Prison Litigation Reform Act (PLRA) for Appellant Mr. Roderick Keith Johnson. Initial partial filing fee assessed.Awaiting District Court Action deadline satisfied [13­20475] (DLM) [Entered: 11/15/2013 09:51 AM]

11/15/2013

BRIEFING NOTICE ISSUED A/Pet's Brief due on 12/26/2013 for Appellant Roderick Keith Johnson. [13­

3 pg, 80.27 KB 20475] (DLM) [Entered: 11/15/2013 09:52 AM]

11/15/2013

ELECTRONIC RECORD ON APPEAL REQUESTED FROM DISTRICT COURT. Electronic ROA due on 12/02/2013. [13­20475] (DLM) [Entered: 11/15/2013 09:55 AM]

11/25/2013

ELECTRONIC RECORD ON APPEAL FILED. Exhibits on File in District Court? No. Electronic ROA deadline satisfied. [13­20475] (Jd) [Entered: 11/25/2013 12:47 PM]

12/11/2013

MOTION filed by Appellant Mr. Roderick Keith Johnson to extend time to file brief as appellant until 40

5 pg, 249.48 KB days from 12/26/13 [7524779­2]. Date of service: 12/09/2013 [13­20475] (MRW) [Entered: 12/12/2013 01:13 PM]

12/13/2013
1 pg, 57.6 KB

CLERK ORDER granting in part motion to extend time to file appellant's brief filed by Appellant Mr. Roderick Keith Johnson [7524779­2] A/Pet's Brief deadline updated to 01/24/2014 for Appellant Roderick Keith Johnson. [13­20475] (Jd) [Entered: 12/13/2013 10:29 AM]

01/29/2014
42 pg, 2.27 MB

APPELLANT'S BRIEF FILED by Mr. Roderick Keith Johnson . # of Copies Provided: 4. A/Pet's Brief deadline satisfied. Appellee's Brief due on 03/03/2014 for Appellees Richard Herrera, Lanette Lithicum, Brad Livingston and Rick Thaler [13­20475] (Jd) [Entered: 01/29/2014 09:43 AM]

03/03/2014
11 pg, 303.2 KB

APPELLEE'S LETTER BRIEF FILED by Appellees Mr. Richard Herrera, Ms. Lanette Lithicum, Mr. Brad Livingston and Mr. Rick Thaler. Date of service: 03/03/2014 via US mail ­ Appellant Johnson; email ­ Attorney for Appellee: Cunniff [13­20475] REVIEWED AND/OR EDITED. APPELLEE'S LETTER BRIEF FILED . # of Copies Provided: 0. E/Res's Brief deadline satisfied. Reply Brief due on 03/20/2014 for Appellant Roderick Keith Johnson. Paper Copies of Brief due on 03/10/2014 for Appellees Richard Herrera, Lanette Lithicum, Brad Livingston and Rick Thaler. [13­20475] (Celamaine Cunniff ) [Entered: 03/03/2014 01:54 PM]

03/13/2014

Paper copies of appellee brief filed by Appellees Mr. Brad Livingston, Mr. Rick Thaler, Ms. Lanette Lithicum and Mr. Richard Herrera in 13­20475 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [13­20475] (Jd) [Entered: 03/13/2014 10:29 AM]

03/21/2014

APPELLANT'S REPLY BRIEF FILED by Mr. Roderick Keith Johnson

8 pg, 361.74 KB # of Copies Provided: 4 . Reply Brief deadline satisfied [13­20475] (Jd) [Entered: 03/21/2014 11:38 AM]

04/21/2014

MOTION filed by Appellant Mr. Roderick Keith Johnson for injunction pending appeal [7618258­2]. Date of

12 pg, 647.01 KB service: 04/14/2014 [13­20475] (DLM) [Entered: 04/24/2014 11:31 AM]

10/01/2014
6 pg, 143.46 KB

UNPUBLISHED OPINION FILED. [13­20475 Affirmed] Judge: WED , Judge: EBC , Judge: GJC. Mandate pull date is 10/22/2014; denying motion for injunction pending appeal filed by Appellant Mr. Roderick Keith Johnson [7618258­2]; denying motion to appoint counsel filed by Appellant Mr. Roderick Keith Johnson [7505869­2] [13­20475] (JRS) [Entered: 10/01/2014 03:48 PM]

10/01/2014

JUDGMENT ENTERED AND FILED. [13­20475] (JRS) [Entered: 10/01/2014 03:56 PM]

1 pg, 35.42 KB

10/23/2014
2 pg, 76.78 KB
11/06/2014
32 pg, 1.99 MB

MANDATE ISSUED. Mandate pull date satisfied. [13­20475] (Jd) [Entered: 10/23/2014 04:13 PM]
DOCUMENT RECEIVED ­ NO ACTION TAKEN. No action will be taken at this time on the Petition for Rehearing En Banc received from Appellant Mr. Roderick Keith Johnson because it is filed out of time [13­ 20475] (Jd) [Entered: 11/06/2014 11:18 AM]

Clear All

Documents and Docket Summary Documents Only

Include Page Numbers

0 Selected Pages:

0 KB Selected Size:

Totals reflect accessible documents only and do not include unauthorized restricted documents.

View Selected

PACER Login: Description: Billable Pages:

PACER Service Center

Transaction Receipt

5th Circuit ­ Appellate ­ 11/11/2018 12:14:59

CRClearinghouse

Client Code:

Docket Report (full)

Search Criteria:

2

Cost:

13­20475 0.20

 
 Case: 13-20475 Document: 00512789676 Page: 1 Date Filed: 10/01/2014

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13-20475 Summary Calendar
RODERICK KEITH JOHNSON,

United States Court of Appeals Fifth Circuit
FILED
October 1, 2014
Lyle W. Cayce Clerk

Plaintiff-Appellant

v.

JOHN DOE; BRAD LIVINGSTON, Executive Director of Texas Department of Criminal Justice; RICK THALER, Director of Correctional Institutions Division; Senior Warden RICHARD HERRERA; LANETTE LITHICUM, Director of Health Services Division,

Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CV-2728

Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM:*
Roderick Keith Johnson, Texas prisoner # 1455959, appeals the district court’s summary judgment dismissal of his 42 U.S.C. § 1983 action filed against various officials of the Texas Department of Criminal Justice (TDCJ),

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case: 13-20475 Document: 00512789676 Page: 2 Date Filed: 10/01/2014
No. 13-20475
alleging that the defendants1 violated his constitutional rights while he was housed in administrative segregation as a protective custody inmate.
We review the grant of summary judgment de novo, applying the same standards as the district court. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate where the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In conducting our review, we view the evidence in the light most favorable to the nonmoving party; however, “conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence” are insufficient. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
In his brief to this court, Johnson provides only a conclusory statement that he “exhausted all available means,” yet he presents no argument challenging the determination that he did not exhaust his claim that the defendants failed to protect him from assault. Likewise, he does not challenge the determination that his retaliation claim lacked merit. Johnson thus abandons these issues by failing to adequately brief them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
With respect to his individual-capacity claims, Johnson first argues that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because he has been confined to a single-person cell for 23 hours per day, which he describes as total isolation, since August 2011. He contends that the conditions of his confinement have exacerbated his mental illnesses and caused him serious psychological and physical pain. Assuming Johnson can show a sufficiently serious deprivation, he also must show that
1 While the summary judgment motion was pending, Johnson moved to dismiss Lanette Lithicum as a defendant; the district court granted his request.
2

Case: 13-20475 Document: 00512789676 Page: 3 Date Filed: 10/01/2014
No. 13-20475
prison officials acted with “deliberate indifference” to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Farmer’s subjective prong requires that a prisoner demonstrate that the prison official was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed],” that the officer in fact drew such an inference, and that the officer nevertheless disregarded the risk. Id. at 837.
Johnson does not point to any competent evidence that Executive Director Brad Livingston, Director Rick Thaler, or Senior Warden Richard Herrera knew of the conditions about which he complains or that they deliberately disregarded an excessive risk to human health or safety. See id at 837, 843. Further, Johnson’s claim regarding the conditions in administrative segregation is largely premised on the defendants’ alleged use of isolation on an inmate, such as himself, with “serious mental illness.” However, he fails to explain how this risk was, as he claims, obvious to any of the defendants when the record demonstrates that Johnson was diagnosed only with post-traumatic stress disorder for which he was prescribed medication. The standard required to succeed on a deliberate-indifference claim is “extremely high,” and Johnson has not met it here. See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
In Johnson’s second issue, he maintains that he is “totally incapacitated” in the administrative segregation unit and that prison officials violated his constitutional rights by denying him access to adequate mental health care. However, Johnson’s assertions that he has been denied access to mental health care and that he suffers from chronic mental illness, severe paranoia, psychosis, and suicidal thoughts are rebutted by his mental health records. Gobert v. Caldwell, 463 F.3d 339, 346 n.24 (5th Cir. 2006). Johnson’s claim essentially amounts to a disagreement with the mental health care he has been
3

Case: 13-20475 Document: 00512789676 Page: 4 Date Filed: 10/01/2014
No. 13-20475
provided. Such disagreement does not constitute deliberate indifference to his medical needs. Id. at 346.
As to his official-capacity claims, Johnson vaguely refers to “unconstitutional and unlawful policies and practices” regarding his mental illnesses. He also maintains that the defendants have “tacitly accepted . . . a code of silence” encouraging abuse on prisoners. These assertions, which are conclusory and without factual support, are insufficient to defeat summary judgment. See McFaul, 684 F.3d at 571.
Johnson also contends that the district court erred in denying his request for injunctive relief. This contention fails because he did not establish success on the merits. See VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006).
Finally, Johnson challenges the district court’s denial of his motion for the appointment of counsel. However, no exceptional circumstances exist as he has demonstrated an ability to litigate and his case is not complex. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Accordingly, the denial of the motion for appointment of counsel was not an abuse of discretion. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
Viewing the evidence in the light most favorable to Johnson, defendants Livingston, Thaler, and Herrera were entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a). Johnson’s motion for the appointment of appellate counsel and his motion for an injunction pending appeal are denied.
AFFIRMED; MOTIONS DENIED.
4

Case: 13-20475 Document: 00512789694 Page: 1 Date Filed: 10/01/2014

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

October 01, 2014
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc
No. 13-20475 Roderick Johnson v. John Doe, et al USDC No. 4:12-CV-2728
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED R. APP. P. 39 through 41, and 5TH CIR. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Case: 13-20475 Document: 00512789694 Page: 2 Date Filed: 10/01/2014

Sincerely, LYLE W. CAYCE, Clerk

Enclosure(s)
Ms. Celamaine Cunniff Mr. Roderick Keith Johnson

By: _______________________ Jamei R. Cheramie, Deputy Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

RODERICK KEITH JOHNSON (#623028),

)

Michael Unit, Tennessee Colony, Texas,

)

)

Plaintiff,

)

)

v.

)

)

GARY JOHNSON, Executive Director, Texas )

Department of Criminal Justice,

)

ROBERT R. TREON, Senior Warden, James V. )

Allred Unit, RICHARD E. WATHEN, Assistant )

Warden, General Population, James V. Allred Unit, )

JAMES D. MOONEYHAM, Assistant Warden, )

MAJOR NORWOOD, James V. Allred Unit,

)

MAJOR BRIGHT, James V. Allred Unit,

)

MS. KUYAVA, Administrative Technician,

)

Unit Classification Committee, James V. Allred )

Unit, MS. VITOLO, Administrative Technician, )

Unit Classification Committee, James V. Allred )

Unit, VIKKI D. WRIGHT, Director, Classification, )

CAPTAIN BOYLE, James V. Allred Unit,

)

MAJOR BOWMAN, James V. Allred Unit,

)

SERGEANT WILLINGHAM, James V. Allred )

Unit, LIEUTENANT PAUL, James V. Allred Unit, )

LIEUTENANT RANGEL, James V. Allred Unit, )

LIEUTENANT TAYLOR, James V. Allred Unit, )

JOHN DOE ONE, JOHN DOE TWO,

)

JOHN DOE THREE, JOHN DOE FOUR,

)

JOHN DOE FIVE,

)

)

Defendants.

)

Civil Action No. __________

COMPLAINT

PRELIMINARY STATEMENT 1. Plaintiff Roderick Johnson, a Black prisoner in custody of the Texas Department of Criminal Justice, brings this suit under 42 U.S.C. § 1983 for violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. For

1

eighteen months, from September 2000 to April 2002, Mr. Johnson was subjected to a system of gang-run sexual slavery at the James V. Allred Unit in Iowa Park, Texas. Gang members routinely bought and sold Mr. Johnson as a chattel, raped and degraded him on a virtually daily basis, and threatened him with death if he resisted. Defendant prison officials at Allred were well aware of his plight, but refused to conduct any meaningful investigation of his complaints and refused his repeated pleas to be housed in safekeeping. They made clear by words and deeds that they took sadistic pleasure in his victimization. They repeatedly insisted that because he is Black, Mr. Johnson should either be able to fight off his attackers or else accept his sexual victimization. They also repeatedly expressed contempt for non-aggressive gay men, and made it explicit that it was their practice to refuse to protect such inmates from sexual assault, at least until such inmates were savagely beaten or “gutted.” They reiterated to Mr. Johnson that he must “fight or f---.” They also threatened Mr. Johnson with severe retaliation for revealing their misconduct and for seeking redress administratively and through the courts.
2. On information and belief, the Allred Defendants follow a custom and practice of denying safekeeping to vulnerable Black inmates even in cases of obvious need. Defendants, all of whom, on information and belief, are white, are far less likely to grant safekeeping to Black inmates than to other similarly situated inmates. Defendants improperly considered Mr. Johnson’s race in denying him safekeeping. In addition, on information and belief, Defendants follow a custom and practice of denying safekeeping to non-aggressive, gay men in need of protection.
3. Defendant Gary Johnson, Executive Director of the Texas Department of Criminal Justice, was aware of the misconduct of the Defendants at Allred, and the injury
2

and danger to which they subjected Mr. Johnson, but failed to take timely and adequate remedial measures.
4. Mr. Johnson sues the Defendants in their official and individual capacities. 5. Mr. Johnson seeks permanent and preliminary injunctive relief, declaratory relief, and damages for the physical injuries, excruciating emotional pain, intense degradation and humiliation, and lasting psychic trauma caused by Defendants’ acts and omissions.
JURISDICTION 6. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331, and pursuant to 28 U.S.C. § 1343(a)(3) and (a)(4).

VENUE

7. Venue in this District is proper as to all Defendants pursuant to 28 U.S.C. §

1391(a)(2) and (b)(2) because the events giving rise to the claims occurred within this

district.

PARTIES

8. Plaintiff Roderick Johnson is a citizen of Texas currently incarcerated as a

sentenced prisoner at the Michael Unit in Tennessee Colony, Texas. From September 2000

to April 2002 he was incarcerated at the Allred Unit in Iowa Park, Texas.

9. Defendant Gary Johnson is the Executive Director of the Texas Department

of Criminal Justice (“TDCJ”). He has ultimate responsibility within the Department for

overseeing the operations of state prison facilities and ensuring prison officials’ adherence

to federal and state law and official TDCJ policy.

10. Defendant Robert R. Treon is the Senior Warden of the Allred Unit. He is

responsible for the daily operations of Allred.

3

11. Defendant Richard E. Wathen is the Assistant Warden for General Population at Allred.
12. Defendant James D. Mooneyham is an assistant warden at Allred. 13. Defendant Norwood is a major at Allred. 14. Defendant Bright is a major at Allred. 15. Defendant Boyle is a captain at Allred. 16. Defendant Bowman is a major at Allred. 17. Defendant Willingham is a sergeant at Allred. 18. Defendant Paul is a lieutenant at Allred. 19. Defendant Rangel is a lieutenant at Allred. 20. Defendant Taylor is a lieutenant at Allred. 21. Defendant Vikki D. Wright is the Director of Classification at Allred. 22. Defendant Kuyava is an administrative technician for the Unit Classification Committee at Allred. 23. Defendant Vitolo is an administrative technician for the Unit Classification Committee at Allred. 24. Defendants John Doe One, John Doe Two, John Doe Three, John Doe Four, and John Doe Five are employees at Allred who have served on one or more of the Unit Classification Committees that denied Mr. Johnson’s requests for safekeeping. 25. At all relevant times, all Defendants acted under color of state law, and all individual Defendants were acting within the scope of their employment.
4

EXHAUSTION 26. Mr. Johnson has exhausted such administrative remedies as were available to him. Mr. Johnson’s Step 2 grievance form is attached.
PREVIOUS LAWSUITS 27. Mr. Johnson has never previously filed any lawsuits in state or federal court relating to his imprisonment.
STATEMENT OF FACTS 28. Roderick Johnson, a homosexual with no history of violence and very little prison experience, came into the custody of the Texas Department of Criminal Justice in early January 2000. He was sent to the Diagnostic Unit at Gurney and then to Huntsville for processing and classification. Mr. Johnson informed prison officials at both institutions that he was gay. Because his background and characteristics made him a likely target for sexual victimization, prison officials in Huntsville appropriately housed him in safekeeping. A State Classification Unit member assured him he would remain in safekeeping when he was transferred to Allred. 29. At Allred, a Unit Classification Committee (“UCC”), consisting of three or more officials, makes decisions on whether inmates require safekeeping. Defendants Wathen, Mooneyham, Norwood, Kuyava, Vitolo, Boyle, Bowman, Rangel, and Taylor all served on the UCC at Allred at various times relevant to this Complaint. 30. The Texas Department of Criminal Justice defines safekeeping in its Safe Prisons Program as “a status that permits the unit/facility to house vulnerable individuals, and other potential victims together, separate from more aggressive offenders. . . . Safekeeping status is reserved for those offenders who require separate housing in the
5

general population because of substantiated threats to their safety due to a potential for victimization, (i.e., enemies in the offender population, a history of homosexual behavior, or other similar reasons.)”
31. Mr. Johnson met and meets the criteria for placement in safekeeping status. 32. Defendants have known for years of the pervasive and substantial risk of sexual assault at Allred. They were also aware that Mr. Johnson was vulnerable to sexual victimization. Nevertheless, they failed to take reasonable measures to prevent him from being victimized. 33. In September 2000, when Mr. Johnson arrived at Allred, a Unit Classification Committee that included Defendant Major Bright held an initial classification review. Mr. Johnson explained to the UCC that he had been placed in safekeeping at Huntsville because he is gay, and that a State Classification Officer had told him that he would remain in safekeeping at Allred. Defendant Bright responded, “We don’t protect punks on this farm.” 34. At the initial classification hearing at Allred, the Defendants placed Mr. Johnson in the general population on Building 8. 35. Predatory inmates raped Mr. Johnson almost immediately. 36. These inmates gave Mr. Johnson the name “Coco,” thereby designating him as an inmate available for sexual exploitation. The Defendants also adopted the name, addressing Mr. Johnson only as “Coco” and referring to Mr. Johnson as “she” and “her.” 37. Prison gang members in general population soon asserted ownership of Mr. Johnson. The Gangster Disciple gang was the first to officially “own” him.
6

38. In early October 2000, a Gangster Disciple, Andrew Hernandez, forced Mr. Johnson into his cell and raped him. Afterwards, other gang members congratulated Hernandez for his conquest of Mr. Johnson.
39. Mr. Johnson informed Defendant Sergeant Willingham and Defendant Assistant Warden Mooneyham that he had been raped and that he feared for his life. He asked for medical attention. They refused, stating that immediate medical care was available only in cases of emergency.
40. On information and belief, Defendants Willingham and Mooneyham did not investigate or report Mr. Johnson’s complaint and did nothing to protect him from future harm.
41. After Mr. Johnson reported the rape to Defendants Willingham and Mooneyham, Hernandez continued to rape and sexually abuse Mr. Johnson every day until mid-November, 2000. Hernandez also forced Mr. Johnson to clean his cell, make his bed, and cook his food. Hernandez told Mr. Johnson that if he did not submit, Hernandez would have him killed.
42. In mid-November 2000, Hernandez began sharing Mr. Johnson with his friends and forcing Mr. Johnson to perform sex acts for them. During this time, gang members badly beat another sex slave they called “Buttons” for refusing to submit to forced sex. Hernandez made it clear to Mr. Johnson that the same would happen to him if he resisted his role as a sex slave.
43. In December 2000, Hernandez stole Mr. Johnson’s radio, fan, shoes, and $30 in commissary from his cell. Mr. Johnson reported this theft to Defendant Willingham and Officer Lott, who laughed and insinuated that he should go get his property back by himself.
7

When Mr. Johnson asked Hernandez to return the property, Hernandez assaulted him, bruising his face. Mr. Johnson was treated in the medical department and placed in segregation in Building 11 for nine days alongside his attacker.
44. As a result of this attack, Defendant Willingham signed off on a “life endangerment” claim requesting safekeeping for Mr. Johnson. Mr. Johnson then appeared before a Unit Classification Committee to explain his need for safekeeping. The Unit Classification Committee consisted of Defendants Mooneyham, Vitolo, and John Doe One. Defendant Vitolo noted the recent attack and pointed out that, given Mr. Johnson’s characteristics, he should have been placed on safekeeping when he arrived at Allred. Defendant Mooneyham replied that initial classification mistakes are not the concern of the present UCC. Ignoring the obvious risk of serious harm, the UCC denied Mr. Johnson’s request for safekeeping and sent him back to general population.
45. After denying him safekeeping, Defendant Mooneyham handed Mr. Johnson a folded document and told him to sign it. Mr. Johnson asked Defendant Mooneyham what the paper was. Mooneyham replied, “It’s a waiver saying that we’re moving you to another pod and this will solve the problem.” Believing he was signing routine paperwork, Mr. Johnson complied with Defendant Mooneyham’s order. At a number of subsequent life endangerment hearings at Allred, UCC members directed Mr. Johnson to sign a similar document. Defendants never allowed Mr. Johnson to read these forms.
46. Before being moved back to Building 8 by the UCC, Mr. Johnson received a letter from Marty Smith, a member of the Bloods gang, indicating that Smith had “bought” Johnson from the Gangster Disciples and would be waiting for Johnson to return to Building 8. After nine days in Building 11, prison officials returned Mr. Johnson to Building 8.
8

47. As soon as Defendants Mooneyham, Vitolo and John Doe One returned Mr. Johnson to Building 8, Marty Smith began treating Mr. Johnson as his sexual slave. At first, only Smith raped Mr. Johnson. Soon, however, Smith began forcibly selling Mr. Johnson to other inmates.
48. In January 2001, desperate for help, Mr. Johnson wrote the first of several letters to Defendant Wright, the Director of Classification, explaining that other inmates were sexually attacking him, and asking for safekeeping. Defendant Wright ignored the letters.
49. In mid-January 2001, three inmates in the “Crips” gang assaulted Mr. Johnson in the back stairwell in Building 8. They called him a “renegade” for not obeying their orders. Mr. Johnson reported the attack to Sergeant Matthews. Sergeant Matthews refused to report the attack and took no other steps to investigate the complaint or to protect Mr. Johnson from further injury.
50. Mr. Johnson also sought help from the Allred Unit’s Security Threat Group. The Security Threat Group investigates gang problems on the unit. Mr. Johnson notified Sergeant Steagle and Officer Canaido of the Security Threat Group about his problems with the gangs and the sexual attacks that he was forced to endure. They took no action.
51. On February 4, 2001, Mr. Johnson again wrote to Defendant Wright, requesting safekeeping and pleading for protection from sexual assault by other inmates.
52. Mr. Johnson appeared before the UCC again in mid-February 2001. Defendants Bowman, Kuyava, and Boyle comprised the committee. Defendant Kuyava told Mr. Johnson, “You need to get down there and fight or get you a man.”
9

53. The UCC denied Mr. Johnson safekeeping again, saying that they would move him from L Pod to J Pod in Building 8. Mr. Johnson begged them to reconsider because merely moving him to a different housing pod in general population would provide no protection from the gangs. Defendant Bowman responded that they would tie him up and drag him back to his cell if he refused to return to Building 8.
54. On February 14, 2001, Mr. Johnson again wrote to Defendant Wright telling her about the forced sex acts and requesting safekeeping yet again. At this time, members of the Bloods, the Crips, and the Mexican Mafia were all sexually assaulting Mr. Johnson.
55. Another UCC was convened, consisting of Defendants Wathen, Vitolo, and John Doe Two. During this hearing, Defendant Wathen said that he did not believe Mr. Johnson because the Crips are a Black gang and a Black gang would not allow a Mexican to enslave an African-American. He told Mr. Johnson, “You need to start fighting.” Mr. Johnson asked if he was required to fight to save himself. Defendant Wathen replied, “I don’t care if you fight as long as you don’t use a weapon. There’s no reason why Black punks can’t fight and survive in general population if they don’t want to f---.” The UCC again denied Mr. Johnson safekeeping.
56. In late February 2001, Mr. Johnson went before a Unit Classification Committee for a classification review hearing. The UCC gave Mr. Johnson a minimum custody status and moved him to general population in Building 7.
57. Gang activity was rampant in Building 7. Inmates who were young, handicapped, homosexual, or perceived as weak were quickly preyed upon by gang members. On information and belief, Defendants were well aware of this situation.
10

58. Marty Smith, who was transferred to Building 7 shortly after Mr. Johnson’s transfer to Building 7, immediately reasserted his “ownership” of Mr. Johnson, forcibly hiring him out to other gang members as a sexual slave.
59. On February 25, 2001, Mr. Johnson filed a Step 1 grievance requesting safekeeping status. He received no reply.
60. On March 15, 2001, Mr. Johnson received an anonymous letter or “kite” from another inmate telling him that he would be dead once the unit was off lockdown because he was a snitch.
61. On March 16, 2001, Mr. Johnson went before a Unit Classification Committee for his fourth life endangerment hearing. The Committee was composed of Defendants Wathen, Kuyava, and John Doe Three. Defendant Wathen told Mr. Johnson that Mr. Johnson needed to fight his attackers. Defendant Kuyava told him, “Bring bruises or stay out of my face.”
62. On March 18, 2001, Mr. Johnson filed another Step 1 grievance describing the sexual assaults and harassment and requesting safekeeping due to threats on his life.
63. On April 9, 2001, Mr. Johnson received a reply to his February 25, 2001 grievance with stock language stating that the UCC had reviewed his case on March 16, 2001 and denied his request for a transfer, safekeeping, or protective custody due to insufficient evidence.
64. On April 17, 2001, Mr. Johnson filed a timely Step 2 grievance detailing the efforts he had made to seek protection from rape and sexual assault. He provided prison officials with the name of inmate Marty Smith.
11

65. On May 4, 2001, Mr. Johnson received a reply to the Step 2 grievance indicating in the same stock language that his case had been investigated and that there was no evidence to support his claim of life endangerment.
66. Throughout this period, Mr. Johnson was routinely forced to endure sexual assault and rape by multiple gang members. He became increasingly hopeless and suicidal.
67. At the end of July 2001, Mr. Johnson went before the UCC for another procedural reclassification. He was assigned a job as a unit supply clerk and moved to a dormitory in Building 18.
68. Gang member Marty Smith, taking advantage of lax security at Allred, frequently left his own building and came to Building 18 to harass, threaten, and sexually assault Mr. Johnson.
69. In late July 2001, Mr. Johnson again reported the threats and assaults to Sergeant Matthews. Sergeant Matthews filed a life endangerment claim on Mr. Johnson’s behalf.
70. In early August 2001, Mr. Johnson appeared before the Unit Classification Committee on his fifth life endangerment claim. The UCC on this occasion was composed of Defendants Wathen and John Does Four and Five. Defendant Wathen told Mr. Johnson that Building 18 was entirely safe. On information and belief, Defendants were well aware that this was untrue. The Defendants denied him safekeeping.
71. Soon after Mr. Johnson was transferred to Building 18, the Tangos gang in Unit 18 targeted him for sexual victimization. A Tangos gang member named Eric Charbaneau began threatening Mr. Johnson with violence unless he submitted to sex. The Crips and the Mandingo Warriors also began demanding sex from Mr. Johnson.
12

72. Starting in August 2001 and continuing for five months to December 2001, the Tangos gang raped and prostituted Mr. Johnson. Only Tangos gang members were allowed to use Mr. Johnson’s body during this time. During this period, Mr. Johnson fell into deep despair and hopelessness. He frequently considered suicide.
73. On December 1, 2001, the Tangos gang ordered Mr. Johnson to perform oral sex on an inmate in 18R dormitory. Sergeant Barnett found Mr. Johnson in this inmate’s room and issued a disciplinary report against Mr. Johnson for being in another inmate’s dormitory without authorization. As a result, Mr. Johnson lost recreation and commissary for 45 days.
74. On December 5, 2001, Mr. Johnson filed another Step 1 grievance requesting safekeeping and protection from forced sexual activity. He informed staff that the disciplinary violation on December 1, 2001, was the result of forced sexual activity by the gangs.
75. On December 5 and December 30, 2001, and January 16, 2002, desperate for help, Mr. Johnson wrote letters to the Senior Warden, Defendant Treon, pleading for protection. Mr. Johnson received no response to any of these letters. Mr. Johnson also wrote to Defendant Gary Johnson, the Executive Director of TDCJ, and to the Chairman of the State Classification Committee, explaining the situation and pleading for safekeeping.
76. On December 13, 2001, Mr. Johnson went before the Unit Classification Committee for his sixth life endangerment claim. Prior to the hearing, an inmate named Gilstrap, a member of the Mandingo Warriors gang, forced Mr. Johnson to put makeup on his face to attend the hearing. The Committee for this life endangerment claim consisted of Defendants Bowman, Kuyava, and Rangel. When Mr. Johnson entered the hearing room,
13

Defendant Rangel laughed derisively and told Mr. Johnson to remove the makeup. Defendant Bowman told Mr. Johnson, “If you want to be a ho, you’ll be treated like a ho,” and “Get a man.” Defendant Rangel remarked, “Preferably a Black one, since it’s the Bloods you’re having problems with.”
77. Defendant Kuyava added, “You ain’t nothing but a dirty tramp,” and “Learn to fight or accept the f---ing.”
78. Defendant Kuyava concluded the hearing by insisting that the record reflect that Mr. Johnson was wearing makeup. She then stated, “Ms. Pretty is going to a good place now.” The Defendants had Mr. Johnson transferred from Building 18 to Building 7, the most heavily gang-infested building at Allred.
79. Upon information and belief, Defendants Bowman, Kuyava, and Rangel knew of the severe gang problem at Building 7 and the substantial risk that serious harm would befall Mr. Johnson at Building 7.
80. During his first week on Building 7, a member of the Crips gang forced Mr. Johnson to perform oral sex on him. The Tangos gang objected to this “disrespect” of their property and demanded $60 commissary in payment from the Crips. Thereafter, members of the Mexican Mafia, the most powerful gang on Building 7, approached Mr. Johnson and told him that he must “ride or die,” meaning that only by accepting sexual slavery with one gang could he avoid being killed.
81. The gangs began fighting over who owned Mr. Johnson, and Mr. Johnson was told that he must attend a gang meeting in the recreation yard where he would be forced to choose which gang would own him.
14

82. On December 30, 2001, Mr. Johnson filed another Step 1 grievance requesting safekeeping. He informed staff that day that he intended to break the disciplinary rules in order to get sent to segregation and thus escape the gangs.
83. On December 31, 2001, Mr. Johnson intentionally incurred a major disciplinary violation in an effort to avoid the choice between death and continued sexual servitude. He went to the recreation yard when not allowed to do so and intentionally gave an incorrect answer when a correctional officer asked him for his room number.
84. On or about January 9, 2002, Mr. Johnson had a hearing on his disciplinary report before Captain Hargrove. Mr. Johnson told Hargrove about being forced into sexual slavery at Allred and informed him that he had intentionally gotten a disciplinary case in order to protect himself. Captain Hargrove laughed and told Johnson that he would strip him of everything. Captain Hargrove proceeded to give Mr. Johnson the maximum allowable punishment. Mr. Johnson received restrictions on recreation, commissary, and property, as well as custody in a special cell restraint for 45 days. His classification dropped to a line 3, which will require him to remain in prison for more than two years past the date he otherwise would have been eligible for release.
85. Mr. Johnson was also sentenced to 15 days in solitary confinement. This fifteen days in punitive segregation was the first and only protection that Mr. Johnson ever received at Allred.
86. On January 17, 2002, Johnson went before the UCC on his seventh life endangerment claim. The Committee consisted of Defendants Vitolo, Norwood, and Taylor. After Mr. Johnson pleaded his case, Defendant Norwood told him that Johnson probably consented to the sex acts because “I personally believe you like d---.” All the
15

defendants laughed at this comment. Defendant Norwood told Mr. Johnson, “You like this s---…I’m convinced you are with this gang. I don’t think you need no safekeeping. You need to be placed on high security where you don’t have anything but one cellie and then you can get f---ed all the time.” Defendant Taylor then said Mr. Johnson should be on medium custody in general population and that he should just “learn to f--- or fight.”
87. Mr. Johnson started sobbing, screaming, and pleading with the Defendants not to send him back to general population. They laughed. Two officers then grabbed Mr. Johnson and dragged him out kicking and screaming for help.
88. The next day, prison officials issued a written denial of Mr. Johnson’s December 30, 2001 grievance due to insufficient evidence. In response, on January 23, 2002, Mr. Johnson filed a timely Step 2 grievance. This grievance described the measures that he had taken to ensure his safety, and informed prison officials about the ongoing sexual harassment and assault that he was enduring at Allred. Once again, he pled for safekeeping.
89. The final reply to Mr. Johnson’s Step 2 grievance, dated February 7, 2002, stated in the same stock language that his complaint had been investigated but no evidence showed that his life was in danger.
90. Once prison officials released Mr. Johnson from solitary confinement and placed him on special cell restraint in Building 8, Black and Hispanic gangs on the unit fought over him. Each claimed he was their property.
91. Mr. Johnson received several threatening letters from inmate gang members addressing him as “Coco.” Some of the letters threatened physical and sexual violence;
16

others warned that he had been “pegged” as a snitch and that he might as well “do as you are told.” One letter offered to buy him.
92. Desperate to get help before he was off cell restriction and back in general population, Mr. Johnson began writing to the ACLU and other outside organizations for assistance. His family also attempted to advocate on his behalf. On February 11, 2002, his grandmother sent a life endangerment claim to the TDCJ Ombudsman. On March 7, 2002, the Ombudsman’s office replied that they had investigated the claim and found no support for it.
93. On February 22, 2002, officials returned Mr. Johnson to general population in Building 8. That night, gang members assaulted Mr. Johnson and forced him to perform sex acts with other inmates. The attacks continued the next day. In despair, Mr. Johnson did not report either attack.
94. On February 24, 2002, the Mexican Mafia claimed definitive ownership over Mr. Johnson. That same day, the gang sold him to another inmate who forced him to perform oral sex.
95. While the Mexican Mafia owned Mr. Johnson, the sexual assaults and exploitation escalated dramatically. The gang sold him to scores of other inmates.
96. Gang leaders in Building 8 negotiated with gang leaders in Building 7 for a fee of $5 to $10 in commissary for Mr. Johnson’s sexual services. Gang leaders controlled his life and his body. They told him to whom he had been sold and what he must do for that inmate. They told him that if he refused he would be beaten or killed. As a sexual slave, he was repeatedly penetrated anally and forced to perform oral sex at the command of gang members.
17

97. On or around February 27, 2002, another Mexican gang bought Mr. Johnson’s sexual services for a week. He was forced to perform sex acts on eight inmates in the stairwell, in the shower, and in his cell.
98. On March 10, 2002, a white inmate called MJ came to Mr. Johnson’s cell. MJ said that the Mexican Mafia sent him and told Mr. Johnson, “I already paid them, I don’t want to f--- you, just suck my d---.”
99. While MJ was demanding sex from Mr. Johnson, Sergeant Thomas discovered MJ in Mr. Johnson’s cell and took MJ back to his assigned cell. Sergeant Thomas told Mr. Johnson, “I don’t care how you make your money, but I’m not tolerating prostitution on this car…and tell your pimp he’d better comply.” Sergeant Thomas did not issue a disciplinary report against MJ. MJ came back to Mr. Johnson’s cell to “finish up” on Monday, March 11, 2002.
100. On March 13, 2002, on or around 12:30 am, an officer unlocked the door to Mr. Johnson’s cell, allowing an inmate named JD to enter. JD told Mr. Johnson, “Some Mexican on 7 building sent me over. You know what it is.” When Mr. Johnson balked at his request, JD told Mr. Johnson that he had already paid for Mr. Johnson’s services. JD forced Mr. Johnson to perform oral sex.
101. On or about March 15, 2002, a white gang leader masturbated on Mr. Johnson in the shower. The showers were completely unguarded, and this type of humiliating assault became commonplace for Mr. Johnson. From the time Mr. Johnson was returned from cell restriction to general population on February 22, 2002, inmate gang members masturbated on him in the shower a minimum of 30 times. He could not take a shower without other inmates masturbating on him.
18

102. On March 17, 2002, around 10:30 am, a Mexican Mafia inmate called “Monster” approached Mr. Johnson in the dayroom and told him that he must go to the showers. When Mr. Johnson arrived, eight or nine other inmates were in the showers. Gang members also forced a mentally ill inmate, named Alazar, to the showers. The gang members then surrounded Mr. Johnson and Alazar and repeatedly forced Alazar to stick his finger in Mr. Johnson’s anus and lick it. Gang members then forced Alazar and Johnson to simultaneously masturbate each other.
103. Despite the multitude of horrors he had already experienced at Allred, the surrealistic and nightmarish nature of this “show” stunned Mr. Johnson. The gang members tried to force him to perform oral and anal sex with Alazar, but he refused. He was only spared this further degradation because the other inmates relented when called to a meal. However, gang members pushed Mr. Johnson down the back stairwell as punishment for refusing to comply with the gang’s order.
104. Immediately after this incident, Alazar ran to Defendant Lieutenant Paul in the dayroom to beg for help. Alazar was hysterical, but Defendant Paul refused to help him and ordered him to go away. Alazar then tackled the lieutenant and was hauled away on a disciplinary charge. When Mr. Johnson saw Defendant Paul after the meal, the lieutenant told him that he had better not act like Alazar or he would be “carried off the unit in a body bag.”
105. On March 23, 2002, Mr. Johnson returned from church to find a white inmate named Kevin in his cell. Kevin told Mr. Johnson that he had already paid for his services, and “I don’t want to lose my money.” Kevin then forced Mr. Johnson to perform oral sex.
19

106. On March 27, 2002, Defendant Bowman interrupted an attorney-client telephone call between Mr. Johnson and lawyers from the National Prison Project of the American Civil Liberties Union. Defendant Bowman ordered Mr. Johnson to get off the phone, and Mr. Johnson was taken into a meeting in Defendant Boyle’s office.
107. Defendant Boyle told Mr. Johnson that there was no concrete evidence to support his life endangerment claim and that since he had not been stabbed or “gutted,” prison officials would not place him in safekeeping. Defendant Boyle then coerced Mr. Johnson into signing a form waiving his life endangerment claims, threatening that unless he did so, “we are really going to f--- you over.” That same day, Mr. Johnson filed a grievance about the coercion.
108. On March 28, 2002, the ACLU sent a letter to Defendant Gary Johnson regarding Mr. Johnson’s situation and requesting that he have Mr. Johnson placed immediately in safekeeping in order to prevent further irreparable injury.
109. On March 29, 2002, after receiving a copy of the ACLU’s letter to Defendant Gary Johnson, Defendant Major Bowman called Mr. Johnson into a meeting and told him that “the ACLU don’t run s---” and that Mr. Johnson needs “to have his a-- kicked.” At the same meeting, Defendant Warden Treon said, “the ACLU don’t run my damn classification unit” and that Mr. Johnson “better not say [he] was coerced into s---.” Finally, Defendant Treon threatened Mr. Johnson, “With your classification, I can send you to a terrible place.”
110. On April 1, 2002, Mr. Johnson again went before the UCC. During the hearing, Defendant Wathen told Mr. Johnson, “Right now, we’re recommending to transfer you, and you’re going to see a ‘good friend’ of ours on another unit.” Defendant Wathen
20

then told Mr. Johnson that he would not be placed on safekeeping at this new unit because, he, Wathen, was recommending against it.
111. On April 5, 2002, Defendant Gary Johnson notified the ACLU that “due to his demeanor and orientation,” Mr. Johnson would be transferred from Allred and placed in safekeeping.
112. On or about April 10, 2002, more than 18 months after he first requested safekeeping and after repeatedly requesting such protection due to being sexually assaulted hundreds of times, Mr. Johnson was transferred to the Michael Unit and placed in safekeeping.
113. On April 10, 2002, at Mr. Johnson’s initial classification hearing at the Michael Unit, a UCC member, Major Fox, announced that an acquaintance of his at Alllred had put a note in Mr. Johnson’s file stating that Mr. Johnson is a manipulator who makes false complaints. Major Fox indicated that based on this note he considers Mr. Johnson to be a troublemaker, and that if Johnson ever makes any trouble at Michael Unit he, Major Fox, will make sure that Mr. Johnson is placed in close custody.
114. Because of his past sexual enslavement by gangs, and because gang members have branded him as a “snitch,” Mr. Johnson faces a substantial risk of further sexual assault, brutal beating, and even death, if he is returned to general population. Mr. Johnson remains in constant fear that prison officials will follow through with their threats to have him returned to general population in retaliation for petitioning for redress of his grievances administratively and through the courts.
115. Because he was sexually assaulted hundreds of times at Allred without any means of protection, Mr. Johnson lives in constant dread that he may have contracted HIV
21

or hepatitis. Defendants have never offered him appropriate medical treatment, psychiatric care, or counseling for the physical and psychic trauma resulting from these sexual assaults.
116. Defendants never ordered that any rape kits be taken or conducted any meaningful investigation of Mr. Johnson’s multiple claims that he was being sexually assaulted and enslaved.
117. On information and belief, Defendants have never imposed any significant discipline on any of Mr. Johnson’s assailants for sexually abusing and enslaving him, and have never sought prosecution of Mr. Johnson’s assailants.
118. On information and belief, TDCJ has never disciplined the Defendants for their failure to protect Mr. Johnson from sexual abuse and enslavement.
119. As a direct result of the Defendants’ acts and omissions, Mr. Johnson has suffered physical injuries, intense degradation and humiliation, excruciating emotional pain, and lasting psychic trauma.
CAUSES OF ACTION 120. With respect to each of the following claims, Defendants engaged in conduct with malice and reckless or callous indifference to the constitutional and statutory rights of Mr. Johnson.
First Claim for Relief Eighth Amendment 121. Defendants knew they had a legal obligation to protect Mr. Johnson from assault and sexual attack, and knew that their actions and omissions created a substantial risk of serious injury to Mr. Johnson. With deliberate indifference to Mr. Johnson’s personal safety, Defendants failed to protect him from substantial risk of serious harm, in
22

violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.
122. The deprivations of Mr. Johnson’s rights described herein constitute a risk of harm so grave that it violated contemporary standards of decency.
Second Claim for Relief Equal Protection --Racial Discrimination 123. In applying prison policies, practices and procedures to deny Mr. Johnson protection from sexual victimization, Defendants intentionally treated Mr. Johnson differently than other similarly situated inmates on account of his race, and motivated by racial animus deprived him of the equal protection of the laws, in violation of his rights under Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
Third Claim for Relief Equal Protection – Sexual Orientation 124. In applying prison policies, practices and procedures to deny Mr. Johnson protection from sexual victimization, Defendants subjected Mr. Johnson to an irrational and arbitrary classification based on his sexual orientation, and treated him differently than other similarly situated inmates based on their hostility and animus towards non-aggressive gay men, thereby denying him the equal protection of the laws, in violation of his rights under Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
RELIEF REQUESTED WHEREFORE, Plaintiff requests the following relief from this Court: 1. A declaratory judgment that the policies, practices, acts and omissions complained of herein violated Plaintiff’s rights; 2. A permanent injunction directing the Defendants to do the following:
23

A. Maintain the Plaintiff in safekeeping status so long as he remains in TDCJ custody;
B. Expunge the disciplinary violations on Plaintiff’s record caused by Defendants’ failure to protect Plaintiff;
C. Offer the Plaintiff appropriate medical and psychiatric treatment and counseling for the physical and psychic injury he has suffered as a result of their acts and omissions;
3. Compensatory damages against each Defendant, jointly and severally; 4. Punitive damages against each Defendant, jointly and severally; 5. Retention of jurisdiction over Defendants until such time that the Court is satisfied that defendants’ unlawful policies, practices, acts and omissions no longer exist and will not recur; 6. Reasonable attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and 7. Such further relief as the Court may deem just and proper.
24

RODERICK JOHNSON, PLAINTIFF BY:

Dated: April _____, 2002

________________________ Edward Tuddenham TX Bar No.: 20282300 1203 Newning Austin, TX 78704 Fax: 512/443-4258 Attorney for Plaintiff
Margaret Winter DC Bar No.: 174805 Craig Cowie CA Bar No: 213724 National Prison Project of the ACLU Foundation 733 15th Street, NW Suite 620 Washington, D.C. 20005 Fax: 202/393-4931 (Of Counsel Pending Pro Hac Vice Application)

25

 
 Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 1 of 31
CLOSED,JURY,M/IFP,MREF
U.S. District Court Northern District of Texas (Wichita Falls) CIVIL DOCKET FOR CASE #: 7:02−cv−00087−M−BF

Johnson v. Wathen, et al Assigned to: Chief Judge Barbara M.G. Lynn Referred to: Magistrate Judge Paul D Stickney Demand: $0 Related Case: 7:12−cv−00138−O Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Roderick Keith Johnson

Date Filed: 04/18/2002 Date Terminated: 10/26/2005 Jury Demand: Defendant Nature of Suit: 555 Prisoner Pet/Other: Prison Condition Jurisdiction: Federal Question
represented by Timothy L Hoffman Hoffman Sheffield Sauseda & Hoffman 1008 S Madison Amarillo, TX 79101 806/376−8903 Fax: 806/376−5345 Email: thoffman@hsshlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Amy Fettig Nat'l Prison Project of ACLU 733 15th St NW Suite 620 Washington, DC 20005 202/393−4930 Fax: 202/393−4931 FAX TERMINATED: 10/22/2004 Bar Status: Not Admitted

Craig Cowie Nat'l Prison Project of ACLU 733 15th St NW Suite 620 Washington, DC 20005 202/393−4930 TERMINATED: 10/22/2004 Bar Status: Not Admitted

Edward J Tuddenham Law Office of Edward Tuddenham 228 W. 137th St. New York, NY 10030 212−234−5953 Fax: 512/532−7780 Email: etudden@prismnet.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jeffrey Monks National Prison Project of the ACLU 915 15th St NW 7th Floor Washington, DC 20005 202/393−4930 Email: jmonks@npp−aclu.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 2 of 31
Margaret Winter National Prison Project of the ACLU 915 15th St NW 7th Floor Washington, DC 20005 202/393−4930 Fax: 202/393−4931 FAX Email: mwinter@npp−aclu.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Intervenor Plaintiff Michael Cooper TERMINATED: 01/26/2006
Intervenor Plaintiff Freddy Hurley TERMINATED: 01/26/2006

represented by Michael Cooper TDCJ No 370243 TDCJ Powledge Unit Rt 2 Box 2250 Palestine, TX 75882 PRO SE
represented by Freddy Hurley TDCJ No 453088 TDCJ Ramsey Unit 1100 FM 655 Rosharon, TX 77583 PRO SE

V. Defendant Gary NMN Johnson TERMINATED: 03/14/2005
Defendant Robert R Treon Senior Warden Allred Unit TERMINATED: 03/14/2005
Defendant Richard E Wathen

represented by Celamaine Cunniff Attorney General of Texas Law Enforcement Defense Div PO Box 12548 Capitol Station Austin, TX 78711−2548 512/463−2080 Fax: 512/495−9139 FAX Email: cela.cunniff@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Christopher Champion Wike Ogletree Deakins Nash Smoak & Stewart

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 3 of 31

PC 301 Congress Ave Suite 1150 Austin, TX 78701 512/344−4700 Fax: 512/344−4701 Email: chris.wike@ogletreedeakins.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris Attorney General of Texas PO Box 12548 Capitol Station Austin, TX 78711−2548 512/463−2080 Fax: 512/936−2109 FAX Email: david.harris@texasattorneygeneral.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper McCreary, Veselka, Bragg & Allen PC 700 Jeffrey Way Suite 100 Round Rock, TX 78665 512/323−3200 Fax: 512/323−3294 Email: mtepper@mvbalaw.com TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant
James D Mooneyham Assistant Warden Allred Unit TERMINATED: 03/14/2005

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant
Tommy Norwood Major

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant

represented by

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 4 of 31

Kenneth NMI Bright Major TERMINATED: 03/14/2005

Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant
Tracy Kuyava Administrative Technician Unit Classification Committee

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant
Tina Vitolo Administrative Technician Unit Classification Committee

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant
Vikki D Wright Director, Classification TERMINATED: 03/14/2005

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant
Joseph Boyle Captain TERMINATED: 03/14/2005

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 5 of 31

Bar Status: Admitted/In Good Standing

Defendant
Jimmy NMI Bowman Major

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant
Kenneth Willingham Sergeant TERMINATED: 03/14/2005

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant
Oscar NMN Paul Lieutenant TERMINATED: 03/14/2005

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant
Onessimo Ranjel Lieutenant

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant

represented by

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 6 of 31

David Taylor Lieutenant

Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Christopher Champion Wike (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David A Harris (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Matthew Tepper (See above for address) TERMINATED: 09/30/2005 Bar Status: Not Admitted

Defendant John Doe, &#035

Defendant John Doe, &#035

Defendant John Doe, &#035

Defendant John Doe, &#035

Defendant John Doe, &#035

V. Movant Terry Howard
Amicus Texas Department of Criminal Justice

represented by Meredith Rountree Owen & Rountree PO Box 40428 Austin, TX 78704 512/804−2661 Fax: 512/804−2685 FAX Email: meredithmr@earthlink.net LEAD ATTORNEY Bar Status: Admitted/In Good Standing
represented by Anthony Gerard Brocato , Jr Attorney General of Texas Capitol Station PO Box 12548 Austin, TX 78711−2548 512/463−2080 Email: anthony.brocato@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 7 of 31

Material Witness Eric Nails
Material Witness Victor Johnson

represented by Michael F Linz Law Office of Michael F Linz 701 Commerce Suite 400 Dallas, TX 75202−4599 214/748−1948 Fax: 214/748−9449 FAX Email: linz−law@msn.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Michael F Linz (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 04/18/2002 04/18/2002 04/18/2002
04/18/2002 04/23/2002 04/23/2002
04/23/2002 04/23/2002
06/06/2002 06/06/2002
07/01/2002 07/09/2002 07/09/2002

# Docket Text
1 Prisoner Civil Rights COMPLAINT filed; Filing Fee $ 150.00 Receipt # 36938 Date Received: 4/18/02 (ttm) (Entered: 04/18/2002)
2 MOTION by plaintiff Roderick Keith Johnson for leave to proceed without local counsel (ttm) (Entered: 04/18/2002)
3 SUMMONS(ES) issued for defendants Gary NMN Johnson, Robert R Treon, Richard E Wathen, James D Mooneyham, NFN Norwood, NFN Bright, NFN Kuyava, NFN Vitolo, Vikki D Wright, NFN Boyle, NFN Bowman, NFN Willingham, NFN Paul, NFN Rangel, NFN Taylor (Issued−15) (ttm) (Entered: 04/18/2002)
PRELIMINARY ASSIGNMENT TO Magistrate Judge Paul Stickney (ttm) (Entered: 04/19/2002)
4 MOTION by plaintiff Roderick Keith Johnson for Craig Cowie to appear pro hac vice (eat) (Entered: 04/24/2002)
4 ORDER granting [4−1] motion for Craig Cowie to appear pro hac vice ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 4/24/02 Page(s) 2 (eat) (Entered: 04/24/2002)
5 MOTION by plaintiff Roderick Keith Johnson for Margaret Winter to appear pro hac vice (eat) (Entered: 04/24/2002)
5 ORDER granting [5−1] motion for Margaret Winter to appear pro hac vice ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 4/24/02 Page(s) 2 (eat) (Entered: 04/24/2002)
6 MOTION by plaintiff Roderick Keith Johnson for Amy Fettig to appear pro hac vice (eat) (Entered: 06/07/2002)
6 ORDER granting [6−1] motion for Amy Fettig to appear pro hac vice ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 6/7/02 Page(s) 3 (eat) (Entered: 06/07/2002)
7 NOTICE of attorney appearance for plaintiff Roderick Keith Johnson by Amy Fettig (eat) (Entered: 07/02/2002)
8 CERTIFICATE OF INTERESTED PERSONS by defendants (ttm) (Entered: 07/09/2002)
9 ANSWER to Complaint by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 8 of 31

07/09/2002 07/09/2002 07/22/2002 07/24/2002
07/25/2002
07/31/2002
07/31/2002 08/01/2002
08/06/2002 08/08/2002 08/12/2002 08/14/2002 08/19/2002
08/19/2002
08/21/2002 08/22/2002 08/26/2002

Taylor (Attorney Celamaine Cunniff),; jury demand (ttm) (Entered: 07/09/2002)
9 DEMAND for jury trial by defendants (ttm) (Entered: 07/09/2002)
10 NOTICE of Service of Motion by defendants (ttm) (Entered: 07/10/2002)
11 NOTICE of PRESENTMENT OF MOTION AND BRIEF IN SUPPORT OF PARTIAL MOTION TO DISMISS TO PLAINTIFF FOR JOINT SUBMISSION by defendant Gary NMN Johnson (eat) (Entered: 07/22/2002)
12 NOTICE of PRESENTMENT OF MOTION AND BRIEF IN SUPPORT OF PARTIAL MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS PLAINTIFF'S EQUAL PROTECTION CLAIMS TO PLAINTIFF FOR JOINT SUBMISSION by defendant Gary NMN Johnson (ttm) (Entered: 07/24/2002)
13 NOTICE of PRESENTMENT OF MOTION AND BRIEF IN SUPPORT OF PARTIAL MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS PLAINTIFF'S EQUAL PROTECTION CLAIMS TO PLAINTIFF FOR JOINT SUBMISSION by defendant Gary NMN Johnson (ttm) (Entered: 07/25/2002)
14 SCHEDULING ORDER setting Docket call set for 5/5/03 ; Amending of Pleadings on 11/6/02 ; Deadline for filing of dispositive motions 1/6/03 ; Discovery cutoff 12/20/02 ; Pretrial materials due on 4/11/03 Pretrial conference for 9:00 5/5/03 ; ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 7/31/02 Page(s): 11 (ttm) (Entered: 07/31/2002)
14 JOINT STATUS REPORT ORDER. Joint Status report due on 9/27/02 ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 7/31/02 Page(s): 11 (ttm) (Entered: 07/31/2002)
15 NOTICE of PRESENTMENT RE: PLAINTIFF'S REPLY TO DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AGAINST THEM IN THEIR OFFICIAL CAPACITY by plaintiff Roderick Keith Johnson (ttm) (Entered: 08/01/2002)
16 ORDER REGARDING JUDGE BUCHMEYER'S SCHEDULING ORDER...see order for specifics. ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 8/6/02 Page(s) 2 (ttm) (Entered: 08/06/2002)
Letter confirming extension of time by plaintiff, defendant, Response to motion for judgment on the pleadings deadling extended to 8/19/02 (ttm) (Entered: 08/08/2002)
17 NOTICE of Presentment re: Plaintiff's Reply to Motion by Defendant to Dismiss by plaintiff Roderick Keith Johnson (ttm) (Entered: 08/12/2002)
18 JOINT MOTION SUBMISSION to dismiss for failure to state a claim by plaintiff, defendants (ttm) (Entered: 08/14/2002)
19 NOTICE of PRESENTMENT RE: PLEADINGS DISPUTE NO. 4 − PLAINTIFF'S REPLY TO DEFENDANTS ROBERT TREON AND VIKKI WRIGHT'S PARTIAL MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS PLAINTIFF'S EQUAL PROTECTION CLAIMS by plaintiff Roderick Keith Johnson (eat) (Entered: 08/20/2002)
20 NOTICE of PRESENTMENT RE: PLEADINGS DISPUTE NO. 3 − PLAINTIFF'S REPLY TO DEFENDANT GARY JOHNSON'S PARTIAL MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS PLAINTIFF'S EQUAL PROTECTION CLAIMS by plaintiff Roderick Keith Johnson (eat) (Entered: 08/20/2002)
21 JOINT MOTION SUBMISSION to dismiss by plaintiff, defendants (ttm) (Entered: 08/21/2002)
22 MOTION FOR MODIFICATION OF THE SCHEDULING ORDER by plaintiff Roderick Keith Johnson to extend time for filing designation of Plaintiff's Experts (ttm) (Entered: 08/22/2002)
23 NOTICE of initial disclosure by defendants (ttm) (Entered: 08/26/2002)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 9 of 31

08/28/2002 09/03/2002 09/03/2002 09/12/2002 09/23/2002 09/24/2002
09/25/2002 09/25/2002 09/25/2002 09/26/2002 10/03/2002
10/04/2002 10/04/2002 10/04/2002 10/07/2002 10/15/2002

24 ORDER denying [22−1] motion to extend time for filing designation of Plaintiff's Experts ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 8/29/02 Page(s) 1 (ttm) (Entered: 08/29/2002)
25 JOINT MOTION SUBMISSION for partial judgment on the pleadings to dismiss plaintiff's equal protection by plaintiff Roderick Keith Johnson, defendant Gary NMN Johnson (ttm) (Entered: 09/03/2002)
26 JOINT MOTION SUBMISSION for judgment on the pleadings to dismiss plaintiff's equal protection by plaintiff Roderick Keith Johnson, defendant Robert R Treon, defendant Vikki D Wright (ttm) (Entered: 09/03/2002)
27 NOTICE of First Supplemental Disclosure by defendant (ttm) (Entered: 09/12/2002)
Letter confirming extension of time by plaintiff, defendants, reset status report due for 10/4/02 (ttm) (Entered: 09/23/2002)
28 ORDER granting in part, denying in part [21−1] joint motion to dismiss, granting in part, denying in part [18−1] joint motion to dismiss for failure to state a claim...all claims for monetary damages against defendants in their official capacity are DISMISSED. IT IS FURTHER ORDERED that Defendants' motions to dismiss official cpacity claims for injunctive relief are DENIED ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 9/24/02 Page(s) 3 (ttm) (Entered: 09/24/2002)
29 NOTICE of Second Supplemental Disclosure by defendants (ttm) (Entered: 09/25/2002)
30 MOTION by defendants for leave to take plaintiff's deposition (ttm) (Entered: 09/26/2002)
31 MEMORANDUM by defendant in support of [30−1] motion for leave to take plaintiff's deposition (ttm) (Entered: 09/26/2002)
32 ORDER granting [30−1] motion for leave to take plaintiff's deposition ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 9/26/02 Page(s) 1 (ttm) (Entered: 09/26/2002)
33 NOTICE of PRESENTMENT OF MOTION AND BRIEF IN SUPPORT OF PARTIAL MOTION TO DISMISS FOR FAILURE TO EXHAUST AND MOTIONS FOR JUDGMENT ON THE PLEADINGS TO DISMISS TO PLAINTIFF FOR JOINT SUBMISSION by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor, defendant John Doe #1, defendant John Doe #2, defendant John Doe #3, defendant John Doe #4, defendant John Doe #5 (eat) (Entered: 10/03/2002)
34 NOTICE of THIRD SUPPLEMENTAL DISCLOSURE by defendants (ttm) (Entered: 10/04/2002)
35 DISCOVERY DISPUTE NO. 1 MOTION by plaintiff Roderick Keith Johnson to compel discovery (ttm) (Entered: 10/04/2002)
Motion(s) referred: [35−1] motion to compel discovery referred to Magistrate Judge Paul D. Stickney (eat) (Entered: 12/11/2002)
36 CORRECTED JOINT MOTION SUBMISSION regarding the equal protection claim against defendant Gary Johnson in his individual capacity by defendant Gary NMN Johnson (ttm) (Entered: 10/07/2002)
37 JOINT STATUS REPORT by plaintiff Roderick Keith Johnson, defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor, defendant John Doe #1, defendant John Doe #2, defendant John Doe #3, defendant John Doe #4, defendant John Doe #5 (eat) (Entered: 10/15/2002)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 10 of 31

10/18/2002 10/23/2002 10/24/2002
10/25/2002 10/28/2002 10/30/2002 10/30/2002 11/06/2002
11/08/2002 11/12/2002 11/12/2002
11/12/2002
11/15/2002 11/18/2002 11/25/2002

38 Designation of Experts by plaintiff Roderick Keith Johnson (eat) (Entered: 10/18/2002)
39 NOTICE of FOURTH SUPPLEMENTAL DISCLOSURE by defendants (ttm) (Entered: 10/23/2002)
40 RESPONSE by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor to [35−1] motion to compel discovery (ttm) (Entered: 10/24/2002)
41 NOTICE OF PRESENTMENT RE: PLEADINGS DISPUTE NO. 5 by plaintiff Roderick Keith Johnson (ttm) (Entered: 10/25/2002)
42 MOTION by plaintiff Roderick Keith Johnson to Take Depositions (ttm) (Entered: 10/28/2002)
43 UNOPPOSED MOTION by defendants for Psychiatric Exam of Plaintiff pursuant to FRCP 35 (ttm) (Entered: 10/30/2002)
44 MEMORANDUM by defendant in support of [43−1] motion for Psychiatric Exam of Plaintiff pursuant to FRCP 35 (ttm) (Entered: 10/30/2002)
45 Designation of Experts by plaintiff Roderick Keith Johnson, defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor, defendant John Doe #1, defendant John Doe #2, defendant John Doe #3, defendant John Doe #4, defendant John Doe #5 (eat) (Entered: 11/06/2002)
46 REPLY by plaintiff Roderick Keith Johnson to response to [35−1] motion to compel discovery (eat) (Entered: 11/08/2002)
47 JOINT MOTION SUBMISSION to dismiss by plaintiff, defendants (ttm) (Entered: 11/12/2002)
48 NOTICE of FIFTH SUPPLEMENTAL DISCLOSURE by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor (ttm) (Entered: 11/12/2002)
49 NOTICE of SIXTH SUPPLEMENTAL DISCLOSURE by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor (ttm) (Entered: 11/12/2002)
50 Agreement Letter filed by plaintiff, defendants (ttm) (Entered: 11/15/2002)
51 ORDER granting [42−1] motion to Take Depositions. Plaintiff is specifically granted leave to take the following depositions: all Defendants (15) and any expert or experts designated by Defendants ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 11/19/02 Page(s) 1 (eat) (Entered: 11/19/2002)
52 NOTICE of SEVENTH SUPPLEMENTAL DISCLOSURE by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor (ttm) (Entered: 11/25/2002)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 11 of 31

12/03/2002 12/05/2002 12/05/2002 12/05/2002 12/05/2002 12/11/2002 12/11/2002 12/11/2002 12/13/2002 12/13/2002 12/13/2002 12/17/2002 12/17/2002 12/17/2002 12/17/2002 12/18/2002 12/19/2002 12/19/2002 12/19/2002
12/19/2002

53 ORDER granting [43−1] motion for Psychiatric Exam of Plaintiff pursuant to FRCP 35 ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 12/3/02 Page(s) 1 (ttm) (Entered: 12/03/2002)
54 MOTION by defendant Gary NMN Johnson for expedited ruling on his motion for protective order (ttm) (Entered: 12/05/2002)
55 (DISCOVERY DISPUTE NO. 2) MOTION by defendant Gary NMN Johnson for protective order (ttm) (Entered: 12/05/2002)
56 MEMORANDUM by defendant Gary NMN Johnson in support of [55−1] motion for protective order (ttm) (Entered: 12/05/2002)
Motion(s) referred: [55−1] motion for protective order referred to Magistrate Judge Paul D. Stickney, [54−1] motion for expedited ruling on his motion for protective order referred to Magistrate Judge Paul D. Stickney (eat) (Entered: 12/11/2002)
57 ORDER granting [2−1] motion for leave to proceed without local counsel ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 12/11/02 Page(s) 1 (eat) (Entered: 12/11/2002)
58 ORDER granting [55−1] motion for protective order, granting [54−1] motion for expedited ruling on his motion for protective order ( Signed by Magistrate Judge Irma C. Ramirez ) Copies to counsel: 12/12/02 Page(s) 2 (ttm) (Entered: 12/12/2002)
59 Minute order: Telephone Conference Held before Magistrate Judge Irma C. Ramirez regarding defendant's motion for protective order Court Reporter: Electronic (ttm) (Entered: 12/12/2002)
60 RESPONSE by plaintiff Roderick Keith Johnson to [55−1] motion for protective order (ttm) (Entered: 12/13/2002)
61 ORDER setting hearing: Motion hearing set for 10:00 12/20/02 in Dallas for [35−1] motion to compel discovery ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 12/13/02 Page(s): 1 (ttm) (Entered: 12/13/2002)
62 NOTICE of Presentment of Defendants' Partial Motion for Summary Judgment and Brief in Support by defendants (ttm) (Entered: 12/16/2002)
63 MOTION by plaintiff Roderick Keith Johnson for temporary restraining order (ttm) (Entered: 12/17/2002)
64 MEMORANDUM by plaintiff Roderick Keith Johnson in support of [63−1] motion for temporary restraining order (ttm) (Entered: 12/17/2002)
65 MOTION by plaintiff Roderick Keith Johnson to extend time to reply to defendants' partial motion for summary judgment (ttm) (Entered: 12/17/2002)
66 NOTICE of EIGHTH SUPPLEMENTAL DISCLOSURE by defendants (ttm) (Entered: 12/17/2002)
67 SUPPLEMENTAL DOCUMENT to [64−1] support memorandum by plaintiff Roderick Keith Johnson (ttm) (Entered: 12/18/2002)
68 ORDER OF REFERENCE: [63−1] motion for temporary restraining order referred to Magistrate Judge Paul D. Stickney ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 12/20/02 Page(s): 1 (ttm) (Entered: 12/20/2002)
Motion(s) referred: [63−1] motion for temporary restraining order referred to Magistrate Judge Paul D. Stickney (ttm) (Entered: 12/20/2002)
69 ORDER granting [65−1] motion to extend time to reply to defendants' partial motion for summary judgment Response to motion reset to 1/10/03 for [25−1] joint motion for partial judgment on the pleadings to dismiss plaintiff's equal protection ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 12/20/02 Page(s) 1 (ttm) (Entered: 12/20/2002)
70 MOTION by defendants for leave to file Brief in excess of Court's page limits (ttm) (Entered: 12/20/2002)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 12 of 31

12/20/2002 12/30/2002 01/02/2003 01/02/2003
01/06/2003
01/06/2003 01/06/2003
01/10/2003 01/10/2003 01/17/2003 01/22/2003 01/23/2003
01/23/2003
01/24/2003 01/27/2003 01/27/2003 01/27/2003 02/05/2003

71 Minute order: Motion Hearing Held before Magistrate Judge Paul D. Stickney Court Reporter: Electronic #4089−4090 (ttm) (Entered: 12/23/2002)
72 ORDER granting [70−1] motion for leave to file Brief in excess of Court's page limits ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 12/31/02 Page(s) 1 (eat) (Entered: 12/31/2002)
73 ORDER granting [25−1] joint motion for partial judgment on the pleadings to dismiss plaintiff's equal protection ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 1/3/03 Page(s) 1 (eat) (Entered: 01/03/2003)
74 ORDER granting [26−1] joint motion for judgment on the pleadings to dismiss plaintiff's equal protection. ORDERED that the Defendants Treon and Wright's Partial Motion for Judgment to Dismiss is granted and Plaintiff's equal protection claims against Defendants Treon and Wright are dismissed in their entirety ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 1/3/03 Page(s) 1 (eat) (Entered: 01/03/2003)
75 RESPONSE IN OPPOSITION by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor to [63−1] motion for restraining order (ttm) (Entered: 01/06/2003)
76 UNOPPOSED MOTION by defendants to extend time to file joint motion for submission of motion for summary judgment (ttm) (Entered: 01/06/2003)
77 ORDER granting [76−1] motion to extend time to file joint motion for submission of motion for summary judgment reset joint motion filing deadline for 1/24/03 ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 1/7/03 Page(s) 1 (ttm) (Entered: 01/07/2003)
78 NOTICE of Presentment of Response to Defendants' Partial Motion for Summary Judgment by plaintiff Roderick Keith Johnson (ttm) (Entered: 01/10/2003)
79 ORDER Motion hearing set in Dallas for 2:00 1/16/03 for [63−1] motion for temporary restraining order ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 1/10/03 Page(s) 1 (ttm) (Entered: 01/10/2003)
80 MOTION by plaintiff Roderick Keith Johnson for leave to file Response Brief in Opposition to defendants' partial motio for summary judgment and appendix in excess of the court's page limits (ttm) (Entered: 01/17/2003)
81 Minute order: Motion Hearing Held before Magistrate Judge Paul D. Stickney Court Reporter: Janssen, G (ttm) (Entered: 01/22/2003)
82 ORDER granting [80−1] motion for leave to file Response Brief in Opposition to defendants' partial motion for summary judgment and appendix in excess of the court's page limits ( Signed by Judge Jerry Buchmeyer ) Copies to counsel: 1/23/03 Page(s) 1 (ttm) (Entered: 01/23/2003)
84 ORDER (Protective order)...it is hereby ORDERED that defendants and all those in privity with defendants shall refrain from retaliating against or otherwise tempering with any witness or potential witness in this case, pending further order of this Court. ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 1/24/03 Page(s) 1 (ttm) (Entered: 01/24/2003)
83 JOINT MOTION SUBMISSION for summary judgment by plaintiff, defendants (bound document unable to scan) (ttm) (Entered: 01/24/2003)
85 NOTICE of Final Pretrial Disclosures by defendants (ttm) (Entered: 01/27/2003)
86 Final Pretrial Disclosures by defendants (ttm) (Entered: 01/27/2003)
87 Pretrial Disclosures by plaintiff Roderick Keith Johnson (ttm) (Entered: 01/27/2003)
88 RESPONSE by defendant Gary NMN Johnson, defendant Robert R Treon, defendant Richard E Wathen, defendant James D Mooneyham, defendant NFN Norwood, defendant NFN Bright, defendant NFN Kuyava, defendant NFN Vitolo, defendant Vikki D Wright, defendant NFN Boyle, defendant NFN Bowman, defendant NFN

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 13 of 31

02/11/2003 02/25/2003 02/28/2003 03/03/2003 03/04/2003 03/05/2003 03/07/2003 03/10/2003
03/10/2003
03/24/2003 03/26/2003 03/28/2003
04/04/2003 04/08/2003

Willingham, defendant NFN Paul, defendant NFN Rangel, defendant NFN Taylor in opposition to [87−1] remark (ttm) (Entered: 02/06/2003)
89 SUPPLEMENTAL DOCUMENT to [87−1] Pretrial Disclosures by plaintiff Roderick Keith Johnson (ttm) (Entered: 02/11/2003)
90 RESPONSE in Opposition (OBJECTIONS) re 89 Supplemental Pretrial Disclosures filed by Defendants Bowman, Boyle, Bright, Gary Johnson, Kuyava, James D Mooneyham, Norwood, Paul, Rangel, Taylor, Robert R Treon, Vitolo, Richard E Wathen, Willingham, Vikki D Wright. (ttm, ) (Entered: 02/25/2003)
91 NOTICE OF NINTH SUPPLEMENTAL DISCLOSURE by NFN Bowman, NFN Boyle, NFN Bright, Gary NMN Johnson, NFN Kuyava, James D Mooneyham, NFN Norwood, NFN Paul, NFN Rangel, NFN Taylor, Robert R Treon, NFN Vitolo, Richard E Wathen, NFN Willingham, Vikki D Wright (eat, ) (Entered: 02/28/2003)
92 MOTION for Emergency Evidentiary Hearing Regarding Violation of Protective Order by Roderick Keith Johnson (ttm, ) (Entered: 03/03/2003)
93 ORDER: Evidentiary Hearing set for 3/7/2003 03:00 PM before Paul D Stickney. (Signed by Judge Paul D Stickney on 3/4/03) (ttm, ) (Entered: 03/05/2003)
94 NOTICE OF ATTORNEY APPEARANCE by Meredith Martin Rountree as to Terry Howard re 84 Protective Order (ttm, ) (Entered: 03/06/2003)
95 Minute Entry for proceedings held before Judge Paul D Stickney : Motion Hearing held on 3/7/03 re 92 Motion for Hearing filed by Roderick Keith Johnson, Telephone Conference held on March 7, 2003. (Court Reporter electronic.) (eat, ) (Entered: 03/10/2003)
96 ORDER denying without prejudice 92 Motion for Hearing...ORDERED that Defendants submit for in camera inspection, all prison disciplinary records for inmate Terry Howard for the year of 2003 for the purpose of determining whether those records contain information that would indicate a violation of this Court's Protective Order of 1/23/03. (Signed by Judge Paul D Stickney on 3/10/03) (ttm, ) (Entered: 03/10/2003)
97 ORDER The Court has conducted an in camera inspection of the relevant disciplinary records and concludes that there is no indication in the disciplinary records that prison officials violated the Court's Protective Order of 1/23/03 with respect to Terry Howard. Nonetheless, the Court will maintain the disciplinary records of Terry Howard under seal in the event that future developments require the Court to reconsider the issue of whether the Protective Order of 1/23/03 has been violated. Accordingly, it is hereby ORDERED that the Clerk of Court file the disciplinary records of Terry Howard under seal. The sealed records will be kept in Dallas in the Judge's copy file. (Signed by Judge Paul D Stickney on 3/10/03) (ttm, ) (Entered: 03/10/2003)
98 MOTION for Reconsideration re 97 Order,, by Terry Howard (ttm, ) (Entered: 03/25/2003)
99 NOTICE OF TENTH SUPPLEMENTAL DISCLOSURE by Gary NMN Johnson, NFN Kuyava, James D Mooneyham, NFN Norwood, NFN Paul, NFN Rangel, NFN Taylor, Robert R Treon, NFN Vitolo, Richard E Wathen, NFN Willingham, Vikki D Wright (eat, ) (Entered: 03/27/2003)
100 MOTION to Stay Pretrial Materials including the filing of the Joint Pretrial Order, Pretrial Conference, and Trial Setting by NFN Bowman, NFN Boyle, NFN Bright, Gary NMN Johnson, NFN Kuyava, James D Mooneyham, NFN Norwood, NFN Paul, NFN Rangel, NFN Taylor, Robert R Treon, NFN Vitolo, Richard E Wathen, NFN Willingham, Vikki D Wright (eat, ) (Entered: 03/28/2003)
101 ORDER denying 98 Motion for Reconsideration (Signed by Judge Jerry Buchmeyer on 4/4/03) (ttm, ) (Entered: 04/07/2003)
102 ORDER denying 83 Motion for Summary Judgment (Signed by Judge Jerry Buchmeyer on 4/8/03) (ttm, ) (Entered: 04/09/2003)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 14 of 31

04/11/2003 04/15/2003
04/17/2003 04/23/2003 05/07/2003
05/07/2003
05/07/2003 05/07/2003 05/19/2003
05/19/2003 05/22/2003 05/27/2003 05/27/2003 05/28/2003
05/28/2003
06/02/2003

103 MOTION for Extension of Time to File Pretrial Materials by Roderick Keith Johnson (ttm, ) (Entered: 04/11/2003)
104 ORDER granting 100 Motion to Stay. The deadline for filing pre−trial materials, the date for pretrial conference and the trial date for this action, each established pursuant to the Court's Scheduling Order, are hereby VACATED. (Signed by Judge Jerry Buchmeyer on 4/15/03) (eat, ) (Entered: 04/17/2003)
105 ORDER denying 47 Motion to Dismiss. See order for specifics. (Signed by Judge Jerry Buchmeyer on 4/17/03) (ttm, ) (Entered: 04/18/2003)
106 ORDER denying as MOOT MOTION for Extension of Time to File Pretrial Materials by Roderick Keith Johnson (ttm, ) (Signed by Judge Jerry Buchmeyer on 4/23/03) (ttm, ) (Entered: 04/24/2003)
107 NOTICE OF INTERLOCUTORY APPEAL as to 102 Order on Motion for Summary Judgment by NFN Bowman, NFN Boyle, NFN Bright, Gary NMN Johnson, NFN Kuyava, James D Mooneyham, NFN Norwood, NFN Paul, NFN Rangel, NFN Taylor, Robert R Treon, NFN Vitolo, Richard E Wathen, NFN Willingham, Vikki D Wright. Filing fee $ 105.00, receipt number 37574. (ttm, ) (Entered: 05/07/2003)
108 MOTION TO CERTIFY THE EXHAUSTION OF ADMINISTRATIVE REMEDIES ISSUE FOR INTERLOCUTORY APPEAL by NFN Bowman, NFN Boyle, NFN Bright, Gary NMN Johnson, NFN Kuyava, James D Mooneyham, NFN Norwood, NFN Paul, NFN Rangel, NFN Taylor, Robert R Treon, NFN Vitolo, Richard E Wathen, NFN Willingham, Vikki D Wright (ttm, ) (Entered: 05/07/2003)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 107 Notice of Appeal, (ttm, ) (Entered: 05/07/2003)
109 ORDER denying 35 Motion to Compel (Signed by Judge Paul D Stickney on 5/7/03) (ttm, ) (Entered: 05/08/2003)
110 NOTICE OF INTERLOCUTORY APPEAL as to 105 Order on Motion to Dismiss by Jimmy NMI Bowman, Joseph Boyle, Kenneth NMI Bright, Gary NMN Johnson, Tracy Kuyava, James D Mooneyham, Tommy Norwood, Oscar NMN Paul, Onessimo Ranjel, David Taylor, Robert R Treon, Tina Vitolo, Richard E Wathen, Kenneth Willingham, Vikki D Wright. (ttm, ) (Entered: 05/19/2003)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 110 Notice of Appeal, (ttm, ) (Entered: 05/19/2003)
Vacation Letter as to Celamiane Cunniff for dates 5/30/03−6/13/03. (ttm, ) (Entered: 05/22/2003)
111 RESPONSE to Motion re 108 MOTION for Certificate of Appealability filed by Roderick Keith Johnson. (ttm, ) (Entered: 05/27/2003)
112 Memorandum in Support re 111 Response to Motion filed by Roderick Keith Johnson. (ttm, ) (Entered: 05/27/2003)
USCA Case Number 03−10455 for 107 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo. (ttm, ) (Entered: 05/28/2003)
113 DESIGNATION of Record on Appeal by Jimmy NMI Bowman, Joseph Boyle, Kenneth NMI Bright, Gary NMN Johnson, Tracy Kuyava, James D Mooneyham, Tommy Norwood, Oscar NMN Paul, Onessimo Ranjel, David Taylor, Robert R Treon, Tina Vitolo, Richard E Wathen, Kenneth Willingham, Vikki D Wright re 107 Notice of Appeal, (ttm, ) (Entered: 05/28/2003)
USCA Case Number 03−10505 for 110 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo. (ttm, ) (Entered: 06/03/2003)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 15 of 31

06/03/2003 06/04/2003 06/09/2003 07/29/2003
08/08/2003 08/12/2003 01/16/2004 01/22/2004 02/12/2004 04/02/2004 04/15/2004 09/29/2004 10/12/2004

USCA Appeal Fees received $ 105 receipt number 37621 re 110 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo (ttm, ) (Entered: 06/03/2003)
Certified and Transmitted Record on Appeal to US Court of Appeals re 110 Notice of Appeal,, 107 Notice of Appeal. Appeal record consists of seven (7) volumes of case papers and a certified copy of up−to−date docket entries bearing the NO# 03−10455 (eat, ) (Entered: 06/04/2003)
114 ORDER granting 108 MOTION TO CERTIFY THE EXHAUSTION OF ADMINISTRATIVE REMEDIES ISSUE FOR INTERLOCUTORY APPEAL (Signed by Judge A. Joe Fish on 6/9/03) (ttm, ) (Entered: 06/09/2003)
115 ORDER of USCA as to 110 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo, 107 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo. IT IS ORDERED that leave to appeal from the interlocutory order of the United States District Court for the Northern District of Texas, Wichita Falls, entered on April 8, 2003, is GRANTED. (ttm, ) (Entered: 07/29/2003)
USCA Appeal Fees received $ 105 receipt number 37747 re 110 Notice of Appeal, filed by David Taylor, Tommy Norwood, Joseph Boyle, Tracy Kuyava, Oscar NMN Paul, Kenneth Willingham, Kenneth NMI Bright, Gary NMN Johnson, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, James D Mooneyham, Robert R Treon, Vikki D Wright, Tina Vitolo (eat, ) (Entered: 08/08/2003)
Certified and Transmitted Supplemental Record on Appeal to US Court of Appeals re 110 Notice of Appeal,, 107 Notice of Appeal. Supplemental appeal record consists of one volume of case papers and a certified copy of up−to−date docket entries bearing the NO# 03−10455. (eat, ) (Entered: 08/12/2003)
116 UNOPPOSED MOTION TO SUPPLEMENT RECORD ON APPEAL by Jimmy NMI Bowman, Joseph Boyle, Kenneth NMI Bright, Gary NMN Johnson, Tracy Kuyava, James D Mooneyham, Tommy Norwood, Oscar NMN Paul, Onessimo Ranjel, David Taylor, Robert R Treon, Tina Vitolo, Richard E Wathen, Kenneth Willingham, Vikki D Wright (ttm, ) (Entered: 01/22/2004)
117 ORDER granting 116 Motion to Supplement Record on Appeal (Signed by Judge Jerry Buchmeyer on 1/22/04) (ttm, ) (Entered: 01/26/2004)
Certified and Transmitted Supplemental Record on Appeal to US Court of Appeals re 110 Notice of Appeal,, 107 Notice of Appeal − Supplemental record consists of one volume of case papers and a certified copy of up−to−date docket entries bearing the NO# 03−10455 (eat, ) (Entered: 02/12/2004)
119 ORDER of USCA as to 107 Notice of Appeal, 110 Notice of Appeal: IT IS ORDERED that appellants' motion to strike appellee's brief is DENIED. IT IS FURTHER ORDERED that appellee's motion to withdraw document that appears at R6:1502 from the record on appeal is granted.(ttm, ) (Entered: 04/21/2004)
118 ORDER of USCA as to 107 Notice of Appeal, 110 Notice of Appeal, IT IS ORDERED that the Appellee's motion to withdraw the document that appears at R6:1502 from the record on appeal is GRANTED. (ttm, ) (Entered: 04/15/2004)
120 AMENDED SCHEDULING ORDER: Pretrial Conference set for 7/11/2005 09:00 AM before Judge Jerry Buchmeyer. Pretrial Materials due by 6/10/2005. Trial setting July, 2005 (4 week docket) (Signed by Judge Jerry Buchmeyer on 9/29/04) (ttm, ) (Entered: 09/30/2004)
121 NOTICE OF INTENT TO FILE MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXPERT UPON ISSUANCE OF MANDATE by Roderick Keith

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 16 of 31

10/19/2004 10/19/2004
10/19/2004 10/22/2004 10/22/2004 10/22/2004 10/26/2004 11/01/2004 11/01/2004 11/15/2004 11/17/2004 11/19/2004 11/22/2004

Johnson (eat, ) (Entered: 10/12/2004)
122 MOTION for Leave to Designate Additional Expert by Roderick Keith Johnson (ttm, ) (Entered: 10/19/2004)
123 Opinion of USCA (certified copy) in accordance with USCA judgment re 107 Notice of Appeal, 110 Notice of Appeal: Johnson's motions to dismiss Nos. 03−10455 and 03−10505 are DENIED. We REVERSE the district court's judgment to the extent that it concluded that Johnson had exhausted: race−based Equal Protection claims; claims against defendants Paul and Willingham; claims against Bright and Kuyava as regards the 9/6/00 UCC; claims against Mooneyham and Vitolo as regards the 12/13/00 UCC; claims against Bowman, Boyle, and Kuyava as regards the 2/14/01 UCC; and claims against Vitolo and Wathen as regards the 2/21/01 UCC. See supra Part II.D. Turning to the exhausted claims, we also REVERSE the district court's judgment to the extent that it denied qualified immunity to Executive Director Johnson, Treon and Wright. The district court's judgment is otherwise AFFIRMED. The case is REMANDED to the district court, for dismissal of the claims listed above and for further proceedings on the remaining claims. Each party shall bear its own costs. MOTIONS DENIED; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. (ttm, ) (Entered: 10/20/2004)
124 JUDGMENT/MANDATE of USCA as to 107 Notice of Appeal, 110 Notice of Appeal: It is ordered and adjudged that the judgment of the District Court is affirmed in part and reversed in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. Issued as Mandate: 10/14/04. (ttm, ) (Entered: 10/20/2004)
125 DISCOVERY DISPUTE NO. 1 MOTION to Compel Discovery by Roderick Keith Johnson (ttm, ) (Entered: 10/25/2004)
126 Designation of lead counsel Margaret Winter for Plaintiff Roderick Keith Johnson. Jeffrey Monks enters his appearance in place of Amy Fettig and Craig Cowie, who are no longer employed by the ACLU National Prison Project. (ttm, ) (Entered: 10/25/2004)
127 AFFIDAVIT OF MARGARET WINTER re 125 DISCOVERY DISPUTE NO. 1 MOTION to Compel. (ttm, ) (Entered: 10/25/2004)
128 Application and Order for Admission Pro Hac Vice by Jeffrey Monks for Roderick Keith Johnson (Signed by Judge Jerry Buchmeyer on 10/26/04) (ttm, ) (Entered: 10/28/2004)
Appeal Record Returned: 107 Notice of Appeal,, 110 Notice of Appeal, (eat, ) (Entered: 11/01/2004)
129 ORDER: Motion Hearing set for 11/15/2004 09:00 AM before Magistrate Judge Paul D Stickney in Dallas. (Signed by Judge Paul D Stickney on 11/1/04) (ttm, ) (Entered: 11/02/2004)
130 Minute Entry for proceedings held before Judge Paul D Stickney : Motion Hearing held on 11/15/04 re 125 Motion to Compel filed by Roderick Keith Johnson. (ttm, ) (Entered: 11/15/2004)
131 ORDER granting in part and denying in part 125 Motion to Compel. Plaintiff's motion to compel regarding the following requests is GRANTED: see order for further specifics. (Signed by Judge Paul D Stickney on 11/17/04) (ttm, ) (Entered: 11/18/2004)
132 ORDER granting 122 Motion for Leave to Designate Additional Expert. The Plaintiff may designate Dr. Terry Kupers as an additional psychiatric expert and shall submit Dr. Kuper's report by 12/15/04. (Signed by Judge Jerry Buchmeyer on 11/19/04) (ttm, ) (Entered: 11/23/2004)
133 ORDER: that, within 30 days of the date of this order, the parties shall submit a proposed agreed order dismissing the claims and defendants as directed by the Court of Appeals. (Signed by Judge Jerry Buchmeyer on 11/22/04) (ttm, ) (Entered: 11/23/2004)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 17 of 31

11/22/2004 12/01/2004
12/07/2004 12/07/2004 12/09/2004 12/15/2004
12/22/2004 12/22/2004
12/30/2004 01/03/2005 01/05/2005
01/13/2005 01/24/2005 01/28/2005 02/01/2005 02/03/2005 02/03/2005 02/10/2005

134 MOTION to Expedite Consideration of Plaintiff's Motion for Leave to Designate Additional Expert by Roderick Keith Johnson (ttm, ) (Entered: 11/23/2004)
135 ORDER: The Court has selected this case to be considered for enrollment in the Court's Electronic Case Filing (ECF) pilot project...Therefore, within 20 days of the date of this order, the parties shall each file a "Statement Regarding ECF" indicating whether they will or will not consent to this case being handled as a pilot Electronic Case File...see order for specifics. (Signed by Judge Jerry Buchmeyer on 12/1/04) (ttm, ) (Entered: 12/01/2004)
136 UNOPPOSED MOTION to Amend 131 Order on Motion to Compel by Roderick Keith Johnson (ttm, ) (Entered: 12/07/2004)
137 AFFIDAVIT OF JEFFREY MONKS re 136 UNOPPOSED MOTION to Amend 131 Order on Motion to Compel. (ttm, ) (Entered: 12/07/2004)
138 ORDER granting 136 Motion to Amend to include the following paragraphs: see order for further specifics. (Signed by Judge Paul D Stickney on 12/9/04) (ttm, ) (Entered: 12/09/2004)
139 ORDER granting 134 Motion to Expedite. It is hereby ORDERED that Plaintiff may designate Dr Terry Kupers as an additional psychiatric expert and submit Dr. Kupers' report by 2/15/05. (Signed by Judge Jerry Buchmeyer on 12/15/04) (ttm, ) (Entered: 12/15/2004)
140 NOTICE OF STATEMENT REGARDING ELECTRONIC CASE FILING by Roderick Keith Johnson (eat, ) (Entered: 12/22/2004)
141 NOTICE OF JOINT PROPOSED ORDER OF PARTIAL DISMISSAL by Vikki D Wright, Joseph Boyle, Jimmy NMI Bowman, Kenneth Willingham, Oscar NMN Paul, Onessimo Ranjel, David Taylor, Roderick Keith Johnson, Gary NMN Johnson, Robert R Treon, Richard E Wathen, James D Mooneyham, Tommy Norwood, Kenneth NMI Bright, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 12/23/2004)
142 Court Request for Recusal: Judge Jerry Buchmeyer recused. (ttm, ) (Entered: 01/04/2005)
143 ORDER REASSIGNING CASE. Case reassigned to Judge Barbara M. G. Lynn for all further proceedings. Case number 7:02−CV−0087−M (Signed by Judge A. Joe Fish on 1/3/05) (ttm, ) (Entered: 01/04/2005)
144 ORDER SETTING TELEPHONE CONFERENCE: Telephone Conference set for 1/13/2005 02:00 PM before Judge Barbara M. G. Lynn. The parties should be prepared to discuss the schedule for this case. Plaintiff's counsel is instructed to set up the conference call with the Court...and with all parties involved. (Signed by Judge Barbara M. G. Lynn on 1/5/05) (ttm, ) (Entered: 01/05/2005)
145 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Telephone Conference. (Court Reporter Charyse Crawford.) (ttm, ) (Entered: 01/21/2005)
146 NOTICE OF ELEVENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 01/24/2005)
147 NOTICE OF TWELFTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 01/28/2005)
148 Supplemental Designation of Experts by Roderick Keith Johnson. (ttm, ) (Entered: 02/01/2005)
149 DEFENDANTS' PRIVILEGE LOG(ttm, ) (Entered: 02/04/2005)
150 DEFENDANTS' NOTICE OF THIRTEENTH SUPPLEMENTAL DISCLOSURE(ttm, ) (Entered: 02/04/2005)
151 NOTICE OF FOURTEENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 02/10/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 18 of 31

02/14/2005 02/22/2005 02/22/2005 03/14/2005
03/17/2005
03/21/2005 03/22/2005 04/07/2005 04/12/2005 04/13/2005 04/14/2005 04/14/2005 04/15/2005 04/21/2005

152 AMENDED SEVENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo re 52 Seventh Notice of Disclosure (ttm, ) (Entered: 02/15/2005)
153 NOTICE of Change of Address by Jeffrey Monks, Margaret Winter, counsel for Roderick Keith Johnson. New address is: National Prison Project of the ACLU, 915 15th Street, NW, 7th Floor, Washington, DC 20005. (ttm, ) (Entered: 02/22/2005)
154 NOTICE OF FIFTEENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 02/22/2005)
155 ORDER: IT IS ORDERED that: (1) Plaintiff's claims against Defendants Gary Johnson, Vikki Wright and Robert Treon are DISMISSED, on the ground that those defendants are entitled to qualified immunity; (2) Plaintiff's claims against Defendants Kenneth Bright, Joseph Boyle, Kenneth Willingham, James Mooneyham, and Oscar Paul are DISMISSED WITHOUT PREJUDICE on the ground that Plaintiff failed to exhaust administrative remedies with respect to those claims; (3) Plaintiff's claims that Defendants discriminated against him because of his race are DISMISSED WITHOUT PREJUDICE, on the ground that Plaintiff failed to exhaust his administrative remedies with respect to those claims; (4) Plaintiff's claims arising out of the Unit Classification Committee decisions on 9/6/00, 12/13/00, 2/14/01 and 2/21/01 are DISMISSED WITHOUT PREJUDICE, on the ground that Plaintiff failed to exhaust his administrative remedies with respect to those claims. (Signed by Judge Barbara M. G. Lynn on 3/14/05) (ttm, ) (Entered: 03/14/2005)
156 AMENDED SCHEDULING ORDER: Jury Trial set for 9/19/05 in Wichita Falls, Texas. Pretrial Conference set for 9/15/2005 01:30 PM before Judge Barbara M. G. Lynn in Dallas, Texas. Motions in Limine, if any, are due by 8/31/2005. Proposed Pretrial Order due by 8/17/2005. Pretrial Materials due by 8/17/2005. See order for further specifics. (Signed by Judge Barbara M. G. Lynn on 3/17/05) (ttm, ) (Entered: 03/17/2005)
157 DEFENDANTS' DESIGNATION OF CO−COUNSEL by Matthew Tepper, David A Harris on behalf of Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 03/21/2005)
158 ORDER: The caption is hereby modified to reflect the fact that several Defendants have been dismissed from this case. The dismissed Defendants are now removed from the caption. This case shall now be captioned: Johnson v Wathen, et al. (Signed by Judge Barbara M. G. Lynn on 3/22/05) (ttm, ) (Entered: 03/22/2005)
159 MOTION for Order Requiring Defendants to Pay Expert's Fee by Roderick Keith Johnson (ttm, ) (Entered: 04/07/2005)
160 ORDER REFERRING MOTION to Judge Stickney: 159 Motion for Miscellaneous Relief filed by Roderick Keith Johnson, (Signed by Judge Barbara M. G. Lynn on 4/12/05) (ttm, ) (Entered: 04/12/2005)
161 ORDER: Motion Hearing set for 4/14/2005 02:00 PM before Magistrate Judge Paul D Stickney on Plaintiff's Motion for Order Requiring Defendants to Pay Expert's Fee. (Signed by Judge Paul D Stickney on 4/13/05) (grj, ) (Entered: 04/13/2005)
162 RESPONSE IN OPPOSITION to Motion re 159 MOTION for Order Requiring Defendants to Pay Expert's Fee filed by defendants (ttm, ) (Entered: 04/14/2005)
163 Minute Entry for proceedings held before Judge Paul D Stickney : Motion Hearing held on 4/14/05 re 159 Motion for Miscellaneous Relief filed by Roderick Keith Johnson,. (eat, ) (Entered: 04/15/2005)
164 ORDER granting 159 Motion requiring Defendants to Pay Expert's Fee. Defendants are ordered to pay the fee between September 1, 2005 and September 19, 2005. Futhermore, the deposition shall not exceed one day. (Signed by Judge Paul D Stickney on 4/14/05) (eat, ) (Entered: 04/15/2005)
165 SECOND RENEWED MOTION to Compel Discovery by Roderick Keith Johnson (ttm, ) Additional attachment(s) added on 4/21/2005 (ttm, ). (Entered: 04/21/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 19 of 31

05/06/2005 05/09/2005 05/11/2005 05/19/2005 05/23/2005 05/24/2005 06/06/2005 06/27/2005 06/29/2005
06/29/2005 07/01/2005
07/01/2005 07/11/2005 07/12/2005 07/13/2005 07/14/2005
07/14/2005

166 NOTICE OF SIXTEENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 05/06/2005)
167 ORDER REFERRING MOTION to Judge Judge Stickney: 165 Second Motion to Compel filed by Roderick Keith Johnson, (Signed by Judge Barbara M. G. Lynn on 5/9/05) (ttm, ) (Entered: 05/09/2005)
168 ORDER: Motion Hearing set for 5/23/2005 10:00 AM before Magistrate Judge Paul D Stickney. (Signed by Judge Paul D Stickney on 5/11/05) (ttm, ) (Entered: 05/12/2005)
169 RESPONSE to Motion re 165 MOTION to Compel filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) (Entered: 05/19/2005)
170 Minute Entry for proceedings held before Judge Paul D Stickney : Motion Hearing held on 5/23/05 re 165 Motion to Compel filed by Roderick Keith Johnson,. (Court Reporter Electronic.) (ttm, ) (Entered: 05/24/2005)
171 ORDER granting in part and denying in part 165 Motion to Compel. See order for specifics. (Signed by Judge Paul D Stickney on 5/24/05) (ttm, ) (Entered: 05/24/2005)
172 NOTICE OF SEVENTEENTH SUPPLEMENTAL DISCLOSURE by Defendants(ttm, ) (Entered: 06/07/2005)
173 MOTION to Seal Document by Roderick Keith Johnson (ttm, ) (Entered: 06/27/2005)
174 ORDER REFERRING MOTION to Judge Stickney: 173 Motion to Seal Document filed by Roderick Keith Johnson. Under authority of 28 U.S.C. sec 636(b) and Rule 2(c)(3) of Miscellaneous Order No. 6 of this District, it is ORDERED that Plaintiff's Motion to Seal Plaintiff's Motion for Protective Order, filed June 27, 2005, and the attached documents received June 27, 2005, are hereby REFERRED to United States Magistrate Judge Paul D. Stickney for hearing, if necessary, and determination. (Signed by Judge Barbara M. G. Lynn on 6/29/05) (ttm, ) Modified on 7/14/2005 (nap, ). (Entered: 06/29/2005)
175 ORDER granting 173 Motion to Seal Document (Signed by Judge Paul D Stickney on 6/29/05) (ttm, ) (Entered: 06/30/2005)
176 ORDER: Motion Hearing set for 7/15/2005 09:30 AM before Magistrate Judge Paul D Stickney on Motion for Protective Order. Defendants shall file a response to the motion no later than 7/14/05 at 12:00 noon and hand deliver a copy to chambers, Room 1549. See order for further specifics. (Signed by Judge Paul D Stickney on 7/1/05) (ttm, ) (Entered: 07/05/2005)
Set Deadlines as to Motion for Protective Order: Defendants' Response due by 7/14/2005 (ttm, ) (Entered: 07/05/2005)
180 DEFENDANTS' ADVISORY REGARDING MAY 24, 2005 DISCOVERY ORDER by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 07/12/2005)
181 MOTION to Compel Compliance with May 24, 2005 Discovery Order by Roderick Keith Johnson (ttm, ) (Entered: 07/13/2005)
182 ORDER REFERRING MOTION to Judge Stickney: 181 Motion to Compel filed by Roderick Keith Johnson, (Signed by Judge Barbara M. G. Lynn on 7/13/05) (ttm, ) (Entered: 07/13/2005)
186 RESPONSE TO PLAINTIFF'S EMERGENCY MOTION FOR PROTECTIVE ORDER AND REQUEST FOR COSTS by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) Modified on 7/29/2005 (eat, ). (Entered: 07/15/2005)
187 MOTION to Compel by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 07/15/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 20 of 31

07/15/2005 07/15/2005 07/15/2005 07/18/2005
07/21/2005
07/21/2005 07/25/2005 07/25/2005 07/25/2005
07/25/2005 07/25/2005 07/25/2005 07/25/2005 07/27/2005

188 Minute Entry for proceedings held before Judge Paul D Stickney : Motion Hearing on Plaintiff's Emergency Motion for Protective Order held on 7/15/05. (ttm, ) (Entered: 07/15/2005)
189 MOTION FOR ADDITIONAL TIME FOR VOIR DIRE AND FOR LEAVE TO SERVE JURY POOL QUESTIONNAIRE WITH JURY SUMMONS by Roderick Keith Johnson (ttm, ) (Entered: 07/15/2005)
191 ORDER: Motion Hearing set for 7/29/2005 09:00 AM before Magistrate Judge Paul D Stickney. (Signed by Judge Paul D Stickney on 7/15/05) (ttm, ) (Entered: 07/18/2005)
190 DEFENDANTS' SUPPLEMENTAL RESPONSE TO PLAINTIFF'S EMERGENCY MOTION FOR PROTECTIVE ORDER AND REQUEST FOR COSTS by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) Additional attachment(s) added on 7/19/2005 (ttm, ). Modified on 7/29/2005 (eat, ). (Entered: 07/18/2005)
193 ORDER: Before the Court is Plaintiff's Motion for Additional Time for Voir Dire and For Leave to Serve Jury Pool Questionnaire with Jury Summons, filed on July 15, 2005. Defendants shall by July 27, 2005, serve and file a Response containing any proposed questions which the Defendants wish to have submitted at the same time as the jury summons and any comments as to Plaintiff's proposed questions. No Reply will be permitted. (Signed by Judge Barbara M. G. Lynn on 7/21/05) (ttm, ) Modified on 8/5/2005 (nap, ). (Entered: 07/21/2005)
Set/Reset Deadlines as to 189 Motion for Additional Time for Voir Dire and For LEave to Serve Jury Pool Questionnaire with Jury Summons Responses due by 7/27/2005 (ttm, ) (Entered: 07/21/2005)
194 RESPONSE to Motion re 181 MOTION to Compel filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (eat, ) (Entered: 07/26/2005)
195 OPPOSED MOTION to Expedite Ruling on their Motion for Order Requiring Plaintiff to Pay Expert Fees by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 07/26/2005)
196 RESPONSE to Motion re 189 MOTION FOR ADDITIONAL TIME FOR VOIR DIRE AND FOR LEAVE TO SERVE JURY POOL QUESTIONNAIRE WITH JURY SUMMONS filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (eat, ) (Entered: 07/26/2005)
197 UNOPPOSED MOTION for Expedited Ruling on their Motion for Leave to Conduct Updated Mental Examination of Plaintiff by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 07/26/2005)
198 MOTION for Order requiring Plaintiff to Pay Experts' Fees by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 07/26/2005)
199 ***WITHDRAWN PER DOCUMENT #226***OPPOSED MOTION for Leave to Conduct Updated Mental Examination of Plaintiff Pursuant to FRCP 35 by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) Modified on 8/29/2005 (lrl, ). (Entered: 07/26/2005)
200 MOTION to disqualify attorneys Jeffrey Monks and Margaret Winter by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 07/26/2005)
201 ORDER REFERRING MOTION to Judge Magistrate Paul D. Stickney: 198 Motion for Miscellaneous Relief filed by David Taylor, Tommy Norwood, Tracy Kuyava, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, Tina Vitolo, 199 Motion for Leave to File filed by David Taylor, Tommy Norwood, Tracy Kuyava, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, Tina Vitolo, 197 Motion to Expedite filed by David Taylor, Tommy Norwood, Tracy Kuyava, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, Tina Vitolo, 195 Motion to Expedite filed by

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 21 of 31

07/27/2005 07/28/2005 07/28/2005 07/28/2005 07/29/2005 08/01/2005 08/01/2005 08/01/2005 08/02/2005 08/03/2005
08/03/2005 08/03/2005 08/03/2005 08/04/2005 08/05/2005 08/05/2005 08/08/2005 08/08/2005

David Taylor, Tommy Norwood, Tracy Kuyava, Richard E Wathen, Onessimo Ranjel, Jimmy NMI Bowman, Tina Vitolo. (Signed by Judge Barbara M. G. Lynn on 7/27/05) (eat, ) (Entered: 07/27/2005)
202 NOTICE OF EIGHTEENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 07/28/2005)
203 MOTION to exclude portions of the testimony of Defendants' experts Gary W. Deland, J.P. Guyton and Brenda Adams by Roderick Keith Johnson (eat, ) (Entered: 07/28/2005)
204 MOTION for an in camera inspection and to file attached witness statements under seal. by Roderick Keith Johnson (eat, ) (Entered: 07/28/2005)
205 RESPONSE to Motion re 187 MOTION to Compel filed by Roderick Keith Johnson. (eat, ) (Entered: 07/28/2005)
206 ORDER:Telephone conference Motion Hearing set for 8/3/2005 09:00 AM before Judge Barbara M. G. Lynn. (Signed by Judge Barbara M. G. Lynn on 7/29/05) (eat, ) (Entered: 07/29/2005)
207 RESPONSE to Motion re 200 MOTION to disqualify attorneys Jeffrey Monks and Margaret Winter filed by Roderick Keith Johnson. (eat, ) (Entered: 08/01/2005)
208 NOTICE OF NINETEENTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 08/02/2005)
209 MOTION for Extension of Time to File Response/Reply as to 198 MOTION for Order requiring Plaintiff to Pay Experts' Fees by Roderick Keith Johnson (ttm, ) (Entered: 08/02/2005)
210 RESPONSE in Opposition re 199 MOTION for Leave to File Conduct Updated Mental Examination of Plaintiff Pursuant to FRCP 35 filed by Roderick Keith Johnson. (ttm, ) (Entered: 08/02/2005)
211 ORDER REFERRING MOTION to Judge Stickney: 204 Motion for In Camera Inspection and to File Attached Witness Statements Under Seal filed by Roderick Keith Johnson, (Signed by Judge Barbara M. G. Lynn on 8/3/05) (ttm, ) (Entered: 08/03/2005)
212 ORDER denying 198 Motion for Order Requiring Plaintiff to Pay Experts' Fees (Signed by Judge Paul D Stickney on 8/3/05) (ttm, ) (Entered: 08/03/2005)
213 ORDER granting 199 Motion for Leave to Conduct Updated Mental Examination of Plaintiff...see order for specifics. (Signed by Judge Paul D Stickney on 8/3/05) (ttm, ) (Entered: 08/03/2005)
215 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Telephone Conference. (Court Reporter Sue Engledow.) (ttm, ) (Entered: 08/05/2005)
214 ORDER granting 197 Motion to Expedite. (Signed by Judge Paul D Stickney on 8/4/05) (ttm, ) (Entered: 08/04/2005)
216 NOTICE OF AMENDED NINTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 08/05/2005)
217 Plaintiff's Objections to Order re 213 Order on Motion for Leave to File filed by Roderick Keith Johnson. (ttm, ) (Entered: 08/05/2005)
219 NOTICE of Attorney Appearance by Tim Hoffman on behalf of Roderick Keith Johnson (ttm, ) (Entered: 08/08/2005)
220 Objections to Order re 213 Order on Motion for Leave to Conduct Mental Examinations of Plaintiff filed by Roderick Keith Johnson. (ttm, ) (Entered: 08/08/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 22 of 31

08/08/2005 08/10/2005 08/10/2005
08/10/2005 08/10/2005 08/11/2005 08/12/2005 08/15/2005
08/15/2005
08/17/2005
08/17/2005 08/17/2005 08/17/2005 08/18/2005 08/18/2005
08/19/2005
08/19/2005

221 NOTICE of Change of Address by Edward Tuddenham, counsel for Roderick Keith Johnson. New address is: 2770 Broadway #20A, New York, NY 10025 (ttm, ) (Entered: 08/08/2005)
222 ORDER REGARDING INTENTION TO ADMINISTER CASE ELECTRONICALLY...see order for specifics. (Signed by Judge Barbara M. G. Lynn on 8/10/05) (ttm, ) (Entered: 08/10/2005)
223 ORDER granting in part and denying in part 189 Motion for Additional Time for Voir Dire; granting in part and denying in part 200 Motion to Disqualify. Telephone conference SET for 8/11/05 at 10:00.(Central Time)....see order for further specifics. (Signed by Judge Barbara M. G. Lynn on 8/10/05) (ttm, ) . (Entered: 08/10/2005)
Set/Reset Hearings: Telephone Conference set for 8/11/2005 10:00 AM before Judge Barbara M. G. Lynn. (ttm, ) (Entered: 08/10/2005)
225 PARTIAL MOTION for Extension of Time to File Exhibit List by Roderick Keith Johnson (ttm, ) (Entered: 08/11/2005)
233 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Telephone Conference. (Court Reporter Sue Engledow.) (ttm, ) (Entered: 08/17/2005)
226 Advisory to Court by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo: Plaintiffs withdraw 199 MOTION (Cunniff, Celamaine) Modified on 8/29/2005 (lrl, ). (Entered: 08/12/2005)
227 ORDER REFERRING MOTION to Judge Stickney: 187 Motion to Compel filed by David Taylor,, Tommy Norwood,, Tracy Kuyava,, Richard E Wathen,, Onessimo Ranjel,, Jimmy NMI Bowman,, Tina Vitolo, (Signed by Judge Barbara M. G. Lynn on 8/15/05) (ttm, ) (Entered: 08/15/2005)
228 ORDER granting 225 Motion for Extension of Time to File Supplemental Exhibit List. Plaintiff may supplement his exhibit list with gang related documents within five days of the date of Judge Stickney's Order on Plaintiff's Motion to Compel[#181]. (Signed by Judge Barbara M. G. Lynn on 8/15/05) (ttm, ) Modified on 8/29/2005 (lrl, ). (Entered: 08/15/2005)
229 PROPOSED JOINT PRE−TRIAL ORDER by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Roderick Keith Johnson, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) Modified on 8/19/2005 (ttm, ). (Entered: 08/17/2005)
230 NOTICE OF THE PARTIES' STIPULATION REGARDING SUBMISSION OF PRETRIAL MATERIALS(ttm, ) (Entered: 08/17/2005)
231 NOTICE of Change of Address by Edward Tuddenham, counsel for Roderick Keith Johnson. New address is: 272 W 29th St. #20A, New York, NY 10025 (ttm, ) (Entered: 08/17/2005)
232 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Telephone Conference. (Court Reporter Sue Engledow.) (ttm, ) (Entered: 08/17/2005)
234 NOTICE OF AGREEMENT REGARDING PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH MAY 24, 2005 DISCOVERY ORDER by Roderick Keith Johnson re 171 Order on Motion to Compel (ttm, ) (Entered: 08/18/2005)
235 DEFENDANTS' NOTICE OF TWENTIETH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) Modified on 8/29/2005 (lrl, ). (Entered: 08/18/2005)
236 MOTION Motion for Reconsideration of Magistrate Judge's Order of August 9, 2005 (D.E. 224) by Texas Department of Criminal Justice with Brief in Support. (Attachments: # 1 Appendix # 2 Exhibit A# 3 Text of Proposed Order)(Brocato, Anthony) (Entered: 08/19/2005)
237 NOTICE OF TWENTY−FIRST SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 08/22/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 23 of 31

08/22/2005 08/22/2005
08/23/2005 08/23/2005 08/23/2005 08/23/2005 08/24/2005
08/24/2005 08/24/2005
08/24/2005 08/24/2005 08/24/2005 08/24/2005
08/26/2005 08/26/2005 08/29/2005
08/30/2005

238 NOTICE OF TWENTY SECOND SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 08/22/2005)
239 MOTION Emergency Motion for Expedited Ruling re 236 MOTION Motion for Reconsideration of Magistrate Judge's Order of August 9, 2005 (D.E. 224) by Texas Department of Criminal Justice with Brief in Support. (Attachments: # 1)(Brocato, Anthony) (Entered: 08/22/2005)
240 Exhibit List Defendants' Identification of Trial Exhibits by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 08/23/2005)
241 Witness List by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 08/23/2005)
242 Pretrial Disclosures Defendants' Notice of Supplemental Final Pretrial Disclosures by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 08/23/2005)
243 Pretrial Disclosures Defendants' Supplemental and Amended Final Pretrial Disclosure by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 08/23/2005)
244 ORDER: Set Deadlines as to Telephone Conference set for 8/26/2005 10:00 AM before Magistrate Judge Paul D Stickney regarding Plaintiff's Emergency Motion for a protective order, filed 6/27/05 and the Second Supplement to Plaintiff's Motion for a Protective Order, filed 8/8/05. (Signed by Judge Paul D Stickney on 8/24/05) (grj, ) (Entered: 08/24/2005)
245 NOTICE OF TWENTY−THIRD SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 08/24/2005)
246 Designation of Deposition by Roderick Keith Johnson. (Attachments: # 1 Exhibit Bowman Deposition Excerpts# 2 Exhibit Kuyava Deposition Excerpts# 3 Exhibit Norwood Deposition Excerpts# 4 Exhibit Wathen Deposition Excerpts# 5 Exhibit Ranjel Deposition Excerpts# 6 Exhibit Taylor Deposition Excerpts# 7 Exhibit Vitolo Deposition Excerpts)(Monks, Jeffrey) (Entered: 08/24/2005)
247 Exhibit List by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 08/24/2005)
248 Witness List by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 08/24/2005)
249 ORDER denying as moot 181 Motion to Compel (Signed by Judge Paul D Stickney on 8/24/05) (ttm, ) (Entered: 08/24/2005)
250 RESPONSE to Order re 244 Order,, Set Motion and F&R Deadlines, Defendants' Response to Second Supplement to Plaintiff's Motion for Protective Order Regarding Inmate Joseph Fithian filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Appendix # 2 Exhibit A# 3 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 08/24/2005)
251 Exhibit List Plaintiff's Amended Exhibit List by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 08/26/2005)
252 Minute Entry for proceedings held before Judge Paul D Stickney : Telephone Conference on Plaintiff's Emergency Motion for a Protective Order, filed 6/27/05. (Court Reporter electronic.) (eat, ) (Entered: 08/29/2005)
253 ORDER: Set Deadlines as to 236 TDCJ's Motion for Reconsideration of Magistrate Judge's Order of August 9, 2005. Motion Hearing (telephone conference) set for 8/30/2005 10:00 AM before Magistrate Judge Paul D Stickney. (Signed by Judge Paul D Stickney on 8/26/05) (grj, ) (Entered: 08/29/2005)
254 RESPONSE to Motion re 236 MOTION Motion for Reconsideration of Magistrate Judge's Order of August 9, 2005 (D.E. 224) filed by Roderick Keith Johnson.

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 24 of 31

08/30/2005 08/30/2005 08/31/2005 08/31/2005 08/31/2005 08/31/2005 09/06/2005
09/06/2005 09/07/2005 09/07/2005
09/07/2005
09/07/2005 09/07/2005 09/07/2005 09/07/2005 09/07/2005

(Attachments: # 1 Exhibit Exhibit A Board Policy 03.81)(Monks, Jeffrey) (Entered: 08/30/2005)
255 Second MOTION to Compel Compliance with May 24, 2005 Discovery Order by Roderick Keith Johnson with Brief in Support. (Attachments: # 1 Exhibit STG Form# 2 Exhibit Emails from Margaret Winter to Celamaine Cunniff)(Monks, Jeffrey) (Entered: 08/30/2005)
259 Minute Entry for proceedings held before Judge Paul D Stickney : Telephone Conference regarding 236 TDCJ's Motion for Reconsideration of Magistrate Judge's Order of 8/9/05 filed 8/19/05. (Court Reporter Elecronic.) (ttm, ) (Entered: 08/31/2005)
256 Proposed Voir Dire by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 08/31/2005)
257 Proposed Jury Instructions by Roderick Keith Johnson. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Monks, Jeffrey) (Entered: 08/31/2005)
260 APPLICATION for Writ of Habeas Corpus Ad Testificandum by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 08/31/2005)
261 Proposed Voir Dire by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 08/31/2005)
263 OBJECTION re 260 Application for Writ of Habeas Corpus Ad Testificandum filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Errata D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/06/2005)
264 Exhibit List Supplemental Identification of Trial Exhibits by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 09/06/2005)
265 OBJECTION re 246 Designation of Deposition, filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/07/2005)
266 RESPONSE to Motion re 203 MOTION to exclude portions of the testimony of Defendants' experts Gary W. Deland, J.P. Guyton and Brenda Adams filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/07/2005)
267 OBJECTION re 248 Witness List filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F`# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/07/2005)
268 Supplemental Document by Roderick Keith Johnson as to 260 Application for Writ Response to Defendants Objections. (Monks, Jeffrey) (Entered: 09/07/2005)
269 First MOTION in Limine to Exclude Character Evidence by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 09/07/2005)
270 Second MOTION in Limine to Exclude Expert Opinions and Reports by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 09/07/2005)
271 Third MOTION in Limine to Exclude Evidence or Argument Relating to the Investigation of the Office of the Inspector General by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 09/07/2005)
272 Fourth MOTION in Limine to Exclude Evidence under Fed R Civ P 37 and to Prohibit References to Discovery Disputes by Roderick Keith Johnson with Brief in Support.

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 25 of 31

09/07/2005 09/07/2005 09/07/2005 09/07/2005 09/07/2005
09/07/2005 09/08/2005
09/08/2005 09/08/2005
09/08/2005 09/08/2005 09/08/2005 09/08/2005 09/08/2005 09/08/2005 09/08/2005 09/09/2005 09/12/2005 09/12/2005

(Monks, Jeffrey) (Entered: 09/07/2005)
273 Fifth MOTION in Limine to Exclude Evidence Under Fed R Evid 412 by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 09/07/2005)
274 OBJECTION re 241 Witness List, 240 Exhibit List filed by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 09/07/2005)
275 Supplemental Document by Roderick Keith Johnson as to 257 Proposed Jury Instructions Brief in Support of Plaintiff's Jury Instructions and Jury Questions. (Monks, Jeffrey) (Entered: 09/07/2005)
276 MOTION in Limine by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/07/2005)
277 MOTION to Strike Plaintiff's Proposed Expert Testimony under Daubert and Rule of Evidence 702 by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo with Brief in Support. (Attachments: # 1 Appendix # 2 Exhibit A Part 1 of 2# 3 Exhibit A Part 2 of 2# 4 Exhibit B# 5 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/07/2005)
278 Objections to Plaintiffs Exhibit List by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) Modified on 9/16/2005 (nap, ). (Entered: 09/07/2005)
279 MOTION For Jury to Tour Allred Unit by Vikki D Wright, Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/08/2005)
280 OBJECTION re 247 Exhibit List filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/08/2005)
281 ORDER FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: The Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum, filed August 31, 2005, is hereby GRANTED. The Court will issue such writs accordingly. (Signed by Judge Barbara M. G. Lynn on 9/8/05) (eat, ) (Entered: 09/08/2005)
282 Writ of Habeas Corpus ad Testificandum Issued as to Kurt Georgi for September 19, 2005. (eat, ) (Entered: 09/08/2005)
283 Writ of Habeas Corpus ad Testificandum Issued as to John Nowlain for September 19, 2005. (eat, ) (Entered: 09/08/2005)
284 Writ of Habeas Corpus ad Testificandum Issued as to Eric Nails for September 19, 2005. (eat, ) (Entered: 09/08/2005)
285 Writ of Habeas Corpus ad Testificandum Issued as to James McCartney for September 19, 2005. (eat, ) (Entered: 09/08/2005)
286 Writ of Habeas Corpus ad Testificandum Issued as to Michael Matthews for September 19, 2005. (eat, ) (Entered: 09/08/2005)
287 Writ of Habeas Corpus ad Testificandum Issued as to Victor Jackson for September 19, 2005. (eat, ) (Entered: 09/08/2005)
288 Writ of Habeas Corpus ad Testificandum Issued as to Joseph Fithian for September 19, 2005. (eat, ) (Entered: 09/08/2005)
289 NOTICE by Roderick Keith Johnson re 288 Writ of Habeas Corpus ad Testificandum Issued Notice of Change of Address of Inmate Witness Joseph Fithian (Monks, Jeffrey) (Entered: 09/09/2005)
290 Supplemental Document by Roderick Keith Johnson as to 247 Exhibit List Errata to Plaintiff's Exhibit List. (Monks, Jeffrey) (Entered: 09/12/2005)
291 NOTICE OF TWENTY−FOURTH SUPPLEMENTAL DISCLOSURE by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood,

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 26 of 31

09/12/2005 09/12/2005 09/12/2005 09/12/2005
09/12/2005 09/12/2005 09/12/2005
09/12/2005 09/13/2005 09/13/2005 09/13/2005
09/14/2005
09/14/2005
09/14/2005

Tracy Kuyava, Tina Vitolo (eat, ) (Entered: 09/12/2005)
292 RESPONSE to Motion re 277 MOTION to Strike Plaintiff's Proposed Expert Testimony under Daubert and Rule of Evidence 702 filed by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 09/12/2005)
293 RESPONSE to Motion re 276 MOTION in Limine filed by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 09/12/2005)
294 Exhibit List Response to Defendants Objections to Plaintiff's Exhibit List by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 09/12/2005)
295 Memorandum in Support re 257 Proposed Jury Instructions Defendants' Brief in Support of Their Proposed Jury Instructions filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/12/2005)
296 Order Designating Case for ECF − see order for specifics. (Signed by Judge Barbara M. G. Lynn on 9/12/05) (ttm, ) (Entered: 09/13/2005)
306 AMENDED Writ of Habeas Corpus ad Testificandum Issued as to Joseph Fithian for Monday, September 19, 2005 at 9:00 a.m.. (eat, ) (Entered: 09/16/2005)
307 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Telephone Conference. The Court held a telephone conf. with the parties to discuss the jury questionnaires. Plt and Dft agreed on a 12 member jury, on the condition of a 10−2 verdict. The Court will also empanel two alternates, for a total of 14 jurors. Break−parties to call back at 4:00 p.m. Court confers with parties again to discuss agreed challenges for cause based on the questionnaires. (Court Reporter Sue Engledow.) (nap, ) (Entered: 09/16/2005)
312 Amended Writ of Habeas Corpus ad Testificandum Issued as to Joseph Fithian for 9/19/05 at 9:00 a.m. (ttm, ) (Entered: 09/19/2005)
297 RESPONSE to Motion re 270 Second MOTION in Limine to Exclude Expert Opinions and Reports filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Supplement Order)(Cunniff, Celamaine) (Entered: 09/13/2005)
298 RESPONSE to Motion re 269 First MOTION in Limine to Exclude Character Evidence filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/13/2005)
299 RESPONSE in Opposition re 292 Response to Motion Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Strike Plaintiff's Proposed Expert Testimony filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/13/2005)
300 RESPONSE in Opposition re 271 Third MOTION in Limine to Exclude Evidence or Argument Relating to the Investigation of the Office of the Inspector General filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/14/2005)
301 RESPONSE in Opposition re 272 Fourth MOTION in Limine to Exclude Evidence under Fed R Civ P 37 and to Prohibit References to Discovery Disputes filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/14/2005)
302 RESPONSE in Opposition re 273 Fifth MOTION in Limine to Exclude Evidence Under Fed R Evid 412 filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/14/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 27 of 31

09/14/2005 09/14/2005 09/15/2005 09/15/2005 09/16/2005 09/16/2005 09/16/2005
09/16/2005
09/16/2005 09/19/2005 09/19/2005 09/20/2005
09/20/2005
09/21/2005 09/22/2005 09/26/2005 09/26/2005 09/27/2005
09/27/2005

303 ORDER denying 187 Motion to Compel (Signed by Judge Paul D Stickney on 9/13/05) (eat, ) (Entered: 09/15/2005)
304 ORDER granting 204 Motion to File Attached Witness Statements Under Seal (Signed by Judge Paul D Stickney on 9/13/05) (eat, ) (Entered: 09/15/2005)
Document Permanently Sealed: Doc. Nos. 305 Notice (Other) permanently sealed per Order of Court. (eat, ) (Entered: 09/15/2005)
315 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Pretrial Conference held on 9/15/05. See the record for specifics. (Court Reporter S. Engledow.) (ttm, ) (Entered: 09/20/2005)
308 NOTICE of Attorney Appearance by Michael F Linz on behalf of Eric Nails (Linz, Michael) (Entered: 09/16/2005)
309 NOTICE of Attorney Appearance by Michael F Linz on behalf of Victor Johnson (Linz, Michael) (Entered: 09/16/2005)
310 MOTION to Exclude Testimony and/or Evidence pertaining to Ruiz v. Estelle by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 09/16/2005)
313 ORDER denying 255 Motion to Compel. The Defendants' request to produce the documents in redacted form, although untimely made, is GRANTED. Plaintiff's Renewed Motion to Compel Compliance with May 24, 2005 Discovery Order and for Finding of Violation of Discovery Obligations is DENIED. (Signed by Judge Paul D Stickney on 9/16/05) (ttm, ) (Entered: 09/20/2005)
314 CANCEL WRIT OF HABEAS CORPUS AD TESTIFICANDUM AS TO INMATE/WITNESS JAMES MCCARTNEY (Signed by Judge Barbara M. G. Lynn on 9/16/05) (ttm, ) (Entered: 09/20/2005)
311 Joint PRETRIAL ORDER (Signed by Judge Barbara M. G. Lynn on Sept 19, 2005) (jyg, ) (Entered: 09/19/2005)
316 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Selection held on 9/19/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 09/21/2005)
317 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial begun on 9/19/2005. 2nd Day of Trial. Parties make opening statements. Testimony begins. Adjourned until 9:00 am. on Wednesday, September 21, 2005. (Court Reporter S. Engledow.) (ttm, ) . (Entered: 09/21/2005)
321 DEFENDANTS' OBJECTIONS TO PLAINTIFF'S EXHIBIT 248 AND PROPOSED LIMITING INSTRUCTION filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) (Entered: 09/23/2005)
319 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/21/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 09/23/2005)
318 Exhibit List Defendants' Second Supplemental Identification of Trial Exhibits by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tracy Kuyava, Tina Vitolo. (Cunniff, Celamaine) (Entered: 09/22/2005)
323 Supplemental Document by Roderick Keith Johnson as to 290 Supplemental Document Exhibit List. (Monks, Jeffrey) (Entered: 09/26/2005)
327 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/26/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 09/29/2005)
324 Amended MOTION for Protective Order by Roderick Keith Johnson with Memorandum in Support. (Attachments: # 1 Affidavit Exhibit A# 2 Affidavit Exhibit B# 3 Affidavit Exhibit C# 4 Affidavit Exhibit D# 5 Affidavit Exhibit E# 6 Affidavit Exhibit F)(Monks, Jeffrey) (Entered: 09/27/2005)
325 Supplemental Document by Roderick Keith Johnson as to 247 Exhibit List Plaintiff's Second Supplement to Exhibit List. (Monks, Jeffrey) (Entered: 09/27/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 28 of 31

09/27/2005
09/27/2005 09/28/2005
09/28/2005 09/29/2005
09/29/2005 09/30/2005 09/30/2005 10/03/2005 10/04/2005 10/04/2005 10/05/2005 10/06/2005 10/06/2005 10/07/2005
10/07/2005 10/07/2005 10/11/2005

326 ORDER: The Texas Department of Criminal Justice is hereby authorized to return all the inmate witnesses who have testified as of noon on 9/27/05, to Units from which they were transferred for temporary residence at the Allred Unit. (Signed by Judge Barbara M. G. Lynn on 9/27/05) (ttm, ) (Entered: 09/27/2005)
328 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/27/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 09/29/2005)
329 ORDER: The Texas Department of Criminal Justice is hereby authorized to return all the inmate witnesses who have testified as of 11:50 on 9/28/05, or who have been called to testify per writs issued by the Court who have not testified, to Units from which they were transferred for temporary residence at the Allred Unit. (Signed by Judge Barbara M. G. Lynn on 9/28/05) (ttm, ) (Entered: 09/29/2005)
331 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/28/05. (Court Reporter S. Engledow.) (ttm, ). (Entered: 09/30/2005)
330 ORDER: Before the Court is Plaintiff's Motion for Emergency Protective Order Placing Inmate Witnesses in Federal Custody, filed under seal 9/26/05. In light of other actions taken by the Court in closed hearings, the Motion is DENIED. (Signed by Judge Barbara M. G. Lynn on 9/29/05) (ttm, ) (Entered: 09/29/2005)
332 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/29/05. (Court Reporter S. Engledow.) (ttm, ). (Entered: 09/30/2005)
333 NOTICE of Attorney Appearance by Christopher Champion Wike on behalf of Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo (ttm, ) (Entered: 10/03/2005)
337 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 9/30/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/05/2005)
334 NOTICE by Roderick Keith Johnson Notice to Court Regarding Inmate Witnesses (Monks, Jeffrey) (Entered: 10/03/2005)
335 Exhibit List Defendants' Third Supplemental Identification of Trial Exhibits by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava. (Cunniff, Celamaine) (Entered: 10/04/2005)
336 MOTION to Exclude Evidence on the Basis of Equitable Estoppel and Fed. R. Civ. P 37 by Roderick Keith Johnson with Brief in Support. (Attachments: # 1 Exhibit A)(Monks, Jeffrey) (Entered: 10/04/2005)
361 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 10/5/05. (Court Reporter Sue Engledow.) (eat, ) Additional attachment(s) added on 11/2/2005 (eat, ). (Entered: 11/02/2005)
339 MOTION to Exclude Testimony of Brian Van Winkle by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 10/06/2005)
341 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 10/6/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/07/2005)
340 RESPONSE in Opposition re 334 Notice (Other) Texas Department of Criminal Justice's Response to Plaintiff's Notice to Court Regarding Inmate Witnesses filed by Texas Department of Criminal Justice. (Attachments: # 1 Appendix # 2 Exhibit A)(Brocato, Anthony) (Entered: 10/07/2005)
342 ORDER denying 336 Motion to Exclude Evidence on the basis of Equitable Estoppel and Fed.R.Civ.P.37 (Signed by Judge Barbara M. G. Lynn on 10/7/05) (ttm, ) (Entered: 10/11/2005)
344 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 10/7/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/12/2005)
343 Supplemental Document by Roderick Keith Johnson as to 340 Response in Opposition,, 334 Notice (Other) Supplement to Notice Regarding Inmate Witnesses. (Attachments: # 1 Exhibit A)(Monks, Jeffrey) (Entered: 10/11/2005)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 29 of 31

10/12/2005 10/12/2005 10/13/2005 10/13/2005
10/13/2005 10/13/2005 10/16/2005 10/17/2005 10/17/2005 10/17/2005 10/18/2005
10/18/2005 10/24/2005 10/26/2005
11/03/2005
11/07/2005

345 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 10/12/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/12/2005)
346 DEFENDANTS' BRIEF TO THE COURT filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (ttm, ) (Entered: 10/12/2005)
347 Exhibit List Defendants' Fourth Supplemental Exhibit List by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava. (Cunniff, Celamaine) (Entered: 10/13/2005)
348 RESPONSE in Opposition re 343 Supplemental Document Texas Department of Criminal Justice's Response to Plaintiff's Supplement to Notice to Court Regarding Inmate Witnesses filed by Texas Department of Criminal Justice. (Brocato, Anthony) (Entered: 10/13/2005)
349 RESPONSE in Opposition re 346 Remark PLAINTIFF'S OPPOSITION TO DEFENDANTS MOTION FOR JUDGMENT AS A MATTER OF LAW filed by Roderick Keith Johnson. (Monks, Jeffrey) (Entered: 10/13/2005)
350 MOTION to Exclude Evidence by Roderick Keith Johnson with Brief in Support. (Monks, Jeffrey) (Entered: 10/13/2005)
354 Minute Entry for Charge Conference proceedings held before Judge Barbara M. G. Lynn : Hearing held on 10/16/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/20/2005)
352 MOTION for Judgment as a Matter of Law by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo with Brief in Support. (ttm, ) (Entered: 10/17/2005)
353 ORDER denying 352 Motion for Judgment as a Matter of Law (Signed by Judge Barbara M. G. Lynn on 10/17/05) (ttm, ) (Entered: 10/17/2005)
355 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial held on 10/17/05. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/20/2005)
356 Minute Entry for proceedings held before Judge Barbara M. G. Lynn : Jury Trial completed on 10/18/2005. Verdict returned for the Defendants. Judgment to enter. Trial exhibits retained in Wichita Falls. (Court Reporter S. Engledow.) (ttm, ) (Entered: 10/20/2005)
358 JURY VERDICT. (ttm, ) (Entered: 10/21/2005)
360 TRANSCRIPT REQUEST by Defendants for proceedings (closing argument−Defendant) held on 10/17/05 before Judge Lynn. (ttm, ) Modified on 10/27/2005 (ttm, ). (Entered: 10/27/2005)
359 JUDGMENT in favor of Defendants Richard Wathen, Tommy Norwood, Tracy Kuyava, Jimmy Bowman, Onessimo Ranjel and David Taylor: This case was tried to a jury between September 19, 2005, and October 18, 2005. On October 18, 2005, the jury rendered a verdict in favor of Defendants Richard Wathen, Tommy Norwood, Tracy Kuyava, Jimmy Bowman, Onessimo Ranjel, and David Taylor on each of Plaintiff's claims. In light of the jury's verdict, it is ORDERED, ADJUDGED, and DECREED that Plaintiff takes nothing on his claims. All taxable court costs are to be paid by Plaintiff. (Signed by Judge Barbara M. G. Lynn on 10/26/05) (ttm, ) Modified on 11/4/2005 (nap, ). (Entered: 10/27/2005)
363 ORDER: All prior Orders of this Court or of United States Magistrate Judge Paul Stickney, placing any inmate witness in protective custody during the pendency of this case are VACATED and no longer in effect. (Signed by Judge Barbara M. G. Lynn on 11/3/05) (ttm, ) (Entered: 11/04/2005)
364 ORDER: Local Rule 47.1 of this District prohibits a party, attorney, or representative of a party or attorney from contacting jurors after the trial without the Court's permission. The Court has decided to permit attorneys in this case to contact those jurors who have indicated a willingness to be contacted. The Court will separately advise counsel of the names and telephone numbers of those jurors who are willing to be contacted. That communication is to be treated as confidential. The jurors' names

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 30 of 31

11/09/2005 11/10/2005 11/16/2005 11/17/2005 11/17/2005 11/17/2005 11/18/2005 11/29/2005
12/01/2005 12/05/2005 01/12/2006
01/12/2006 02/24/2006 05/23/2012

and telephone numbers will be provided only to the attorneys in this case. Contact will be made by telephone only, and only at the times when each juror has consented to be contacted. Unless a juror agrees otherwise at the beginning of the telephone call, counsel for the Plaintiff and counsel for the collective Defendants will have a maximum of thirty minutes each to speak to each such juror. (Signed by Judge Barbara M. G. Lynn on 11/7/05) (ttm, ) (Entered: 11/07/2005)
365 BILL OF COSTS by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Exhibit Clerk's Fees# 2 Exhibit Printing Fees# 3 Exhibit Court Reporter Fees# 4 Exhibit Exemplification Fees)(Cunniff, Celamaine) (Entered: 11/09/2005)
366 Costs Taxed in amount of $ 30,651.83 against Plaintiff (ttm, ) (Entered: 11/10/2005)
367 Notice to the Court and Emergency Motion for Injunctive Intervention and Request for a Protective Order by Michael NMI Cooper, Freddy NMI Hurley, Eric Nails (eat, ) (Entered: 11/16/2005)
368 ORDER REFERRING MOTION to Judge Stickney: 367 Motion for Protective Order filed by Eric Nails,, Freddy Hurley,, Michael Cooper, (Signed by Judge Barbara M. G. Lynn on 11/17/05) (ttm, ) (Entered: 11/17/2005)
369 OBJECTION re 366 Costs Taxed filed by Roderick Keith Johnson. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C)(Monks, Jeffrey) (Entered: 11/17/2005)
370 STANDING ORDER FOR ELECTRONIC FILINGS RELATED TO MATTERS REFERRED TO THE UNITED STATES MAGISTRATE JUDGE (ttm, ) (Entered: 11/17/2005)
371 ORDER REFERRING OBJECTIONS: It is ORDERED that 369 Plaintiff's Objections to Defendants' Bill of Costs, dated 11/17/05, is hereby REFERRED to United States Magistrate Paul D. Stickney, for hearing, if necessary, and determination. (Signed by Judge Barbara M. G. Lynn on 11/18/05) (ttm, ) (Entered: 11/18/2005)
373 RESPONSE in Opposition re 369 Objection to Defendants' Bill of Costs filed by Jimmy NMI Bowman, Onessimo Ranjel, David Taylor, Richard E Wathen, Tommy Norwood, Tracy Kuyava, Tina Vitolo. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 11/29/2005)
374 Supplemental Document by Roderick Keith Johnson as to 365 Bill of Costs,, 373 Response in Opposition,, 369 Objection Supplemental Objections to Defendants' Bill of Costs. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Monks, Jeffrey) (Entered: 12/01/2005)
375 REPLY to Response to Motion re 367 MOTION for Protective Order filed by Freddy Hurley. (ttm, ) (Entered: 12/05/2005)
376 ORDER: The Court holds that Defendants' Bill of Costs, seeking total costs of $30,267.56, should be reduced in the following amounts: Fees of the court reporter: $735.00, Fees and disbursements for printing: $8,374.59, and Fees for exemplification: $385.00. The Court holds that the Clerk should tax the costs as follows: Fees of the clerk: $315.00, Fees of the court reporter: $8012.35, and Fees and disbursements for printing: 12,445.62. The Court orders that the Clerk deduct $9,494.59 from Defendants' Bill of Costs and award Defendants' costs of $20,772.97. (Signed by Judge Paul D Stickney on 1/12/06) (ttm, ) Modified on 2/6/2006 (nap, ). (Entered: 01/17/2006)
Costs Taxed in amount of $ 20,772.97 pursuant to Order dated 1/12/06 against Plaintiff. (ttm, ) (Entered: 01/17/2006)
378 TRANSCRIPT of Closing Arguments of Mr. Harris held on 10/17/05 before Judge Barbara M.G. Lynn. Court Reporter: Sue Engledow. (ttm, ) Modified on 9/16/2011 (rxh). (rxh). (Entered: 02/28/2006)
380 Brief in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (trt) (Entered: 05/25/2012)

Case: 7:02-cv-87 As of: 05/31/2017 02:14 PM CDT 31 of 31

05/23/2012 05/23/2012 05/25/2012
06/04/2012
06/04/2012 06/04/2012 06/12/2012 07/17/2012 07/18/2012 07/18/2012 07/30/2012 07/30/2012 07/30/2012 08/14/2012

381 Declaration in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction by Roderick Keith Johnson. (trt) (Entered: 05/25/2012)
382 MOTION to Appoint Counsel filed by Roderick Keith Johnson (trt) (Entered: 05/25/2012)
379 Memorandum of Law in Support of Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction filed by Roderick Keith Johnson. (trt) (Entered: 05/25/2012)
383 ORDER REFERRING 382 Motion to Appoint Counsel filed by Roderick Keith Johnson. re: 382 MOTION to Appoint Counsel. Motion(s) referred to Magistrate Judge Paul D Stickney. (Ordered by Judge Barbara M.G. Lynn on 6/4/2012) (trt) (Entered: 06/04/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:383. Mon Jun 4 13:38:47 CDT 2012 (crt) (Entered: 06/04/2012)
Magistrate Judge Paul D Stickney added. Motion(s) referred to Magistrate Judge Paul D Stickney. (trt) (Entered: 07/30/2012)
384 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Attachments: # 1 Deputy Clerk Response) (trt) (Entered: 06/12/2012)
385 Status Request by Roderick Keith Johnson with Deputy Clerk Response (Attachments: # 1 Deputy Clerk Response) (trt) (Entered: 07/18/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:385. with public docket sheet Wed Jul 18 13:33:45 CDT 2012 (crt) (Entered: 07/18/2012)
386 NOTICE to the Court filed by Roderick Keith Johnson (Received in Dallas Division on 7/13/2012.) (trt) (Entered: 07/18/2012)
387 Request for Copies by Roderick Keith Johnson (Attachments: # 1 Deputy Clerk Response) (trt) (Entered: 07/30/2012)
388 MOTION for Leave to Proceed in forma pauperis with certificate of trust account filed by Roderick Keith Johnson (trt) (Entered: 07/30/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:387. Mon Jul 30 15:54:57 CDT 2012 (crt) (Entered: 07/30/2012)
389 ORDER: For the convenience of the Court and the parties and to expedite consideration of Plaintiff's Motion to Proceed IFP, Motion to Appoint Counsel, and Motion for Temporary Retraining Order, the Court hereby severs Plaintiff's pleadings filed in this case under docket numbers 380−388 and directs the Clerk of Court to open a new case under 555 Prison Conditions, with Federal Question jurisdiction. The Clerk of Court shall refile docket numbers 380−388 in the new case. (Ordered by Magistrate Judge Paul D Stickney on 8/14/2012) (trt) Modified on 8/23/2012 (gmg). (Entered: 08/15/2012)

 
 __________________________________ No. 03-10455
Cons. w. 03-10505 _________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RODERICK KEITH JOHNSON, Plaintiff-Appellee, v.
GARY JOHNSON, et al., Defendants

GARY JOHNSON; ROBERT R TREON, Senior Warden Allred Unit; RICHARD WATHEN; JAMES D MOONEYHAM, Assistant Warden Allred Unit; TOMMY NORWOOD; KENNETH BRIGHT, Major; TRACY KUYAVA, Administrative Technician Unit Classification Committee; TINA VITOLO, Administrative Technician Unit Classification Committee; VICKI WRIGHT, Director, Classification; JOSEPH BOYLE, Captain; JIMMY BOWMAN, Major; KENNETH WILLINGHAM, Sergeant; OSCAR PAUL, Lieutenant; ONESSIMO RANJEL, Lieutenant; DAVID TAYLOR, Lieutenant
Defendants-Appellants _________________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION - Civil Action No. 7:02-CV-87-R _________________________________

BRIEF OF PLAINTIFF-APPELLEE _________________________________

Margaret Winter (Attorney in Charge) Craig Cowie Amy Fettig National Prison Project of the American Civil Liberties Union Foundation 733 15th Street, NW, Suite 620 Washington, D.C. 20005 Tel: 202.393.4930 Fax: 202.393.4931

Edward Tuddenham 1203 Newning, Austin, TX 78704 Tel: 512.441.9759; Fax: 512.443.4258

Counsel for Plaintiff-Appellee
________________________________ No. 03-10455
Cons. w/ 03-10505 __________________________________ IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
RODERICK KEITH JOHNSON, Plaintiff-Appellee
v.
GARY JOHNSON, et al., Defendants-Appellants
_________________________________
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.
1. Margaret Winter (counsel for plaintiff-appellee); 2. Craig Cowie (counsel for plaintiff-appellee); 3. Amy Fettig (counsel for plaintiff-appellee); 4. National Prison Project of the American Civil Liberties Union Foundation,
Inc. (counsel for plaintiff-appellee); 5. Edward Tuddenham (counsel for plaintiff-appellee); 6. Roderick Keith Johnson (named plaintiff-appellee); 7. The Honorable Jerry Buchmeyer, United States District Court for the
Northern District of Texas; 8. The Honorable Paul Stickney, United States Magistrate Judge for the
Northern District of Texas; 9. Office of the Attorney General of Texas (counsel for defendants-appellants); 10. Celamaine Cunniff (counsel for defendants-appellants); 11. Deven Desai (counsel for defendants-appellants); 12. Steve Bohl (counsel for defendants-appellants); 13. Phillip Marrus (counsel for defendants-appellants); 14. Matthew Tepper (counsel for defendants-appellants);

15. Gary Johnson, Executive Director, Texas Department of Criminal Justice (“TDCJ”) (named defendant-appellant);
16. Robert R. Treon, Senior Warden, James V. Allred Unit, TDCJ (named defendant-appellant);
17. Richard E. Wathen, Assistant Warden, James V. Allred Unit, TDCJ (named defendant-appellant);
18. James D. Mooneyham, Assistant Warden, James V. Allred Unit, TDCJ (named defendant-appellant);
19. Major Tommy Norwood, James V. Allred Unit, TDCJ (named defendantappellant);
20. Major Kenneth Bright, James V. Allred Unit, TDCJ (named defendantappellant);
21. Tracy Kuyava, Administrative Technician, James V. Allred Unit, TDCJ (named defendant-appellant);
22. Tina Vitolo, Administrative Technician, James V. Allred Unit James V. Allred Unit, TDCJ (named defendant-appellant);
23. Vikki D. Wright, Director, Classification, TDCJ (named defendantappellant);
24. Captain Joseph Boyle, James V. Allred Unit, TDCJ (named defendantappellant)
25. Major James Bowman, James V. Allred Unit, TDCJ (named defendantappellant)
26. Sergeant Kenneth Willingham, James V. Allred Unit, TDCJ (named defendant-appellant)
27. Lieutenant Oscar Paul, James V. Allred Unit, TDCJ (named defendantappellant)
28. Lieutenant Onessimo Rangel, James V. Allred Unit, TDCJ (named defendant-appellant)
29. Lieutenant David Taylor, James V. Allred Unit, TDCJ (named defendantappellant)
Margaret Winter Counsel for Plaintiff-Appellee STATEMENT REGARDING ORAL ARGUMENT
Plaintiff-Appellee respectfully suggests that oral argument would be helpful
iii

to the Court because these consolidated appeals involve de novo review of the district court’s denial of summary judgment in a case with an extensive factual record.
iv

TABLE OF CONTENTS
Certificate of Interested Persons .................................................................................i Statement Regarding Oral Argument ...................................................................... iii
Table of Contents ......................................................................................................iv
Table of Authorities ................................................................................................ vii
Jurisdiction .................................................................................................................1
Statement of the Issues...............................................................................................1
Statement of the Case.................................................................................................2
Course of the Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Summary of the Argument.......................................................................................34
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
I. A TRIER OF FACT COULD FIND THAT DEFENDANTS WERE DELIBERATELY INDIFFERENT TO PLAINTIFF’S RIGHT TO PROTECTION FROM VIOLENT PREDATORS AND DEFENDANTS HAD FAIR WARNING THAT THEIR CONDUCT VIOLATED THE EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
A. There Was Ample Evidence of Deliberate Indifference . . . . . . . . . . 36
v

1. “The UCC Defendants” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
a. UCC Defendants’ Arguments in Common . . . . . . . . . . . 38
b. UCC Defendants’ Hearing-Specific Arguments . . . . . . 38
The September 6, 2000 UCC . . . . . . . . . . . . . . . . . . . . 42 The December 13, 2000 UCC . . . . . . . . . . . . . . . . . . . 43 The February 14, 2001 UCC . . . . . . . . . . . . . . . . . . . . 45 The February 21, 2001 UCC . . . . . . . . . . . . . . . . . . . . 46 The March 16, 2001 UCC . . . . . . . . . . . . . . . . . . . . . . 48 The September 5, 2001 UCC . . . . . . . . . . . . . . . . . . . . 48 The December 13, 2001 UCC . . . . . . . . . . . . . . . . . . . 49 The January 17, 2002 UCC . . . . . . . . . . . . . . . . . . . . . 50
2. “The Non-UCC Defendants” . . . . . . . . . . . . . . . . . . . . . . . . . 52
B. Defendants Had Fair Warning That Their Conduct Violated the Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
II. A TRIER OF FACT COULD FIND THAT BOWMAN, BRIGHT, KUYAVA, NORWOOD, RANJEL, TAYLOR, VITOLO AND WATHEN ARBITRARILY DISCRIMINATED AGAINST PLAINTIFF BASED ON HIS RACE AND HOMOSEXUALITY AND THEY HAD FAIR WARNING THAT THEIR CONDUCT VIOLATED THE EQUAL PROTECTION CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
A. Plaintiff Adequately Alleged Equal Protection Claims and There Was Ample Evidence Supporting Those Allegations . . . . . . . . . . . . . . . . 58
1. Plaintiff’s Allegations Were Sufficiently Specific . . . . . . . . . . . .58
2. Plaintiff Presented Direct Evidence of Illegal Discrimination . . 60 3. Plaintiff Adequately Alleged That Defendants’ Conduct Was Not Rationally Related to Legitimate Correctional Needs . . . . . 66
vi

4. Plaintiff’s “Information and Belief” Allegations Were Proper . . 69 5. Even if Plaintiff Were Required to Meet a Heightened Pleading Standard He Met That Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . 70 B. Defendants Had Fair Warning That Their Conduct Violated the Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Certificate of Service Certificate of Compliance
vii

TABLE OF AUTHORITIES ABC Arbitrage Plaintiffs Group v. Tchuruk, 201 F.3d 336 (5th Cir. 2002) . . . . . .69 Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . 33 Anderson v. Pasedena Indep. Sch. Dist., 184 F.3d 439 (5th Cir.1999) . . . . . . . . 72 Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 71 Beeler v. Rounsavall, 328 F.3d 813 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . 64 Briggs v. Anderson, 796 F.2d 1009 (8th Cir.1986) . . . . . . . . . . . . . . . . . . . . . . . . 61 Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir.1993) . . . . . . . . 62, 63 E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173 (5th Cir. 1996) . . . . . . . . . . 64 Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409 (5th Cir.2003) . . . . . . . . . 63, 64 Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . 36, 38, 39, 57 Fierros v. Texas Dep’t. of Health, 274 F.3d 187(5th Cir.2001) . . . . . . . . . . . 62, 63 Forge v. City of Dallas, 2003 WL 21149437(N.D. Tex. May 19, 2003) . . . . . . . .71 Helling v. McKinney, 509 U.S. 25 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37 Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57 Horton v. Cockrell, 70 F.3d 397 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 58
viii

Hudson v. Palmer, 468 U.S. 517 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..74 Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257 (5th Cir. 1991) . . . . . . . . . 41, 60 Lee v. Washington, 390 U.S. 333 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 73, 74 McClendon v. City of Columbia, 302 F.3d 314 (5th Cir. 2002) . . . . . . . . . . . . . . . 69 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . 61, 62, 65 Moore v. U.S. Dep't of Agric., 55 F.3d 991 (5th Cir.1995) . . . . . . . . . . . . . . . . . . 62 Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Overton v. Bazzetta, 123 S.Ct. 2162 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Portis v. First Nat'l Bank, 34 F.3d 325 (5th Cir.1994) . . . . . . . . . . . . . . . . . . . . . 63 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 5 Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D.Tex. 1999), rev’d and remanded, Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001) . . . . . . . . . . . . . . . . . passim Ruiz v. Johnson, 154 F. Supp. 2d 975 (S.D. Tex. 2001) . . . . . . . . . . Ruiz v. Johnson, Civ. Action No. H-78-987 (S.D.Tex. Oct. 12, 2001) . . . . . . . . . 21 Sandin v. Conner, 515 U.S. 472 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 70, 72 Sockwell v. Phelps, 20 F3d 187 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ix

Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . . . .66 Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir, 2002) . . . . . . . . . . . . . . . .69 Texas Dep’t of Com’ty Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . 61, 62 Thompson v. Patteson, 985 F.2d 202 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . 67 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67, 68, 74 United States v. Valdiosera-Godinez, 932 F.2d 1093 (5th Cir. 1991) . . . . . . . . . 71 Wallace v. Texas Tech University, 80 F.3d 1042 (5th Cir. 1996) . . . . . . . . . . . . . .61 Wheeler v. Miller, 168 F.3d 241 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) . . . . . . . . . . . . . . . . . . . 74
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Federal Rule of Civil Procedure Rule 7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Federal Rule of Civil Procedure 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 71
x

JURISDICTION For the reasons set forth in Plaintiff’s Motion to Dismiss the appeal in No. 03-10455 and Motion to Dismiss the appeal in No. 03-10455, Plaintiff contends that the Court lacks jurisdiction over these consolidated appeals.
STATEMENT OF THE ISSUES1 1. Are Defendants entitled to summary judgment that they did not violate Plaintiff’s Eighth Amendment right to protection from rape, where Plaintiff submitted competent evidence that Defendants knew he was highly vulnerable to being raped by violent predators; that they nevertheless arbitrarily denied protection, telling him that he would have to fight off predators if he was unwilling to submit to rape; and that, as a result of their refusal to provide protection, Plaintiff was repeatedly molested by violent sexual predators? 2. Are Defendants entitled to judgment on the pleadings or summary judgment that they did not violate Plaintiff’s right to equal protection of the laws,
1Defendants’ Eleventh Amendment Immunity arguments, which relate only to Plaintiff’s injunctive claims, are about to become moot since Plaintiff transferred to a halfway house on December 19, 2003 and is soon to be released from TDCJ custody. Were that release not to occur, Plaintiff would be entitled to an order requiring Defendants to maintain him in safekeeping and to offer him medical and psychiatric treatment for the injuries they inflicted, for the reasons shown in the District Court. [R5:1243-1250]
1

where Plaintiff, a Black homosexual, alleged and submitted competent evidence that Defendants, in arbitrarily denying him protection from rape, stated that they do not protect homosexuals, that homosexuals enjoy being raped and that a Black homosexual in particular should be able to fight off predators if he does not want to submit to rape, with the result that Plaintiff was repeatedly molested by violent predators?
STATEMENT OF THE CASE A. Course of the Proceedings in the Court Below On April 18, 2002, Plaintiff Roderick Keith Johnson, a prisoner in the custody of the Texas Department of Criminal Justice (“TDCJ”), filed suit for prospective relief and damages under 42 U.S.C. § 1983. The Complaint alleged that Defendants knew that he was at high risk for being victimized by sexual predators yet consciously disregarded the risk, with the result that for a period of eighteen months he was molested and threatened with death if he resisted; and that certain of the Defendants were motivated not merely by deliberate indifference to the risk, in violation of Plaintiff’s Eighth Amendment rights, but also by intentional discrimination against homosexuals, and in particular Black homosexuals, in violation of Plaintiff’s rights under the Equal Protection Clause. [RE Tab 5]
2

Defendants’ Answer provided no particularized response but only a blanket denial of Plaintiff’s highly detailed factual allegations concerning their conduct. [RE Tab 6, ¶1, 11-16] Defendants did not bring a motion to require a reply and the District Court did not order one.
In July 2002, Defendants filed a Partial Motion to Dismiss For Failure to State a Claim Against Them in Their Official Capacity. [R1:86] The motion raised the defenses of standing, mootness, and sovereign immunity, but not qualified immunity. [R1:122-34] Later in July, Defendants Johnson, Treon and Wright each moved for judgment on the pleadings on Plaintiff’s Equal Protection claim. [R1: 93, 96, 224-36; R2:350-63] Plaintiff did not oppose the motions of Johnson, Treon and Wright for judgment on th Equal Protection claim [R1:238; R2:365], which the District Court granted. [R4:844-45] In November, all of the remaining Defendants moved for judgment on the pleadings on the Equal Protection claims. [R3:588–622]
On January 24, 2003, while the motion of the remaining Defendants for judgment on the pleadings was pending, all Defendants filed a partial motion for summary judgment. [R4:874] Plaintiff opposed summary judgment with competent evidence supporting each allegation of the Complaint [R5:1187R6:1251], and with a Declaration pursuant to Federal Rule of Civil Procedure 56(f)
3

showing that certain relevant information could not be presented in opposition because it was exclusively in Defendants’ control and they had refused to disclose it, and Plaintiff’s motion to compel disclosure of that information was still pending. [R5:1282-1285]
On April 9, 2003, the District Court denied in its entirety Defendants’ motion for summary judgment, holding, “In the instant case, genuine issues of material fact remain with regard to Plaintiff’s allegations and with regard to Defendants’ qualified immunity defense.” [RE Tab 4 at 5] The District Court declined to decide pretrial whether Defendants were entitled to qualified immunity, because “[u]pon review of the current record, the Court has determined that Plaintiff’s pleadings and his summary judgment evidence assert facts which, if true, would overcome the defense of qualified immunity.” [RE Tab 4 at 4] A week later, the District Court entered an order that “Defendants’ motion to dismiss this action on the basis of qualified immunity is DENIED AS MOOT. The Court has already determined that, because of unresolved issues of material fact, Defendants are not entitle[d] to the defense of qualified immunity at this time.” [RE Tab 3 at 4]
On May 7, 2003, Defendants filed a notice of appeal from the order denying summary judgment. [R7:1727] The appeal was docketed as No. 03-10455. On May 19, Defendants filed a notice of appeal from the order denying judgment on
4

the pleadings. [RE Tab 2] That appeal was docketed as No. 03-10505.
Plaintiff filed motions to dismiss both appeals for want of jurisdiction and as
frivolous. The Court ordered that these motions be carried with the appeals. On
September 2, 2002, the Court consolidated the two appeals.2
B. Statement of the Facts
On March 1, 1999, the United States District Court for the Southern District
of Texas, by the Honorable Wayne William Justice, entered a decision in Ruiz v.
Johnson, 37 F. Supp. 2d 855, 939 (S.D.Tex. 1999),3 a class action by prisoners in
TDCJ custody against Gary Johnson, then Director of TDCJ’s Institutional
Division, and currently TDCJ’s Executive Director and a Defendant in Plaintiff
Roderick Johnson’s case. The Ruiz court found that Texas prisoners “live in fear –
a fear that is incomprehensible to most of the state's free world citizens. More
2Citations to Defendants-Appellants’ Brief in No. 03-10455 are to “Def. Br.2:X;” and citations to Defendants-Appellants’ Brief in No. 03-10505 are to “Def. Br.1:X” (X representing the page number). Citations to Defendants Record Excerpts are to “RE.” Citations to the record on appeal are in the form RX:YYY, to designate volume and page number. Some pages of the record contain text on both sides of the page, and the reverse sides are not marked with the sequentially numbering of the record on appeal. To designate an unnumbered reverse side of a page, reference is made to the numbered side followed by a capital letter A (e.g., R6:1339-A).
3This Court reversed and remanded for additional findings in Ruiz v. United States, 243 F.3d 941, 952, 953 (5th Cir. 2001), on the ground that the district court had failed make the provision-by-provision analysis required by the Prison Litigation Reform Act on the continued necessity for each provision of the 1992 judgment in the case. On October 10, 2001, after having made the required findings, the district court entered an Order requiring Director Johnson to enforce TDCJ’s written policies governing the protection of prisoners from predators. See Ruiz
5

vulnerable inmates are raped, beaten, owned, and sold by more powerful ones. Despite their pleas to prison officials, they are often refused protection. Instead, they pay for protection, in money, services, or sex.” Id. at 940. It found that inmate-on-inmate sexual victimization was routine throughout the TDCJ system, and that officers were aware of it because it was obvious but failed to respond. Id. at 929. The evidence at trial:
revealed a prison underworld in which rapes, beatings, and servitude are the currency of power. Inmates who refuse to join race-based gangs may be physically or sexually assaulted. To preserve their physical safety, some vulnerable inmates simply subject to being bought and sold among groups of prison predators, providing their oppressors with commissary goods, domestic services, or sexual favors. The lucky are those who are allowed to pay money for their protection. Other abused inmates find that violating prison rules, so that they may be locked away in single cells in administrative segregation, is a rational means of self-protection, despite the loss of good time that comes with their "punishment.” Id. at 915-916. The court found that an “institutional resistance to resolving
v. Johnson, Civ. Action No. H-78-987 (S.D. Tex. Oct. 12, 2001). [R5:1294-1307]
6

serious safety problems pervades the system,” id. at 915; that there appeared to be “a strong presumption on the part of prison officials that, in the absence of outward physical harm to assaulted inmates, such as cuts, abrasions, and bruises, no sexual assault has occurred,” id. at 918; that high barriers kept prisoners out of safekeeping and protective custody, and that prisoners were forced to subject themselves deliberately to disciplinary sanctions in order to separate themselves from predators, id. at 923; and that TDCJ had an unwritten systemic policy essentially denying protection to prisoners who failed to fight and be injured protecting themselves. Id. The court further found:
Prison officials deliberately resist providing reasonable safety to inmates. The result is that individual prisoners who seek protection from their attackers are either not believed, disregarded, or told that there is a lack of evidence to support action by the prison system. Inmates who find no other way to protect themselves than to rebel against the prison officials themselves find themselves in a free fall of disciplinary measures that strips them of their privileges and rights. Prison officials at all levels play a game of willing disbelief, one that appears adequate on paper and fails dismally in practice. Id. The court specifically found that Director Johnson condoned the attitude of
7

TDCJ prison staff in refusing to acknowledge a threat of harm to prisoners who do not fight back against their attackers. Id. at 926.
Defendants were well aware of the 1999 Ruiz decision by the time Plaintiff Roderick Keith Johnson arrived at the Allred Unit on September 6, 2000.4
At Plaintiff’s initial classification hearing at Allred, the three-person Unit Classification Committee (“UCC”) was chaired by Major Bright and included Case Manager Kuyava. [R4:1068] Bright’s basic duties as a Major of Correctional Officers included responsibility for ensuring prisoners’ safety. [R6:1349-51] Kuyava’s basic duties included helping prisoners get access to services and guidance, ensuring the accuracy and completeness of the classification information supplied to the UCC, and participating in UCC hearings as a voting member. [R6:1353-54]
At UCC hearings, committee members have before them the entire classification history and records of the prisoner under consideration. [R6:1353-54, 1462] Plaintiff’s classification records at this initial hearing contained information
4 See R5:1338 (TDCJ provided State Classification Chief with copy of Ruiz decision since the decision affected classification employees’ responsibilities); R6:1341 (8/8/01 Memo from Classification reminding Defendant Wright that Allred staff must collect data on sexual assault to address the ruling in Ruiz). Invoking qualified immunity, Director Johnson refused to disclose in discovery whether he had disseminated the Ruiz decision to Defendants and this refusal is the subject of a pending motion to compel. [R5:1284-85]
8

showing that he was presumptively eligible for safekeeping under TDCJ policy AD-04.69, Security Requirements for at-Risk or Vulnerable Offenders. [R6:135768] The policy defines safekeeping as “a status that permits the unit/facility to house vulnerable individuals and other potential victims together, separate from more aggressive offenders.” The policy states:
Safekeeping status is reserved for those offenders who require separate housing in the general population because of threats to their safety due to a potential for victimization, enemies in the offender population, a history of homosexual behavior, or other similar reasons. [R6:1359]TDCJ recognizes that additional indicators of “potential for victimization” include effeminacy, vulnerable character, and alleged threats [R6:1361]; lack of criminal sophistication; any previous history of safekeeping; the absence of any history of predation against other prisoners; and an appearance of vulnerability, such as a demeanor that fails to convey to sexual predators that the prisoner cannot be victimized. [R6:1339-39A (Guyten Depo at 30-32); R6:1361] According to TDCJ policy, prisoners are not required to present any objective evidence of victimization, since the goal “is to identify inmates that are prone to vulnerability and predation by the other inmates before it happens. If we reserve safekeeping status for objective evidence only, we would be forced to wait around until they’re actually hurt.” [R5:1338A -R6:1339 (Guyton Depo at 29-30)] Thus,
9

the vast majority of prisoners approved for safekeeping “have no objective evidence whatever that they have been victimized.” [Id.]
Defendants knew at this initial hearing that multiple risk factors made Johnson particularly vulnerable to sexual assault. His classification records showed that he was a homosexual, had been known by the effeminate nickname “Coco,” had very limited prison experience5 and no history of predation against other prisoners, and had been housed in safekeeping just before he was transferred to Allred Unit.6 [R5:1321-22, R6:1345, 1370-75] Indeed, TDCJ’s Executive Director Johnson eventually conceded that Roderick Johnson’s “demeanor and orientation ” were, without more, sufficient reason for granting him safekeeping. [R6:1376]
Nevertheless, when Plaintiff told Major Bright that he had been placed in safekeeping before coming to Allred, Bright replied, “We don’t protect punks on this farm.” [R5:1321-22] “Punks” in prison parlance meant homosexuals. [R6:1385-86] Rather than assigning Plaintiff Johnson to safekeeping, Bright
5Plaintiff had been sentenced to state jail for a cocaine possession charge. A sentence of probation he had received ten years earlier, for the unarmed burglary of an uninhabited residence, was revoked and he was transferred to TDCJ to serve out the sentence in prison. [R6:1342-44]
6See R6:1345, job assignment entry for 8/24/00-9/05/00 (unassigned transient safeke[eping]).
10

assigned him to general population in Building 8, where prison gang members asserted ownership over Johnson and raped him almost immediately. [R5:1321-22] Of all the prisons in Texas, Allred Unit has one of the highest incidents of reported cases of sexual assault. [R6:1491] Defendants concede that gang members live in the general prison population among the other prisoners and that TDCJ has not been able to identify all of the gang members. [R6:1388 (Norwood Depo at 2324); R6:1463 (Wathen Depo. at 52); R6:1491 (Treon Depo. at 55)]
In October 2000, a member of the Gangster Disciple gang, Andrew Hernandez, forced Johnson into his cell and raped him. [R5:1323] Johnson asked Assistant Warden Mooneyham and Sergeant Willingham for assistance and medical attention. [Id.] As Assistant Warden, Mooneyham had administrative responsibility for the control, security, and administration of employees and inmates. [R6:1395-97] Sgt. Willingham’s basic duties included the care and custody of offenders assigned to his work area, reviewing and properly applying information found in offender records relating to offender health and safety, and providing appropriate information to other staff. [R6:1391-91A] Neither Mooneyham nor Willingham offered Johnson help or medical attention. They told him that immediate medical care was available “only in cases of emergency,” and
11

that he would have to file a written I-60 request. [R6:1323]7 Andrew Hernandez continued to rape and abuse Roderick Johnson on a regular basis, and used him as a domestic servant as well, requiring him to clean Hernandez’ cell, make his bed, and prepare his food. [R5:1323] In November, Hernandez began to share Johnson with other prisoners, forcing Johnson to perform sex acts with them as well. Hernandez made it clear to Johnson that he would be severely beaten or killed if he refused. [Id.] On November 30, after Hernandez stole all of Johnson’s possessions, Johnson complained to Sgt. Willingham, who did nothing; when Johnson returned to his housing area, Hernandez assaulted Johnson. [Id.] The medical department documented Johnson’s injuries from the assault. [R6:1403, 1408] Defendants sent Johnson and Hernandez to segregation in Building 11 and housed them in adjacent cells. [R5:1323]
On December 8, 2000, Johnson was released from segregation and returned to Building 8. On December 9, he submitted in writing a “Life Endangerment” claim, explaining that he was being sexually assaulted; he included the names and cell numbers of the attackers he knew. [R5:1324] He requested safekeeping, transfer to another facility, or protective custody. [Id.] Protective custody is an
7Allred’s policy on access to medical care in fact explicitly provided that “[o]ffender oral requests to officials will be treated as a written sick call request,” and “[s]ecurity officers may
12

extremely restrictive status involving the loss of many privileges.8 [R6:1359-59A] When Sgt. Willingham interviewed him, he described the assault that had occurred a few days earlier, and explained that gang members knew he was a homosexual, approached him in chow hall and the day room and told him that he must “ride” with the gang (submit to its control) and perform sex acts or he would get hurt; he positively identified Hernandez and his cell-mate Garcia as two of the inmates involved; he identified by nickname and cell number other prisoners whose full names he did not know. [R6:1409-12]
Sgt. Willingham submitted an investigation report stating that Johnson had not suffered any medically verified injuries and concluding that Johnson’s complaint was “not corroborated.” [R6:1409] Although TDCJ policy mandated investigations into requests for protection, including inmate interviews “if appropriate and necessary, to identify additional factors or validate any information” [R6:1361-61A], Willingham did not interview the alleged perpetrators or any other inmates, “to protect [the] integrity of [the] investigation.” [R6:1411]
call to medical to have an offender seen immediately.” [R6:1400] 8 “In protective custody, inmates are confined alone in cells designated specifically for
them. A security escort accompanies them whenever they leave their respective cells. These inmates do not participate in work or educational programs, and they do not shower, recreate, or
13

Johnson appeared before the UCC on December 13, 2000 requesting safekeeping, protective custody, or a unit transfer. [R4:1014] The Committee included Warden Mooneyham and Case Manager Tina Vitolo. [R4:1069] Vitolo was responsible for helping prisoners get access to services and guidance, ensuring the accuracy and completeness of information supplied to the UCC, and participating in UCC hearings as a voting member. [R6:1353-54]
Mooneyham and Vitolo knew from Johnson’s classification records that he was a homosexual with an effeminate nickname, that he had been assigned to safekeeping before he got to Allred Unit, that there had been previous similar incidents of reported assaults, that he had identified several of his assailants, and that he had medically documented injuries from a recent altercation with one of them. See supra at 9-12. TDCJ policy recognizes each of these factors as indicators of vulnerability to sexual assault; it treats “medically verifiable injuries” as objective evidence of victimization supporting not only placement in safekeeping or protective custody but also transfer to another Unit. [R6:1359, 1361-61A; R5:1338A-R6:1339A]
Mooneyham and Vitolo were well aware that Johnson was at high risk: Vitolo, commenting on the recent attack, pointed out that, given Johnson’s
join other inmates in any other status. “ Ruiz v. Johnson, 37 F. Supp. 2d at 923.
14

characteristics, he should have been placed in safekeeping when he arrived at Allred. [R5:1324] Mooneyham replied that initial classification mistakes were not the concern of the present UCC. [Id.] They voted to deny Johnson safekeeping and to send him back to general population in Building 8. [R5:1324, 1416] Mooneyham handed Johnson a folded document and told him to sign it. [R5:1324, 1416] When Johnson asked what the document was, Mooneyham replied, “It’s a waiver saying that we’re moving you to another pod and this will solve the problem;” Johnson did not understand what he was signing, and not knowing that he could refuse, he did as he was told. [Id.] After Mooneyham and Vitolo returned Johnson to Building 8, Marty Smith, a member of the Bloods gang, raped Johnson. Soon afterwards Smith began pimping Johnson to other prisoners, and members of the Bloods, Crips and Mexican Mafia sexual abused him. [R5:1325]
In January 2001, Johnson began writing letters to Allred Unit’s Classification Chief Vikki Wright, explaining his plight and requesting protection. [R5:1325] As classification chief, Wright was responsible for processing all requests for safekeeping; tracking all investigations, recommendations, and final dispositions of safekeeping requests; reviewing housing assignments and security needs; coordinating all safekeeping requests with Unit administration and the State and Unit classification committees; and supervising and training the case managers
15

on every essential function of their work, including investigations of inmate sexual assault. [R6:1360; R6:1422, 1429-31] Wright did not respond to Johnson’s letters. [R5:1325] Her position was that safekeeping should be restricted to those offenders who are “very old, very feeble, heavily medicated psych patients, handicapped offenders, offenders that are very, very young in appearance,” [R6:1431-A (Wright Depo. at 22-23)]. That view clashed with official TDCJ policy. [R5:1338A--R6:1339A (Guyten Depo. at 23-25, 28-31; R6:1359, 136161A)].
Around mid-January 2001, members of the Crips gang assaulted Johnson in a stairwell in Building 8. Johnson reported the attack to a sergeant, who refused assistance. [R5:1325] Johnson wrote to Classification Chief Wright again on February 4, while the Unit was on lock-down status. [R6:1432] When the area was on lockdown it was easier to communicate with staff unobserved by other prisoners, who would punish him as a snitch if they saw him communicating with staff. [R5:1326] He complained to Wright that he had sent her numerous I60s, had been assaulted many times, was the target of violence because he did not want to “ride” with the gangs, and had been placed in segregation as a result of previous assaults; that the Warden had moved some of those involved but this had done no good, all his belongings had been stolen, and gang members had sent him
16

“stern word that they will try and hurt me when we are no longer lock[ed] down.”

He stated,“I am a homosexual and cannot defend myself against these men so

please help me and let me speak with you.” [R6:1432]

On February 8, 2001, Sgt. Willingham notified Wright that Johnson claimed

he was being threatened for commissary and sexual favors; that Johnson had been

in a fight a few weeks earlier with Hernandez, who was currently housed in

Building 8 L Pod, as was Johnson; and that Johnson had named Thomas Bail, also

housed there, as one of the aggressors. [R6:1436] Willingham justified his decision

not to investigate on the grounds that “there are no witnesses to these allegations”

and “there is no proof of any aggression against Offender Johnson.” [R6:1436,

1438]

This Life Endangerment claim was heard on February 14, 2001 by a

UCC consisting of Major Bowman, Captain Boyle, and Case Manager Tracy

Kuyava. As a Major, Bowman had the responsibility of ensuring that a complete

investigation was made into inmates’ requests for protection. [R6:1360] Bowman

and Boyle both had responsibility for reviewing and properly applying information

in offenders’ records and ensuring offenders’ safety. [R6:1349-50; 1445-47]

Bowman, Boyle and Kuyava knew from Johnson’s file that he was an effeminate

homosexual, that he had been housed in safekeeping just before his transfer to

Allred, that he had identified prisoners who were allegedly threatening and 17

coercing him (Bail, Garcia, and Hernandez) and that he had been injured in a fight with Hernandez. Bowman, Kuyava and Boyle were aware that not one of these prisoners had been interviewed, and that Willingham’s only explanation for this omission was that interviews might “create a hostile environment.”9 [R6:1433A(App.179)]. Nevertheless, they denied Johnson’s request for safekeeping, “due to insufficient evidence to warrant transfer,” [R6:1434] and they returned him to Building 8, merely moving him from L Pod to J Pod [R5:1325] Johnson begged them to reconsider because this would provide no protection at all from the gangs. [Id.] Major Bowman told Johnson that they would tie him up and drag him back to his cell if he refused to return. [Id.] They made it explicit that if he could not fight off sexual predators, his only option was to submit to sexual servitude: Kuyava told Johnson, “You need to get down there and fight or get you a man.” [Id.]
On February 14, 2001, while Building 8 was still on lockdown, Johnson once again wrote to Classification Chief Wright. [R5: 1326] He begged her to “lock [him] up” and told her that it did no good to keep moving him all around Building 8. [R4:996-97] He stated:
You do not seem to understand how severe things have become for me on
9Sergeant Quintero co-signed the Offender Protection Investigation Form on the incident, evidently because Willingham’s shift ended before he could do so. [R6:1440, 1443A-44]
18

this Building. I am [unable] to survive over here. I am a homosexual and I am constantly forced to perform various sex acts and I do not choose to live in the constant turmoil these men put me through. . . . . I cannot afford to pay anymore or to have sex with just anyone. Please help me, I am so scared. I have been warned when we do come up [....] I have been moved all around this building and they continue to harass me no matter where I seem to go. Please lock me up. Please remove me from this madness.... You insist changing pods will make it all right. But things have not changed at all! Do I have to end up dead or hurt to get you to see that I am in danger and constant fear. They will hurt me if I’m not going to have sex. Sgt. Willingham was once again assigned to “investigate.” [R6:1448-49] Johnson turned over to Willingham a number of the stalker-style letters he was receiving from prisoners who were sexually harassing and threatening him while he was still in lockdown. [R6:1450-57] One of these, signed “Freddy,” stated: Say look out Coco what are you doing up there talking to the rank, my homeboy told me he saw you so you cannot lie your way out of this one b---. Don’t go trying some slick s--- because we have people on 7 and 3 building when we come you have better have your mind made up who you want to be with or we are going to smash you for real. [R6:1450(App. 197)]. Another letter, a sexually explicit proposition signed George Hall, stated “I will do a lot for you if you just act right but you don’t want
19

to act right, .... you turn me on like a m-----f----- and if I ever get a chance I am going to show you how much I cut [sic] for you.” [R6:1454]
Willingham concluded that Johnson’s complaint was “not corroborated,” because there was “no evidence” that the letters were “legitimate.” [R4:995, R6:1441, 1448-49] Of course, there was no evidence that the letters were “illegitimate,” and Willingham deliberately refrained from conducting any interviews to determine their authenticity, in order to “preserve the integrity of the investigation.” [R6:1448-A (App. 193)]
On February 21, 2001, another UCC was convened to hear Johnson’s fourth Life Endangerment claim. It was chaired by Assistant Warden Wathen and included Case Manager Vitolo. [R4:1072] Wathen’s basic duties included directing operations regarding the security of offenders, monitoring staff to ensure compliance with policies, procedures and regulation, and directing procedures and policies relating to offender security. [R6:1395, R6:1459-1460] Wathen told Johnson, “You need to start fighting.” Johnson asked if he was required to fight to save himself. Wathen replied, “There’s no reason why Black punks can’t fight and survive in general population if they don’t want to f---.” [R5:1326-27] Wathen and Vitolo tabled the matter, referring it to Security Threat Group Office (“STG”).
20

[R4:948] 10 On February 25, 2001, Johnson filed a Step 1 grievance requesting
protection. [R6:1464-65] He stated that he had tried to resolve his problem with the UCC and Warden Wathen, that he had received threats to his life and had been made “to perform certain sex acts just to stay safe,” and concluded, “I cannot face these men another day. ... Please move me to safekeeping status or have me moved away from this farm.” [Id.]
On March 16, 2001, the UCC was reconvened. [R5:1327] Warden Wathen, the chairperson, told Johnson that he needed to fight his attackers; Kuyava told Johnson, “Bring bruises or stay out of my face.” [Id.] Although they knew that he had been injured and was receiving highly threatening, sexually-charged letters, and that not one of the alleged perpetrators had ever been interviewed, they voted to deny Johnson transfer, safekeeping or protective custody on the ground that there was “no evidence to substantiate claims.” [R6:1449, 1381]
Later in March, Johnson had a classification review hearing. The UCC gave him minimum custody status and moved him to general population in Building 7,
10The STG “investigation” appears to have consisted only in STG opining that a letter to TDCJ ostensibly from Johnson’s grandmother appeared to be in Johnson’s handwriting. [R6:1381] Johnson had in fact written this letter, hoping that TDCJ would not ignore a letter from his family even though it ignored his own pleas for help. [R5:1326]
21

where gang activity was rampant. [R5:1327] Shortly after his arrival, Marty Smith reasserted “ownership” over Johnson and forcibly prostituted Johnson to other gang members. [Id.]
On March 18, 2001, Johnson filed another Step 1 grievance. [R5:1327, 1103-04] He explained that he was a homosexual who was being sexually assaulted, that he had raised this issue with unit administration but was told to fight by the warden, that he would be hurt if he used any kind of violence and would incur a major disciplinary charge and lose his parole date. [R5:1103] On April 9 he received a reply, stating that the UCC had reviewed his case on March 16 and denied his request for a transfer, safekeeping, or protective custody due to insufficient evidence. [R4:1004] On April 17, Johnson filed a Step 2 grievance detailing the efforts he had made to seek protection from sexual assault, including four I-60's to Wright. [R5:1101] On May 4, Johnson received a reply, stating in the same stock language that his case had been investigated, there was no evidence to support his claim, and if he felt his life was in danger he should “immediately notify security staff and provide the substantiating evidence.” [R5:1102]
On June 18, 2001, the district court issued another decision in the Ruiz class action, finding that TDCJ’s failure to provide Texas prisoners with reasonable
22

safety from sexual abuse remained an ongoing systemic problem requiring additional class-wide relief. Ruiz v. Johnson, 154 F. Supp. 2d 975, 986, 1001 (S.D. Tex. 2001).
During this period, Johnson was routinely forced to endure sexual assault and rape by many gang members. [R5:1328] Marty Smith, taking advantage of lax security, came to Building 7 to harass, threaten, and sexually assault Johnson. [Id.] On August 24, 2001, Johnson wrote a letter to Case Manager Vitolo, stating:
I am having a lot of problems with these guys in population not only on 7 Building but in the chow hall also. This guy in the kitchen is trying to force me to be with him and these guys in 7 Building are trying to make me pay with money and sex. [R6:1469] He identified “the guy in the kitchen” as Marty Smith, Building 3 and stated that he needed to “get away from population or off this Unit.” [Id.] On August 27, Johnson reported Marty Smith’s threats and assaults to an officer who filed a Life Endangerment claim on his behalf. [R5:1328, R6:1466-69] Johnson told the investigator that he was being constantly harassed by members of the Crips and Bloods gangs, that Marty Smith “owned” him and was extorting money from him and “lining up tricks” for him, and threatened that if Johnson did not cooperate Smith would “kick his ass before staff could intervene.” [R6:1468-68A]
23

The investigator declined to interview Smith, purportedly for “fear of retaliation against Offender Johnson.” [R6:1467]
On September 5, 2001, Johnson appeared before a UCC chaired by Warden Wathen. [R6:1467] Wathen was aware from previous hearings and the classification records that Johnson was a homosexual who had identified several of his alleged assailants, suffered injuries in a fight with one of them, had received and turned over threatening letters, and that TDCJ had never interviewed any of the assailants Johnson identified. See supra at 9-18. Wathen nevertheless denied safekeeping. [R6:1328] Wathen again obtained a waiver of investigation from Johnson. [R6:1467]
Johnson was transferred to Building 18, where the Tangos gang targeted him. [R5:1328] A gang member named Eric Charboneau began threatening him with violence unless he submitted to sex. [R5:1328-29] The Crips and the Mandingo Warriors also began demanding sex from him; members of the Tangos raped and prostituted him. [R5:1329]
On October 12, 2001, the district court in Ruiz v. Johnson issued an order based upon the court’s earlier findings and further submissions by the parties. [R5:1294-1307] The court reiterated that prisoners in the TDCJ system “are routinely subjected to violence, extortion and rape, that officers are aware of the
24

victimization and fail to respond, and that an institutional resistance to resolving
serious safety problems pervades the system, which involves a deliberate lack of
control by prison officials.” [R5:1300 (internal quotation marks omitted)] The
court reiterated that TDCJ had an “unwritten systemic policy essentially denying
protection to prisoners who failed to fight and be injured protecting themselves,”
reflecting “an acceptance of routine violence and victimization.” [Id.] The court
ordered the defendants to “effectively inform unit wardens that they are
responsible for maintaining control of their units so that violence and paying
protection are not commonplace in any area,” and of their “role in preventing,
detecting and reporting violence and victimization.” The court also ordered them
to “monitor data concerning violence, extortion and requests for protection” at the
Unit level, and to enforce written policies to protect vulnerable prisoners by
housing them in transient housing, safekeeping, protective custody, single cell
status, or safer prison units. [R5:1300-02] The court further ordered defendants to:
take reasonable steps to ensure that the characteristics and factors that they know to be associated with vulnerability or susceptibility [...], when observed or verified, are credited as “objective evidence” substantiating prisoners’ subjective feelings of danger, and that vulnerable and targeted prisoners are not required to fight or suffer injuries before they are transferred or housed in safekeeping or protective custody. Prisoners with characteristics and factors associated with vulnerability or susceptibility . . . . shall not be transferred from one unit where the risk of harm is similar even if not
25

yet proven by threats or attacks at the second unit. Again, this order does no more than require Defendants to act in accord with their own written policies and procedures. [R5:1302]
On December 1, 2001, Tangos gang members ordered Plaintiff to perform
oral sex on an inmate in Dormitory 18R. [R5:1329] Obeying orders, Johnson was
discovered “out of place” by a correctional officer who issued him a disciplinary
charge. [R6:1470-1471] Johnson wrote a letter to Warden Treon for protection.
Treon did not respond. [R5:1329]
On December 5, 2001, Johnson filed another Step 1 grievance requesting
protection from sexual abuse. [R4:987-88] He explained that he had tried
unsuccessfully to resolve the problem with the UCC and stated:
At first I had no problems [in Dormitory 18] but then some inmates started masturbating on me while I was in the shower and before long they started having me do sexual favors. I’ve been afraid to say anything about it because every time I am talking to an officer I am accused on being a snitch. They also know that I have filed Life In Dangers and Grievances and if I’m caught doing it again I’ll be in real trouble.
[Id.] Johnson explained that he had experienced similar problems in various
general population housing areas and that he had incurred the disciplinary charge
as a result. He requested, “To be able to do my time without being sexually
molested any longer.” [R4:988] At his disciplinary hearing on December 12,
Johnson was convicted and punished with loss of recreation and commissary for
26

45 days. [R6:1470] Despite Warden Wathen’s actual knowledge of the particular risks to Johnson, and the Ruiz court’s trenchant findings and order only two months earlier, Wathen signed off on the conviction and punishment. [R6:1470]
On December 13, Plaintiff went before the UCC on his sixth life endangerment claim, requesting safekeeping or a unit transfer. [R6:1473-74A]. Major Bowman chaired the UCC; the other members were Kuyava and Lieutenant Ranjel. Lt. Ranjel’s basic duties included ensuring prisoners’ safety. [R6:1475-76]
Major Bowman told Johnson, “Get a man”(that is, submit to sex with a prisoner powerful enough to fight off other sexual predators). [R5:1329-30] Lt. Ranjel remarked, “Preferably a Black one, since it’s the Bloods you’re having problems with.” [Id.] Kuyava told him, “You ain’t nothing but a dirty tramp,” and “Learn to fight or accept the f---ing.” [R5:1330] The UCC denied the request for safekeeping “due to lack of credible evidence.” [R6:1379] Kuyava stated, “Ms. Pretty is going to a good place now.” [R5:1330] She was referring to Building 7, which was notorious as the most heavily gang-infested building at Allred. [Id.]
During his first week in Building 7, a member of the Crips forced Plaintiff to perform oral sex on him. Members of the Mexican Mafia told him that he must “ride or die,” that is, submit to complete domination by the gang or be killed. [R5:1330]
27

On December 30, 2001, Johnson filed another grievance requesting safekeeping. [R5:1107-08] He stated that he had been “numerous times to UCC and told them that I am a homosexual and that my life is constantly threatened.” [R5:1107] He explained that he was being bought and sold by gang members, masturbated on in the showers, and made to perform sex acts, and that he was being called a snitch for complaining to the administration. He stated that he would deliberately incur a disciplinary in order to get into Building 11 (a segregation unit) because “I cannot take this anymore ... I don’t care about anything but my life and safety.” [Id.]
On December 31, 2001, Johnson deliberately incurred a major disciplinary charge. [R5:1331, R6:1486] On January 1, 2002, Johnson wrote again to Warden Treon as follows:
Please note sir that I am a homosexual. The inmates living on this unit have repeatedly violated me by masturbating on me in the shower and have been forcing me to ride and perform sex acts .... am constantly forced to do these sexual things. These inmates see me as feminine .... Here and on my old section on 7 Bldg and other sections threatened to do me bodily harm. I have told numerous staff officials and been before UCC .... I have had to cause a disruption 12-30-01 to get myself locked up .... .
28

[R6:1487] Despite the Ruiz court’s order two months earlier that wardens must credit “characteristics and factors that they know to be associated with vulnerability as objective evidence substantiating prisoners’ subjective feelings of danger,” Treon did not respond to this letter. [R51329] Treon took the position that an effeminate prisoner who claimed he was being sexually victimized was not entitled to safekeeping unless he could provide positive proof. [R6:1490]
On or about January 9, Johnson had a hearing on his disciplinary report. Johnson stated at the hearing that he was being sexually enslaved and that he had committed the rule violation in order to get into segregation. [R6:1486-87] He was punished with 45 days loss of recreation, commissary, and property and with 45 days special cell restraint. [R6:1486] He was also demoted to medium custody, a classification change that placed him among much more dangerous prisoners. [R5:1331] Warden Wathen once again signed off on the disciplinary report and punishment. [R6:1486]
On January 17, 2002, Johnson appeared before the UCC on his seventh life endangerment claim. The Committee was chaired by Captain Norwood and included Case Manager Vitolo and Officer Taylor. After listing the names of two of the alleged assailants, the report stated that Plaintiff’s claim could not be corroborated because he did not supply the names of the “other offenders.”
29

[R6:1492] It further stated that neither staff nor any prisoner had been interviewed, in order “to protect the integrity of the investigation.” [Id.] And despite Defendants’ admission that they do not know the identities of all the gang members in general population, the report concluded that Plaintiff could not corroborate his claim because the alleged assailant was not listed on Defendants’ “gang intelligence list” as a member of the Mexican Mafia. [Id.] The report specifically noted that Johnson previously had been assigned to Safekeeping. [R6:1493-A] It stated:
Offender states that he is a homosexual and that because he is viewed as being weak other offenders harass him. He states that while he’s in the shower that offenders masturbate on him, that they push him around, that they take his commissary and they force him to participate in homosexual activity. . . . He claims that most of the harassment that he is currently receiving is from offender Reyes, Santos #1065738, out of 7G-23T. He states that Offender Reyes told him that he bought him from his ex-lover Charboneau, Eric, #82692 out of 18R-34. .... Offender Johnson states that he was told by Offender Reyes that he will do as he is told or that he needs to catch out [i.e., “catch” a disciplinary charge by being found out of place by
30

prison officials]. He states that he caught out in order to protect himself, and if placed back in general population that his condition will only get worse. He is requesting to be transferred to another unit or be placed in safekeeping for the remainder of his 8 month sentence. [R6:1492] After Johnson pleaded his case to the UCC, Captain Norwood told him, “I personally believe you like dick,” and that he had probably consented to the sex acts. Vitolo and Taylor laughed at this comment. [R5:1331] Norwood said that Johnson should be placed on high security where he would “get f---ed all the time.” [R5:1331-32] Taylor said that Johnson should just “learn to f--- or fight.” [Id.] Johnson began sobbing, screaming, and pleading with Norwood, Vitolo and Taylor; they laughed, and had Johnson dragged out of the room screaming for help. [R5:1332] They filed a report stating that they had denied safekeeping and transfer due to “insufficient evidence” and “speculation of manipulation.” [R6:1494] When cross-examined, however, not one of them could explain the basis for this “speculation,” and they were utterly at a loss to explain what motive Johnson could possibly have had – other than genuine, desperate fear for his safety – for repeatedly seeking not only safekeeping but also protective custody, an extremely restrictive status involving significant loss of freedom and privileges.
31

[R6:1389 (Norwood Depo., 34:6-39:4); R6:1461-1462 (Wathen Depo. at 29:230:1); R6: 1421 (Taylor Depo. at 55:5-56:16); R6:1355-1356 (Vitolo Depo. at 3234 )]
On January 18, 2002, prison officials issued a written denial of Johnson’s December 30, 2001 Step 1 grievance. The response was, “You need to provide evidence (names, letters, kites, etc.) to unit classification or the shift captain when life endangerments are being investigated.” [R5:1108] Johnson had already repeatedly taken these steps, to no avail. On January 23, he submitted a Step 2 appeal of this grievance, pleading again for safekeeping or protective custody. [R5:1105-1106] The reply he received denied relief in the same stock language, that he must “provide the substantiating evidence.” [R5:1106]
On January 20, 2002, Defendants returned Johnson to general population in Building 8 – where he had been repeatedly assaulted. See supra at 10-15. On about January 23, Plaintiff Johnson wrote a letter to Director Gary Johnson. Plaintiff explained that he was an effeminate homosexual, that he was constantly being sexually harassed and used as a “sex toy” by other inmates, that he was unable to defend himself, that he was being denied protection by the UCC, and that his life was in danger. [R6:1495-96] Director Johnson did nothing – even though the Ruiz court had ordered him four months earlier to monitor claims of sexual
32

victimization and to ensure that prison staff were crediting characteristics associated with vulnerability as objective evidence substantiating prisoners’ subjective feelings of danger. [R5:1302] The only response Plaintiff received was a form letter stating, “[w]e rely on the unit administration’s professional assessment of your situation and trust they will take appropriate action to ensure your safety,” and advising him to “contact the Warden, the Major, the Chief of Classification, or any security staff member on your unit regarding your life endangerment claims.” [R6:1497] Of course, as Plaintiff’s letter had just explained, he had already taken these steps, to no avail. Although the TDCJ Ombudsman’s office faxed a copy of Plaintiff’s letter to Warden Treon and inquired whether the correspondence was related to the UCC’s January 17, 2002 “life in danger” review [R6:1498], nothing in the record suggests that Warden Treon did anything in response.
Once Defendants released Johnson from solitary confinement and placed him on special cell restraint in Building 8, Black and Hispanic gangs on the unit fought over him, each claiming him as their property. [R5:1332] Gang members sent him letters threatening him with violence. [R6:1500-06] One letter warned him that a certain gang that claimed to own him was planning to sell him for a big price, and “they are going to hurt you unless you do something fast,” because they
33

“ know you’re going to the people [classification] on them.” [R6:1504] The letter’s author offered to “buy” Johnson to assure his safety. [Id.] Desperate to get help before he was returned from segregation to general population, Johnson began writing to the ACLU and other organizations for assistance. His family also attempted to advocate on his behalf. [R5:1332-33]
On February 11, 2002, Johnson’s grandmother wrote to TDCJ’s Ombudsman, explaining that Johnson was a homosexual who was being pressured to provide sex and threatened with harm. [R6:1507] The Ombudsman faxed the letter to Warden Treon requesting an investigation. [R6:1509] Copies were also sent to Wright, Kuyava and Vitolo. [R6:1510; 1356] There is no evidence that Treon, Wright, Kuyava, or Vitolo did anything to investigate; instead, Kuyava told the Ombudsman that the UCC had already reviewed these allegations and had “denied Johnson safekeeping, protective custody or transfer due to insufficient evidence.” [R6:1510, 1356]. On February 20, the Ombudsman’s office notified Johnson’s grandmother that the claim had been investigated and no evidence found to support it. [R6:1511] On or about February 22, 2002, Johnson was returned to general population in Building 8. That night, gang members assaulted him and forced him to perform sex. The attacks continued the next day. [R5:1333] Thereafter, the sexual assaults and exploitation escalated dramatically; the gang
34

sold him to scores of other inmates. [Id.]

On or about March 17, Mexican Mafia members forced Johnson into the

showers with a mentally ill inmate known as Alazar and demanded that they engage

in sex together; when the assault was interrupted by a summons to chow, Alazar ran

to Lieutenant Paul, hysterically begging for help. [R5:1333-34] Although Lt. Paul’s

basic duties includes ensuring the safety of assigned offenders, [R6:1475-83], Paul

refused to help Alazar and ordered him to go away. [R5:1334] Johnson then

approached Lt. Paul to tell him what had happened, but rather than offer assistance

Paul told Johnson that he had better not act like Alazar or he would be “carried off

the unit in a body bag.” [Id.]

On March 27, 2002, Major Bowman

interrupted an attorney-client telephone call between Plaintiff Johnson and the

ACLU and took him to Captain Boyle’s office. [R5:1334] Boyle told Johnson that

since he had not been stabbed or “gutted,” prison officials would not place him in

safekeeping. Boyle ordered Johnson to sign a waiver of his life endangerment

claims, threatening that unless he did so, “we are really going to f--- you over.” [Id.]

On March 28, the ACLU sent a fax to Director Johnson describing Roderick

Johnson’s situation and requesting that he be placed immediately in safekeeping.

[R6:1563-64; R5:1309] The next day, Major Bowman summoned Johnson and

told him that “the ACLU don’t run s---” and that Johnson should “have his a-35

kicked.” [R5:1334] Warden Treon told Johnson, “the ACLU don’t run my damn classification unit,” and Johnson had “better not say [he] was coerced into s—,” because “with your classification, I can send you to a terrible place.” [Id.]
On April 1, 2002, Johnson again went before the UCC, chaired by Warden Wathen, who told Johnson, “ we’re recommending to transfer you, and you’re going to see a ‘good friend’ of ours on another unit.” [R5:1335] Warden Treon later testified that he wanted Johnson out of Allred because he feared that Johnson was talking to other prisoners about getting assistance from the ACLU. [R6:148989A]
On April 5, 2002, Director Johnson decided to approve Roderick Johnson’s placement in safekeeping. [R5:1309-09A]. He notified the ACLU that “in view of offender Johnson’s demeanor and orientation,” Roderick Johnson would be transferred from Allred and placed in safekeeping at another Unit. [R6:1376] Shortly thereafter, Roderick Johnson was transferred to the Michael Unit, where he was placed in safekeeping. [R5:1335]
THE STANDARD OF REVIEW This Court reviews de novo a district court’s ruling on summary judgment, applying the same standard as does the district court, viewing the evidence in the light most favorable to the nonmoving party and resolving all permissible
36

inferences in his favor, and granting summary judgment only if the Court finds that the facts material to plaintiff’s claim are undisputed by the parties and no reasonable juror could find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
SUMMARY OF THE ARGUMENT Plaintiff produced ample evidence, both circumstantial and direct, from which a trier of fact could find that Defendants were well aware of the significant risk that Plaintiff would be raped and that they consciously disregarded the risk, arbitrarily denying him protection. The circumstantial evidence includes abundant evidence that the risk was overwhelmingly obvious; the direct evidence includes statements by Defendants announcing that they were denying protection because it was up to Plaintiff to fight off predators if he did not choose to submit to them. See Point I.A. Defendants’ argument that they are entitled to qualified immunity on the Eighth Amendment claim, because “there is no Fifth Circuit or Supreme Court holding on the specific legal question” of a prisoner’s entitlement to be classified to safekeeping status, is without merit. The Supreme Court has rejected the argument that the law is not “clearly established” for purposes of qualified immunity unless there are Circuit or Supreme Court holdings on “the specific legal question” posed. Defendants here had the clearest possible warning that their conduct violated
37

Plaintiff’s Eighth Amendment rights since the Supreme Court announced a decade ago that prison officials violate prisoners’ Eighth Amendment rights when, with conscious disregard of a substantial risk that a prisoner will be raped, they fail to take reasonable measures to abate that risk. See Point I.B.
Plaintiff alleged and submitted direct evidence to prove that, in denying Plaintiff protection, Defendants stated that homosexuals enjoy being raped and that a gay Black man in particular should have to fight off sexual predators if he did not want to be raped. This direct evidence of discriminatory intent shifted the burden of proof to Defendants to prove at trial by a preponderance of the evidence that they would have taken the same action regardless of the impermissible criteria. See Point II.A.1.
Defendants’ argument that § 1983 plaintiffs suing state officials in their individual capacities must meet a heightened pleading requirement and that Plaintiff has not met that requirement is specious. When a public official pleads the affirmative defense of qualified immunity in his answer the district court may require the plaintiff to reply to that defense in detail; but Defendants never moved for a reply and the District Court did not order one. Plaintiff’s Complaint amply satisfied Federal Rule of Civil Procedure 8(a) as a “short and plain statement of the claim showing that [he] is entitled to relief.” Even if Plaintiff were required to meet
38

a heightened pleading standard, he has met it. See Point II.A.2.
Defendants had fair warning that their conduct violated the Equal Protection Clause. The Supreme Court long ago made clear that racial discrimination is as intolerable within a prison as outside, except as may be essential to prison security and discipline. The law was also clearly established that a state actor violates the Equal Protection Clause when he deliberately seeks to disadvantage homosexuals. Defendants have never suggested that they had a legitimate, let alone essential, reason for denying any prisoner protection on the basis of race or homosexuality. Point II.B. I. A TRIER OF FACT COULD FIND THAT DEFENDANTS WERE DELIBERATELY INDIFFERENT TO PLAINTIFF’S RIGHT TO PROTECTION FROM VIOLENT SEXUAL PREDATORS AND DEFENDANTS HAD FAIR WARNING THAT THEIR CONDUCT VIOLATED THE EIGHTH AMENDMENT
A. There Was Ample Evidence of Defendants’ Deliberate Indifference
Prison officials have an indisputable duty to protect prisoners from violence
at the hands of other prisoners. The reasons are plain:
[H]aving stripped them of virtually every means of self-protection and
foreclosed their access to outside aid, the government and its officials
are not free to let the state of nature take its course. . . . [G]ratuitously
allowing the beating or rape of one prisoner by another serves no
legitimate penological objective, any more than it squares with evolving
standards of decency. Being violently assaulted in prison is simply not
part of the penalty that criminal offenders pay for their offenses against
society.
39

Farmer v. Brennan, 511 U.S. 825, 833-835 (1994) (internal citations, quotation and punctuation marks omitted).
To hold a prison official liable under the Eighth Amendment for failing to protect him from sexual assault, the prisoner must show that he was incarcerated under conditions posing a “substantial risk of serious harm.” Id. at 834 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). He must also show that prison officials acted with a “sufficiently culpable state of mind,” that is, one of deliberate indifference to the prisoner’s safety. Id. (citations omitted). A prison official acts or fails to act with deliberate indifference when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serous harm exists, and he must also draw the inference.” Id. at 837. Prison officials consciously disregard a substantial risk when they fail to take reasonable measures to abate it. Id. at 847.
“Whether an official had the requisite knowledge of risk to be liable for failure to prevent it is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may conclude that the official knew of a substantial risk from the very fact that it was obvious.” Id. at 842. “Thus, if a prisoner presents evidence that a substantial risk of inmate attacks
40

was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the officials being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant official had actual knowledge of the risk.” Id. at 842-43.
There was ample evidence in the summary judgment record from which a trier of fact could conclude that each of the Defendants was deliberately indifferent to the significant risk to Plaintiff’s safety when they denied his requests for protection.
1. The “UCC Defendants” The Defendants who voted in the UCC hearings that entertained Plaintiff’s requests for protection – Bowman, Bright, Boyle, Kuyava, Mooneyham, Norwood, Ranjel, Taylor, Vitolo and Wathen – make several arguments relating specifically to their role in these hearings. Plaintiff addresses first the arguments that the UCC Defendants make in common (Point I.A.1.a, infra), and then their remaining arguments relating to particular UCC hearings (Point I.A.1.b, infra)
a. UCC Defendants’ Arguments in Common All of the UCC Defendants argue that to support a claim for deliberate indifference, a prisoner “must provide information [to prison officials] specifying a specific threat,” and that Plaintiff failed to provide them with such information. See
41

Def. Br.2:25. The Supreme Court, however, has firmly rejected this argument: “[It]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843. Thus, for example, “a prisoner can establish exposure to a sufficiently serious risk of harm ‘by showing that he belongs to an identifiable group of prisoners who are frequently singled out for violent attack by other inmates.’” Id. (citation omitted). In such cases “it would obviously be irrelevant to liability that the officials could not guess beforehand precisely who would attack whom. Id. at 844.
Furthermore, on the many occasions when Johnson did positively identify the prisoners who were threatening and molesting him, Defendants always declined to interview them, purportedly in order “to protect the integrity of the investigation”or to protect Plaintiff. See supra at 12, 16, 18, 21, 27. Although a prison official “may show that the obvious escaped him,” he will not escape liability “if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to
42

exist.” Farmer, id. at 843 n.8.11
The UCC Defendants also insist that they were unaware of any threat to
Johnson’s safety because he was 32 years old, 5'11" in height, weighed 170-185
pounds , and had “prior military training.” Def. Br. 2:25; see also Def. Br. 2:27,
2:32. The unspoken inference Defendants apparently want the Court to draw is that
they reasonably assumed Plaintiff was equipped to fight off the organized gangs of
sexual predators who controlled him. Since inferences are to be drawn in Plaintiff’s
favor rather than Defendants,’ the only permissible inference is that Roderick
Johnson obviously was not physically powerful enough to fight off gangs of violent
predators who threatened to kill him if he did not submit to their sexual demands.
Defendants’ claim that they relied on Plaintiff’s “military training” in denying him
protection is patently pretextual: Defendants have never before raised this defense, and there is no evidence in the record that Plaintiff had “military training.”12
11Defendants rely on Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995), for the proposition that officials cannot be deliberately indifferent unless the prisoner provided “information specifying a specific threat.” Def. Br. 2:25. If Neals held what Defendants claim, it would be in direct conflict with Farmer. However, the plaintiff in Neals alleged that he had been negligently left in general population and this Court held only that allegations of negligence do not meet the deliberate indifference standard. Id. at 532.
12As a youth Plaintiff served in the Navy. From this fact, Defendants evidently want the Court to draw an inference that his “military training” consisted in combat techniques and martial arts rather than in clerical duties. Had Defendants raised this issue below, Plaintiff would have rebutted it.
43

In any event, whatever Plaintiff’s height and weight, Defendants’ assumption that he was responsible for fighting off the gangs is most certainly not reasonable: the federal court in the Ruiz class action had repeatedly found unconstitutional TDCJ’s unwritten policy of denying protection from rape to prisoners who fail to fight their predators. See supra at 5-7, 20-21, 22-23. TDCJ’s own policies acknowledged that openly homosexual or effeminate prisoners were especially vulnerable to assault; even Director Johnson eventually conceded that Plaintiff’s “demeanor and orientation” were sufficient reasons, without more, for granting him safekeeping. See supra at 33.
Defendants provide no citation to the record supporting their remarkable claim that “[t]he undisputed summary judgment evidence” proves that none of them “actually drew the inference that Johnson was subject to a serious risk of attack.” Def. Br.2: 25(emphasis added). Defendants’ subjective state of mind is a quintessential fact question, turning on credibility, and only through live crossexamination can the fact-finder observe the demeanor of a witness and assess his credibility; for that reason, summary judgment is seldom appropriate when state of mind is an essential element of the nonmoving party's claim. Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1265 (5th Cir. 1991). The jury will decide whether or not Defendants were actually aware of the risk after weighing the circumstantial
44

evidence (e.g., the extreme obviousness of the risk); the direct evidence (e.g., Defendants’ statements that they “don’t protect punks”); and Defendants’ demeanor and general credibility on the witness stand when they deny that they were aware that Plaintiff was at risk.
Defendants’ contention that their refusal to grant safekeeping was merely an “exercise of their professional judgment, even if was poor judgment,” Def. Br. 2:26. is refuted by their own words. They were not exercising “professional judgment” when they advised Plaintiff to “get a man” (that is, submit to sex) if he did not want to fight, because they did not protect “punks” and so he must “fight or f—.” See supra at 9, 18-19, 25.
Defendants argue further that what “conclusively proves” that they were not deliberately indifferent is “[t]he fact that each Appellant interviewed Johnson, thoroughly reviewed his file, and allowed Johnson to present additional information during the respective hearings.” Def. Br. 2:26. Defendants do not provide record citations for these “facts,” but even if accepted as true the inference to be drawn from them is not that Defendants were reasonable but that they callously disregarded the obvious risks to Plaintiff’s safety, since his classification records revealed that he had multiple characteristics which official TDCJ policy deemed to be high-risk factors. See supra at 8-9, 13.
45

Finally, each of the ten UCC Defendants insists that his or her conduct in voting to deny Plaintiff protection was ipso facto “objectively reasonable” – because at each UCC, the three UCC members “voted unanimously” to deny safekeeping See Def. Br 2:27-28, 29, 30, 31, 32-33, 34, 35, 37, 38, 39, 41, 42, 44, 45, 46, 47. The assertion that their unanimity somehow establishes their reasonableness is patently absurd, and Defendants do not even present an argument in its support.
b. UCC Defendants’ Hearing-Specific Arguments The September 6, 2000 UCC
Major Bright and Case Manager Kuyava, who denied safekeeping at Johnson’s initial classification hearing, argue that they were not deliberately indifferent because Johnson did not have a life endangerment request pending at the time of the hearing, did not have known enemies at the time of his arrival, had not previously been classified to safekeeping, was 32 years old, 5'11", 185 pounds, and “had military training.” Def. Br. 2:27, 2:32. In fact, the records before Bright and Kuyava on September 6, 2000 showed that Johnson was an effeminate homosexual, and thus was deemed by official TDCJ policy to belong to an identifiable group of prisoners frequently singled out for violent attack by other inmates. See supra at 89. Bright and Kuyava also knew that Johnson had been housed in safekeeping just
46

prior to his arrival at Allred Unit, another indicator of vulnerability. Id. Bright, the chairman of the UCC, openly expressed the UCC’s callous indifference to the risk, stating, “we don’t protect punks [homosexuals] on this farm.” Id.
The December 13, 2000 UCC Captain Mooneyham and Case Manager Vitolo, who voted to deny safekeeping at the December 13, 2000 UCC, justify their decision on the ground that Johnson “signed a waiver of his Life Endangerment request.” Def. Br. 2:35-36, 40. This justification is a pretext, since they obtained Johnson’s signature on the waiver after they denied safekeeping; they misled Johnson into believing that the waver was routine paperwork that he was obliged to sign. [R5:1324] Mooneyham and Vitolo also claim that the names Plaintiff provided of the prisoners who were threatening him did not “check out to any known offenders on the unit.” Def. Br. 2:36. The record includes copious evidence to the contrary. Plaintiff first sought Mooneyham’s protection from Andrew Hernandez in October; in November, Hernandez inflicted injuries on Plaintiff, which were documented by the medical department; in December, Plaintiff reported that Hernandez had stolen all his belongings and assaulted him. See supra at 10-12. Plaintiff provided the cell numbers of other assailants whom he knew only by nickname. [R6:1410] Defendants deliberately declined to interview Hernandez or any of the other
47

assailants – purportedly, “to protect the integrity of the investigation.” [R6:1411]

Mooneyham and Vitolo contend that nevertheless the risk was not obvious

because at the time Johnson requested protection he “had been separated from

Garcia and K-Pod for nine days and assigned to 8 Building L Section for twelve

hours.” This is unpersuasive, since the UCC had been told that the threats resumed

after Johnson was returned to Building 8 from segregation. See supra at 11-12.

Mooneyham and Vitolo argue further that they responded “reasonably” to any

risk by noting that Johnson was not to be housed together with Garcia. Def. Br. 2:

36, 40. This response was patently unreasonable, since Johnson reported that he was

being threatened not only by Garcia but also by Hernandez and other gang members

in K, L and J Pods, and that the abuse was occurring not only in the housing area

but in the chow hall where prisoners from various pods mingled at meal times.

[R6:1410; R6:1417-18 ( Johnson Depo. at 185-188); R6:1420 (Taylor Depo. at 27-

29)

The February 14, 2001 UCC

Major Bowman, Case Manager Kuyava and Captain Boyle contend that

they behaved reasonably in voting to deny safekeeping at the February 14 UCC

because Johnson was unable to produce threatening notes or provide the full names

of the prisoners who threatened him. Def. Br. 2:28, 30, 33. This excuse is pretext,

since official TDCJ policy requires no such evidence, and in the vast majority of 48

cases where TDCJ approves safekeeping the prisoners present no “objective” evidence whatever of victimization. See supra at 8-9. Furthermore, Bowman, Boyle and Kuyava not only condoned Sgt. Willingham’s failure to seek corroboration by interviewing the alleged perpetrator, Thomas Bail; they also ratified Willingham’s Catch-22 conclusion that safekeeping should be denied because “there are no witnesses to these allegations” and “no proof of any aggression against Offender Johnson.” [R6:1436]
Defendants’ justification for ignoring the threat posed by Thomas Bail – that he was not “a known gang member” – is particularly specious. Defendants were well aware that they could not identify all gang members at Allred Unit. See supra at 10. The issue was not whether Thomas Bail was truly a gang member, but rather whether he was preying on Johnson.
Bowman, Boyle, and Kuyava also claim that they perceived no risk because Johnson’s housing had been on continuous lockdown since January 20. Def. Br.2:28, 30. This argument is plainly spurious: Johnson had explicitly informed Defendants that “these people have sent me stern word that they will try and hurt me when we are no longer lock down.” [R6:1432]
Finally, Bowman, Kuyava and Boyle argue that it was reasonable of them to return Johnson to Building 8 because they specified that he not be housed in the
49

same pod with Andrew Hernandez. Def. Br. 2:28. This conduct was in fact patently unreasonable, since Johnson had reported that he was being menaced not only by Andrew Hernandez but by Thomas Bail and many others in Building 8. Furthermore, Kuyava’s admissions provide direct evidence that Defendants knew or at least strongly suspected that Johnson would again be victimized by sexual predators when they sent him back to Building 8: She told him, “You need to get down there and fight or get you a man.” [R5:1325]
The February 21, 2001 UCC There was copious evidence before the February 21, 2001 UCC that Plaintiff was at high risk of being sexually assaulted and needed protection, see supra at 1718, including the violently threatening letters Johnson had turned over to Willingham. [R6:1454-57] Warden Wathen and Vitolo argue that they were nevertheless not deliberately indifferent in refusing safekeeping because (1) the alleged perpetrator, George Hall, was housed “in a different section than Johnson;” (2) Building 8 was on lockdown and would remain on lockdown for a period of time; (3) “the investigator could find no offender with the name or nickname ‘Freedy’”; and (4) the UCC did not have enough information to make a decision regarding [Johnson’s] claim.” Def. Br. 2:41, 42. These excuses are plainly pretextual. First, Defendants knew it made no
50

difference that George Hall was housed in 8 Building K Pod while Johnson was housed in 8 Building L Pod, because Johnson had told them that he was being menaced in chow hall by offenders from K Pod and L Pod, who mingled there. See supra at 11-12. Second, Johnson had reported that he gang members were threatening to hurt him “when we are no longer lock[ed] down.” See supra at 15. Third, it was meaningless that Willingham had been unable to locate a “Freedy” since the menacing letter at issue was signed “Freddy,” not “Freedy.” See supra at 17-18 [R6:1450]. Fourth, it clashed with official policy and the 1999 Ruiz decision to deny safekeeping on the ground of “insufficient evidence,” particularly when officials themselves had failed even to conduct interviews of the alleged perpetrators. See supra at 5-9, 13. Finally, there is direct evidence of the real reason for the UCC’s denial of safekeeping: the UCC’s chair, Warden Wathen, told Plaintiff “[t]here’s no reason why Black punks can’t fight and survive in general population if they don’t want to f---.” [R5:1326-27]
Wathen and Vitolo contend that even if they were aware of the risk they behaved reasonably in denying safekeeping because the three members of the UCC “voted unanimously to refer this matter” to the Security Threat Group Office. Def. Br.2:42, 44. Defendants could not discharge their own responsibility as UCC members simply by passing the buck to STG. In any event, arguments based on the
51

“reasonableness” of their reliance on STG investigations should be rejected since Defendants refused to produce information in discovery regarding STG polices, procedures, and investigations. [R5:1283-84]
The March 16, 2001 UCC The risk was overwhelming obvious by the time of the March 16, 2001 UCC, for all the reasons stated above. See supra at 5-19. Warden Wathen and Kuyava contend that even if the risk was obvious, they “responded reasonably” because “the STG Office interviewed Johnson regarding his life endangerment investigation and possible extortion from several offenders” and “found no evidence to support any extortion at that time.” Def. Br.2:31. This claim should be rejected for the reasons already stated. See supra at 47-48.
The September 5, 2001 UCC Warden Wathen claims that his conduct was “objectively reasonable” in denying safekeeping at the September 5, 2001 UCC because the STG Office was unable to confirm that Marty Smith was a gang member and because “Johnson could not identify any of the offenders” to whom Marty Smith was prostituting him. Def. Br. 2:445. It is immaterial that Marty Smith was not a “confirmed” gang member, since Defendants could not identify all the gang members in the prison population. See supra at 10. The issue was not whether Marty Smith was a
52

confirmed gang member but whether Marty Smith and others were menacing Roderick Johnson. The risk was patently obvious to Wathen, for all the reasons stated above, see supra at 45-48. Further, Wathen had already made his explicit his awareness of, and indifference to, the risk to Johnson’s safety when he told Johnson that he must fight. [R5:1326-27]
The December 13, 2001 UCC Bowman, Kuyava and Ranjel contend that they were not deliberately indifferent in denying safekeeping or a Unit transfer at the December 13, 2001 UCC, because Plaintiff “would not or could not” not furnish the names of the sexual predators who were threatening him, and because the investigator could not corroborate his claims. Def. Br. 2:29-30, 35, 38. But Johnson had in fact supplied names, identifying, among others, Andrew Hernandez, S. Garcia, George Hall, Thomas Bail, Marty Smith, and Reyes, and Defendants always declined to interview the alleged assailants – “to protect the integrity of the investigation,” or to protect Plaintiff. See supra at 12, 16, 18, 21, 27. Defendants also now claim – for the first time – that they were concerned at this December 2001 UCC that Plaintiff was “attempting to manipulate the system for secondary gains.” Def. Br. 2:29-30, 35, 38. The record citation they provide lends no support for the claim that this was their motive. Moreover, Bowman, Kyava and Ranjel did not make this argument in
53

the District Court: then, their only argument was that Plaintiff “failed to provide any names” and thus they were not “aware of specific risk of harm” to him. [R4:920] It further undermines their credibility that they raise this new excuse on appeal.
The January 17, 2002 UCC Norwood, Vitolo and Taylor contend that they were not deliberately indifferent in denying Johnson protection at the January 17, 2001 UCC because he could not supply the names of his alleged assailants or provide any specifics. Def. Br.2:37, 39, 42. In fact, Johnson supplied the names, identification numbers and housing areas of Santos Reyes and Eric Charboneau and he had reported that offenders masturbated on him in the showers. Defendants declined to interview anyone, ostensibly “to protect the integrity of the investigation,” just as they had previously declined to interview Andrew Hernandez, S. Garcia, Marty Smith, Thomas Bail and George Hall. Defendants also claim that they were not deliberately indifferent because the investigator “found no evidence that Reyes was associated with the Mexican Mafia,” Def. Br. 2: 37, 39, 42. Defendants themselves concede that they are unable to identify all the gang members at Allred Unit. See supra at 10. Defendants further claim that their conduct was reasonable because Johnson was in solitary confinement at the time he wrote his letter to them. Def. Br. 2: 39. They were,
54

however, perfectly aware from his classification records and the investigator’s report that Johnson was housed in solitary confinement on a temporary basis only and that his request for safekeeping was in contemplation of his return to general population. See supra at 28; R6:1492.
Finally, Defendants contend that their conduct was objectively reasonable because they were concerned that Johnson “was attempting to manipulate the classification system for secondary gain.” Def. Br. 2:39. When cross-examined, however, not one of them could explain the basis for this “speculation;” indeed, they were utterly at a loss to explain what motive Johnson could possibly have had – other than genuine, desperate fear for his safety – for repeatedly seeking not only safekeeping but also protective custody, which is an extremely restrictive status involving significant loss of freedom and privileges. See supra at 29.
Furthermore, there is not only circumstantial but direct evidence that Defendants’ “speculation of manipulation” justification was a pretext: In denying protection, Captain Norwood told Johnson that he believed he liked “dick,” and thus should be placed on high security where he would have only one cell mate and could “get f---ed all the time;” Vitolo and Taylor laughed at this comment, and Taylor said that Johnson should just “learn to f--- or fight.” [Id.] See supra at 28.
2. The “Non-UCC Defendants” 55

The “non-UCC Defendants” – Director Johnson, Warden Treon, Classification Chief Wright, Lt .Paul, and Sgt. Willingham – contend that Johnson’s deliberate indifference claim must be dismissed because they did not participate in Johnson’s classification hearings. Def. Br. 2:22-24. Defendants’ premise – that only the classification committee can have any causal connection to Plaintiff’s injuries – is incorrect. Director Johnson,13 Treon, Wright, Paul and Willingham each had clear authority and obligation to take reasonable measures within the scope of his or her own duties to protect prisoners from rape; each was actually aware that Roderick Johnson was at substantial risk of serious injury; yet each either belligerently refused Roderick Johnson’s requests for assistance or responded, if at all, only with empty and purely ritualistic gestures. Johnson repeatedly sought help, to no avail, from Willingham in October 2000, November 2000, December 2000, and February 2001; from Wright several times in January and February 2001; from Treon several times in December 2001 and January 2002; from Johnson in January 2002; and from Paul in March 2002. See supra at 10-32. Wright and Treon also received and ignored inquiries about Johnson from the Ombudsman’s office. See supra at 30-31.Treon,
13Director Johnson had been court-ordered to ensure that all TDCJ wardens understood their responsibilities for protecting prisoners from rape. He ultimately secured Plaintiff’s placement in safekeeping, based on nothing more than Plaintiff’s “demeanor and orientation” – but only after intervention by the ACLU. See supra at 32-33.
56

Wright and Johnson argue that the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472 (1995) “leaves Johnson without a federally protected right to have his grievances, much less his letters of complaint, investigated and resolved.” Def. Br. 2:23. This argument is frivolous: Sandin concerned procedural due process rights and left completely untouched prisoners’ “other protection from arbitrary state action even within the expected conditions of confinement,” including “[the] Eighth Amendment[] and the Equal Protection Clause of the Fourteenth Amendment where appropriate[.]” 515 U.S. at 487 n. 11. Plaintiff has never claimed that his right to procedural due process was violated: he claims, rather, that Director Johnson, Wright and Treon were deliberately indifferent to the risk that he would be sexually assaulted, in violation of the Eighth Amendment, and that the letters and grievances they ignored are evidence that they were actually aware of the risk.
Treon, Wright and Johnson argue further that they responded reasonably to his letters and grievances because their offices have a “process” for handling letters and grievances, and that this process was followed and led in some cases to UCC hearings. Def. Br. 2:23-24. Defendants were well aware, however, from those very letters and grievances, that their “processes,” although leading to UCC hearings, were providing Plaintiff no protection whatsoever from rape. See supra at 14-17, 26, 29-30. “The imposition of extensive policies and the formation of a bureaucracy do
57

not [] immunize the system from constitutional challenge. The measure of a prison system's constitutionality, as always, is not its production of policies, but its treatment of inmates.” Ruiz, 37 F. Supp. 2d at 940.
Director Johnson also argues that “[t]here is no clearly established law that requires the Executive Director of the Texas Department of Criminal Justice to write back to Plaintiff, nor is there any clearly established law that requires Defendant Johnson to place Plaintiff in safekeeping based on the alleged letter.” Def. Br.1:31. The issue is not whether Director Johnson was required to “write back to Plaintiff” or to respond to Plaintiff’s letter by placing him in safekeeping, but rather whether Director Johnson knew of a substantial risk to Plaintiff and failed to take reasonable measures to abate the risk. The reasonableness of Director Johnson’s inaction must be judged in light of the federal court findings and orders in Ruiz which had instructed him in the gravity of the problem, the severity of the risk, and the nature of his responsibilities in responding to that risk.14
Lt. Paul argues that the Complaint does not state a claim of failure-to-protect
14At Defendant Johnson’s deposition, TDCJ counsel instructed him on grounds of qualified immunity not to answer various questions designed to elicit information as to his personal knowledge of the risk to Plaintiff and whether he had taken reasonable measures to abate the risk. For example, he was instructed not to answer what steps he took to implement, the 1999 and 2001 Orders in Ruiz. [R5:1312, 1314, 1317, 1318] He obtained a protective order which is still in effect pending resolution of his qualified immunity claim. [R5:1284-85]
58

against him because Plaintiff “does not allege that he ever told Paul that he was being sexually abused or that Paul was ever aware of the risk of harm to Plaintiff.” Def. Br. 1:30. This is inaccurate. The Complaint alleges, and Plaintiff submitted competent evidence to show, that gang members sexually abused Plaintiff and a mentally ill prisoner; when they informed Paul about the assault immediately afterwards he offered no assistance but instead threatened them. [RE Tab 5, ¶¶ 102104; R5:1333-34 ].
B. Defendants Had Fair Warning That Their Conduct in Arbitrarily Refusing Plaintiff Protection from Sexual Assault Violated the Eighth Amendment
It was clearly established at the time of Defendants’ actions that their conduct violated his constitutional rights. Indeed, Defendants had been repeatedly warned by the Ruiz court – in March 1999, June 2001, and October 2001 – that their conduct in creating high barriers to safekeeping and protective custody, their “game of willing disbelief” in the face of obvious risks, their placing on vulnerable prisoners the burden of proving their need for protection by fighting sexual predators, presenting bruises, and the like, violated the Eighth Amendment. See supra at 5-7, 20-21, 22-23.
Defendants complain that they nevertheless could not have known that their conduct violated the law because “[t]here is no Fifth Circuit or Supreme Court
59

holding on [the] specific legal question” of a prisoner’s entitlement to safekeeping. Def. Br. 2:25-26. The Supreme Court, however, has firmly rejected prison officials’ argument that the law is not clearly established unless there are Circuit or Supreme Court holdings on “the specific legal question” posed. Officials can “be on notice that their conduct violates established law even in novel factual circumstances," and “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though 'the very action in question has [not] previously been held unlawful.'” Hope v. Pelzer, 536 U.S. 730 (2002) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
In Hope, Alabama prison officials argued that, at the time they shackled the plaintiff to a hitching post, allegedly for security reasons, it had not been clearly established that use of the hitching post violated the Eighth Amendment. The Supreme Court rejected the argument, elucidating that for qualified immunity purposes the salient question is not whether the right has been established in a case with materially similar facts, but whether the state of the law at that time gave defendants “fair warning” that the alleged treatment was unconstitutional. Id. at 741. The Court decided that some notice was provided by Circuit precedent finding other forms of corporal punishment impermissible. Id. at 742. The Court further reasoned that “the obvious cruelty inherent in the practice should have provided respondents
60

with some notice that their conduct was unconstitutional,” id. at 745, since “Hope was treated in a way antithetical to human dignity--he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous.” Id. In addition, the Court found, an Alabama Department of Corrections regulation requiring that prisoners be given regular bathroom and water breaks provided fair warning to prison officials that their use of the hitching post without providing the requisite water and bathroom breaks would violate the prisoner’s Eighth Amendment rights. Id. at 743-744. Moreover, warning had been provided by a U.S. Department of Justice Report criticizing Alabama’s use of the hitching post as inhumane. Id. at 744-745. The Court decided that district court findings in a class action case against the Alabama DOC of multiple instances of degrading and inhumane use of the hitching post were also relevant: the awareness of risk attributable to any individual prison official could be evaluated in part by considering the pattern of treatment that inmates generally received. Id. at 738 n.8.
Defendants here had far clearer and more explicit warning than the prison officials in Hope that their conduct violated Plaintiff’s Eighth Amendment rights. The Supreme Court announced nearly a decade ago that prison officials violate prisoners’ Eighth Amendment right not to be sexually assaulted when, with
61

conscious disregard of a substantial risk that a prisoner will be raped, they fail to
take reasonable measures to abate that risk. Farmer, 511 U.S. at 839-847. At the
same time, the Supreme Court made clear that prisoners may not be required to
specifically identify their potential assailants in order to be entitled to protection. Id.
at 843-844.
The Fifth Circuit has likewise made it abundantly clear that “[p]rison authorities must protect not only against current threats, but also must guard against sufficiently imminent dangers that are likely to cause harm in the next week or month or year.” Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (quotation marks and citations omitted) (holding that a risk of serious harm could be found to be obvious where Texas prisoner alleged that he had filed three grievances about a predatory inmate, made at least one oral complaint to a guard, and wrote his correctional officer about the problem). What is more, the multiple decisions and orders in the Ruiz class action provided Defendants with the most precise warning imaginable that their conduct violated the Eighth Amendment. II. A TRIER OF FACT COULD FIND THAT BOWMAN, BRIGHT, KUYAVA, NORWOOD, RANJEL, TAYLOR, VITOLO AND WATHEN ARBITRARILY DISCRIMINATED AGAINST PLAINTIFF BASED ON HIS RACE AND HOMOSEXUALITY AND THEY HAD FAIR WARNING THAT THEIR CONDUCT DENIED EQUAL PROTECTION
A. Plaintiff Adequately Alleged Equal Protection Claims and
Presented Competent Evidence Supporting Those Allegations
1. Plaintiff’s Allegations Were Sufficiently Specific
Defendants15 contend that the allegations of the Complaint do not state an
15 Defendants continue to argue the Equal Protection claim as to Mooneyham, Willingham
62

Equal Protection claim because they are not “specific enough for each defendant to identify the group of similarly situated prisoners and to identify the manner in which the plaintiff was treated differently.” Def. Br. 1:19. In fact, the Complaint alleged that Defendants refused Plaintiff’s repeated pleas to be housed in safekeeping, insisting that, “because he is Black, he should either be able to fight off his attackers or else accept his sexual victimization”; they repeatedly “expressed contempt for non-aggressive gay men, and made it explicit that it was their practice to refuse to protect such inmates from sexual assault, at least until such inmates were savagely beaten.” [RE Tab 5 at 1-2] The Complaint alleged that in arbitrarily refusing Plaintiff protection from sexual assault, certain of the Defendants made remarks revealing that the refusal was motivated not merely by deliberate indifference but also by antipathy and contempt for homosexuals, and in particular for gay Black men. [Id.] The gist of their remarks was that homosexuals enjoy being raped, and that a gay Black man in particular should have to fight off sexual predators if he did not want to be raped. In voting to deny safekeeping, Major Bright told Johnson, “We don’t protect punks [homosexuals] on this farm;” Warden Wathen told him, “There’s no reason why Black punks can’t fight and survive in general population if they don’t want to f—;” Bowman told him, “If you want to be a ho, you’ll be
and Paul, even though Plaintiff expressly relinquished his equal protection claim against those
63

treated like a ho,” and “Get a man;” Ranjel added, “preferably a Black one;” and Kuyava, after a decision to deny safekeeping and send Plaintiff to a housing area heavily populated by gang members, stated, “Ms. Pretty is going to a good place now,” “You ain’t nothing but a dirty tramp,” and “Learn to fight or accept the f--ing.” [Id. at ¶¶ 33, 52, 55, 76. 77] The Complaint alleged that Captain Norwood told Plaintiff that he had probably consented to the sex because he “like[d] d---” and that he should be placed on high security where he would have only one cell mate and could “get f---ed all the time;” Vitolo and Taylor laughed at Norwood’s remarks, and Taylor told Johnson that he should “learn to f--- or fight.” [Id. at 86] Plaintiff submitted competent evidence supporting those claims. See supra at 9, 17, 18-19, 25, 28.
2. Plaintiff Provided Direct Evidence of Discrimination Defendants argue that the Defendants’ statements are insufficient to show intentional discrimination in violation of § 1983 because Plaintiff has not identified a similarly-situated, non-gay, non-Black individual to whom Defendants granted safekeeping. Def. Br. 1:19. This argument should be rejected for two reasons. First, Plaintiff requested such evidence in discovery but Defendants refused to produce it, and Plaintiffs opposed summary judgment on this ground with a Rule
three Defendants at the close of discovery. See R5:1223-24.
64

56(f) affidavit [R5:1283-1284]. See Int’l Shortstop, Inc. v.Rally’s, Inc. , 939 F2d. 1257 (5th Cir. 1991) (holding that where the evidence which the nonmoving party could offer to create a factual dispute is in the exclusive possession of the moving party, and informs the court that its diligent efforts to obtain the evidence have been unsuccessful, a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course.)
Second, Plaintiff did not need to identify a similarly-situated, non-gay, nonBlack individual to whom Defendants granted safekeeping in order to make out a prima facie case that Defendants denied him equal protection. “The precise requirements of a prima facie case of discrimination can vary depending on the context and were never intended to be rigid, mechanized, or ritualistic." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) (interior quotation marks and citations omitted).16 Furthermore, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. Id. at 511.
Because direct evidence of discriminatory intent is rarely available, plaintiffs usually must rely on circumstantial evidence, which is less advantageous since it
16The inquiry into intentional discrimination is essentially the same for individual actions brought under sections 1981 and 1983 and Title VII. See Wallace v. Texas Tech University, 80
65

subjects them to the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Within that framework, the plaintiff carries the initial
burden of establishing a prima facie case of intentional discrimination.17 The
defendant can rebut that prima facie case by producing evidence of a legitimate
reason for the adverse action. Then the burden shifts to the plaintiff to prove that the
discriminatory motive was a “but for” cause of the adverse action. If the plaintiff
presents evidence that the legitimate reason given by the defendant was a pretext, a
jury may infer the existence of this "but for" causation. See Texas Dep’t of Com’ty.
Affairs v.Burdine, 450 U.S. 248, 252-253 (1981) (citing McDonnell Douglas).
On the other hand, if the plaintiff can present direct evidence that the
employer's motivation for the adverse action was at least in part based on
discriminatory animus, the plaintiff is entitled to bypass the McDonnell Douglas
F.3d 1042 (5th Cir. 1996), citing Briggs v. Anderson, 796 F.2d 1009, 1019-21 (8th Cir.1986) . 17“The burden of establishing a prima facie case of disparate treatment is not onerous. The
plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” Texas Dep’t of Com’ty. Affairs v. Burdine, 450 U.S. 248 (1981). In McDonnell Douglas, the Court described an appropriate model for a prima facie case of racial discrimination in employment: The plaintiff must show: "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. The Court added, however, that this standard is not inflexible, as "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations." Id., at 802, n. 13.
66

framework altogether, and the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor. See Fierros v. Texas Dep’t. of Health, 274 F.3d 187, 191-192 (5th Cir.2001); Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir.1993); Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995 (5th Cir.1995). Plaintiff Johnson has shown Defendants’ discriminatory motive through both circumstantial and direct evidence.
Direct evidence is "evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption." Portis v. First Nat'l Bank, 34 F.3d 325, 328-29 (5th Cir.1994) (quoting Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d at 861). Direct evidence “includes any statement or document which shows on its face that an improper criterion served as a basis, not necessarily the sole basis, but a basis, for the adverse [... ] action." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.2003); see also Fierros, 274 F.3d at 192; Portis, 34 F.3d at 329.
The statements that Bowman, Kuyava, Norwood, Ranjel, and Wathen made to Plaintiff in denying him protection from rape (e.g.,“we don’t protect punks [homosexuals];” “There’s no reason why a Black punk can’t fight if he doesn’t want
67

to f—”) are classic examples of direct evidence of discriminatory intent. Compare, e.g., Fierros, 274 F.3d at 195 (plaintiff’s statement that her employer said she had been denied a pay increase because she filed a discrimination complaint against him was direct evidence of retaliatory motive); Portis, 34 F.3d at 329 (plaintiff’s testimony that her employer told her that she “wouldn’t be worth as much as the men would be to the bank” was direct evidence of the employer’s discriminatory intent); Brown, 989 F.3d at 861-862 (evidence that a supervisor referred to the plaintiff and other African Americans as "niggers" was direct evidence that racially discriminatory animus motivated the contested disciplinary action). Because Plaintiff presented direct evidence of Defendants’ discriminatory intent, the burden has shifted to them to prove at trial by a preponderance of the evidence that they would have taken the same action regardless of the impermissible criterion they employed.18 See supra at 62. Even if Defendants had presented such evidence, it would have been insufficient to secure summary judgment but merely created a
18 Defendants rely on E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173 (5th Cir. 1996) for the proposition that comments alone do not violate the equal protection clause. Def.Br.1:21. Plaintiff does not claim that Defendants’ words violated his rights; their failure to grant him protection violated his rights, and their words illuminated their discriminatory motive. In Texas Instruments, the Court noted that “direct and unambiguous” comments may show discriminatory intent depending upon the context. 110 F.3d at 1181. Here, Defendants made the offensive comments in the context of denying safekeeping.
68

triable issue of fact. See Fabela, 329 F.3d at 418.19 Vitolo and Boyle point out that Plaintiff does not attribute specific racist or
homophobic remarks to them, and they contend that they denied him protection solely because he did not produce enough evidence to persuade them that he was at risk. Def. Br. 1:21-22.20 Plaintiff met that contention with ample circumstantial evidence from which a trier of fact could conclude that this purported reason was a pretext, covering up an impermissibly discriminatory motive: Plaintiff showed: (1) he was plainly eligible for protection under TDCJ’s official policy; (2) TDCJ generally does not require prisoners to present “objective” proof that they will be victimized before granting safekeeping, but to the contrary in the vast majority of cases grants safekeeping without such proof; (3) Vitolo and Boyle participated in UCCs during which their fellow committee members explained the UCC’s refusal to grant safekeeping with racist and homophobic remarks; (4) rather than distancing
19The two cases Defendants cite are distinguishable. In Wheeler v. Miller, 168 F.3d 241 (5th Cir. 1999), and Beeler v. Rounsavall, 328 F.3d 813 (5th Cir. 2003), comparison with other similarly situated persons was necessary because plaintiffs, each of whom were members of a “class of one,” had no direct evidence of discrimination.
20Defendants also advance this argument on behalf of Mooneyham, Willingham, and Paul, although Plaintiff relinquished his equal protection claim against them at the close of discovery. See R5:1223-24.
69

themselves from those remarks they essentially adopted them.21 This circumstantial
evidence permits the inference that in denying safekeeping Vitolo and Boyle were
motivated by the same invidious discriminatory intent as their fellow committee
members who openly expressed their homophobic and racial bias. See McDonnell
Douglas Corp. v. Green, 411 U.S. at 804-805 (providing examples of evidence by
which pretext may be proved, and ruling that plaintiff “must be given a full and fair
opportunity to demonstrate by competent evidence that the presumptively valid
reasons for his rejection were in fact a coverup for a racially discriminatory
decision”).
3. Plaintiff Adequately Alleged That Defendants’ Conduct Was Not
Rationally Related to Legitimate Correctional Needs Defendants contend that the Complaint does not state an equal protection
claim because it fails to allege that their policy of refusing safekeeping to Blacks and
homosexuals was devoid of a rational relationship to a legitimate penological goal.
Def. Br. 1:22-24. According to Defendants, Plaintiff had the burden of alleging that
21When Wathen told Johnson, “ “There’s no reason why Black punks can’t fight and survive in general population if they don’t want to f—,” Vitolo voted to table the life endangerment claim; she responded with laughter to Defendant Norwood’s lewd remark to the effect that Plaintiff was not entitled to safekeeping because he was gay and probably enjoyed sexual abuse. See supra at 19, 28. Boyle later told Plaintiff that since he had not been stabbed or “gutted,” prison officials would not place him in safekeeping, and that unless Plaintiff signed a waiver of his life endangerment claims, “we are really going to f--- you over.” See supra at 32.
70

“the use of race was not rationally related to a legitimate penological interest,” and since he did not so allege, “the great deference afforded state prison officials requires this Court to assume” that their race-based decision to deny safekeeping was related to a legitimate penological interest. Def. Br.1:26. This argument is based on multiple fallacies.
First, the “rational relationship” standard does not apply to prisoners’ racial discrimination claims: a strict scrutiny test applies, and prison officials have the affirmative burden of demonstrating that there are “particularized circumstances” in which racial tensions make it essential for the sake of security to consider race in making housing assignments. See Lee v. Washington, 390 U.S. 333, 334 (1968); accord, Sockwell v. Phelps, 20 F3d 187, 191 (5th Cir. 1994).
Second, in cases when the rational basis test does apply, Defendants’ premise that “to survive a motion to dismiss, a prisoner must allege” lack of rational basis, Def. Br. 1:22, is incorrect. In Turner v. Safley, 482 U.S. 78 (1987), the Court made it plain that when a prisoner challenges a prison policy as an infringement of constitutional rights, it is prison officials who have the initial burden of articulating a “legitimate penological objective” for the policy. See Turner, 482 U.S. at 89-90. It then becomes the prisoner’s burden to prove that the purported justification is invalid, because “the logical connection between the regulation and the asserted goal
71

is so remote as to render the policy arbitrary or irrational,” or because it is not “neutral,” or because it is “an exaggerated response.” Id. at 89-91.22
Defendants here have never had the temerity to assert that they have a
legitimate penological interest in refusing safekeeping status on the basis of any
prisoner’s race or sexual orientation. To the contrary, they have flatly denied that
race played any part in their decisions to deny Plaintiff safekeeping. [RE TAB 6 at
81- 85] In moving for summary judgment they insisted that the sole reason they
refused to grant Plaintiff safekeeping was that he could not prove to their satisfaction
that he was being victimized. [R4:932-934] And even while urging this Court to
“assume” that they have a legitimate reason for denying safekeeping based on race
and homosexuality, see Def. Br. 1: 22-24, they nowhere identify what that interest
might be.
Third, even if plaintiffs did have the burden under Turner of pleading lack of
rational purpose, the Complaint here amply met any such burden. It abounds with
22 The cases Defendants cite are inapposite. In Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002), the issue was surveillance of male prisoners by female guards; the court did not analyze the plaintiff’s equal protection claim using the Turner standard but affirmed summary judgment because the male and female prisoners were not similarly situated. Id. at 746. In Thompson v. Patteson, 985 F.2d 202, 207 (5th Cir. 1993), the court noted that the plaintiff had not alleged discrimination on the basis of race or some other personal or class characteristic or that he was treated differently because of any improper motive. Overton v. Bazzetta, 123 S.Ct. 2162, 2168 (2003) says nothing about pleading requirements; it merely states, consistent with Turner, that the burden “is not on the State to prove the validity of prison regulations but on the prisoner to
72

allegations, both general and specific, that Defendants’ conduct was arbitrary and irrational, and thus, ipso facto, not “rationally related to a legitimate penological interest.” See Turner, 482 U.S. at 89-90 (“[A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.”). Plaintiff alleges, for example, that in denying him protection from sexual victimization, Defendants subjected him to “an irrational and arbitrary classification based on his sexual orientation, and treated him differently than other similarly situated inmates based on their hostility and animus toward non-aggressive gay men.” [RE Tab 5, ¶ 124] He alleges that Defendants’ own official policy explicitly recognizes homosexuality as a major risk-factor for sexual victimization and a reason to grant safekeeping, yet Defendants arbitrarily relied on his homosexuality as a reason to deny him safekeeping. [RE Tab 5,¶ ¶ 30, 33, 55, 86]
4. Plaintiff’s “Information and Belief” Allegations Were Proper Defendants assert that it is “not proper” under the Federal Rules of Civil Procedure to plead on information and belief, Def. Br. 1:20,23 citing McClendon v.
disprove it.” Id. 23The only allegations that Plaintiff pled “on information and belief” are that “the Allred
Defendants follow a custom and practice of denying safekeeping to vulnerable Black inmates even in cases of obvious need,” that they are “far less likely to grant safekeeping to Black inmates than
73

City of Columbia, 302 F.3d 314, 323 (5th Cir. 2002). McClendon concerned the
sufficiency of the evidence on summary judgment, “after significant discovery,” and
had nothing whatsoever to do with the adequacy of allegations pled “on information
and belief.”
Defendants also assert that “[i]n those areas where a party may plead on
information and belief, the party must articulate the facts which lead them to the
alleged belief.” Def. Br.1:20. Defendants’ sole source for this proposition is ABC Arbitrage Plaintiffs Group v. Tchuruk, 201 F.3d 336 (5th Cir. 2002), a case which
concerned only the statutory pleading requirements for securities fraud claims under
the Private Securities Litigation Reform Act, which specifically provides that “‘if an
allegation regarding the statement or omission is made on information and belief, the
complaint shall state with particularity all facts on which that belief is based. ’” 201
F.3d at 350 (quoting the statute).
5. Even if Plaintiff Were Required to Meet a Heightened
Pleading Standard He Has Met That Standard
to other similarly situated inmates,” and that they “follow a custom and practice of denying safekeeping to non-aggressive, gay men in need of protection.” [RE Tab 5, ¶ 2] Plaintiff sought to discover documents on these points but Defendants refused to produce them, and Plaintiffs opposed summary judgment with a Rule 56(f) affidavit on this ground. See supra at 60. The case Defendants rely on, see Def. Br. 1:20, is completely inapposite. Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) held that a plaintiff’s allegation that his complaint was “timely” filed was insufficient because the complaint was untimely on its face due to a rebuttable legal
74

Defendants assert that this Court’s decision in Schultea v. Wood, 47 F.3d 1427
(5th Cir. 1995) (en banc), requires § 1983 plaintiffs suing state officials in their
individual capacities to meet a heightened pleading requirement. Def. Br. 1:12. That
contention is inaccurate. Rather,“[w]hen a public official pleads the affirmative
defense of qualified immunity in his answer, the district court may, on the official’s
motion or on its own, require the plaintiff to reply to that defense in detail.”
Schultea, 47 F.3d at 1433.24 Defendants here never moved for an order requiring
Plaintiff to file a reply,25 the District Court did not exercise its discretion to order a
reply sua sponte, and the propriety of that exercise of discretion is not at issue in
presumption, which the facts alleged in the complaint failed to contradict. Id. at 389-380.
24In Schultea, this Court decided that henceforth it would not rely upon a requirement of heightened pleading of complaints as the procedural mechanism for protecting state actors from invalid claims at the pleading stage, but rather would rely upon Federal Rule of Civil Procedure Rule 7(a), which permits the district courts to order a reply to an answer in cases where it believes more particularity is required. Id. at 1433. The Court held that a district court “may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. . . . when greater detail might assist.” Id. at 1434 (emphasis added).
25 Defendants offer a peculiar explanation for their failure to move for a Rule 7(a) reply: They say that they had an “informal conversation with the court’s staff” which “confirmed” that Rule 7(a) replies were “disfavored” in the Northern District. Defs.’ Br. 1:14 n.36. Whatever Defendants may have gleaned from an informal conversation entirely outside the record in this case, the reality is that Rule 7(a) motions are entertained in the Northern District, and the District Court grants such motions in appropriate cases. See Forge v. City of Dallas, No. 3-03-CV-0256D, 2003 WL 21149437, (N.D. Tex. May 19, 2003) (unpublished) (granting the defendants’ motion to require the plaintiff to file a Rule 7(a) reply where the complaint failed to allege any facts regarding the defendants’ conduct).
75

this appeal. See Appellants’ Statement of the Issues, Def. Br. 1:3.26 Thus, the issue posed in this appeal is whether Plaintiff’s Complaint satisfies the requirement of Federal Rule of Civil Procedure 8(a) as a “short and plain statement of the claim showing that [he] is entitled to relief.” The Complaint far exceeds that standard.
Furthermore, even if Defendants had moved for an order requiring Plaintiff to file a Reply, it would have been pointless for the District Court to order one since Defendants’ Answer to the Complaint merely made a blanket denial of Plaintiff’s factual allegations, without addressing a single one of the specific allegations regarding Defendants’ wrongful conduct. [RE Tab 6, ¶1, 11-16] Thus, the Complaint itself provided even more detail than would have been required by a Reply: “By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply.” Schultea, 47 F.3d at 1433. In this case, greater detail from Plaintiff would not have assisted the District Court, and the District Court certainly did not abuse its discretion in not sua sponte ordering a Rule 7(a) reply.
26Because Defendants failed to raise this issue on appeal, they have waived it. See Andrade v. Chojnacki, 338 F.3d 448, 457 (5th Cir. 2003); United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991).
76

See id. at 1434. In any event, even if Plaintiff were required to meet a heightened pleading
standard, he has met it. Defendants concede that even heightened pleading requires no more than “claims of specific conduct and actions giving rise to a constitutional violation” rather than mere “conclusory allegations.” Def.Br. 1:16 (citing Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985)).27 The Complaint amply meets this standard. It identifies each of the Defendants who were personally involved in the constitutional violations alleged, and the specific acts or omissions of each that were causally connected to the constitutional violations alleged. See Anderson v. Pasedena Indep. Sch. Dist., 184 F.3d 439, 443-444 (5th Cir.1999) (stating that, in order to meet a heightened pleading standard in a § 1983 case, a plaintiff “must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged;” plaintiff had sufficiently pled a causal connection to overcome qualified immunity even though the plaintiff did not know prior to discovery whether each defendant had voted for or dissented from those decisions).
B. Defendants Had Fair Warning That Arbitrary Discrimination
27As this Court has pointed out, the difference between “heightened pleading”and the notice-pleading required by Rule 8(a) has amounted in practice merely to a requirement that a plaintiff plead more than conclusions. Schultea, 47 F.3d at 1430.
77

Against Prisoners on the Basis of Race or Sexual Orientation Violated Their Right to Equal Protection of the Laws Defendants maintain that the qualified immunity question posed by this appeal is whether it was clearly established, at the time of the events on which the Complaint is based, that “the use of race or sexual orientation as a factor in state prison classification decisions violates the Equal Protection Clause, when the use is rationally related to a legitimate penological interest.” Def. Br. 1:25 (emphasis added). That is certainly not the question here. Plaintiff alleged and submitted competent evidence to prove that Defendants’ decisions denying Plaintiff protection from assault were arbitrary and irrational, the product of deliberate indifference, racism, and homophobia. Thus, the qualified immunity question in this case is whether Defendants violated Plaintiff’s constitutional rights by arbitrarily refusing him protection from known risks of sexual assault, and if so whether that right was clearly established at the time of Defendants’ actions. By the year 2000, any reasonable correctional official would have known that the Equal Protection Clause forbids arbitrary discrimination against prisoners on the basis of their race. See Lee v. Washington, 390 U.S. 333 (1968). While Defendants claim that Lee’s prohibition on discrimination is limited to “segregation” based on race, Def. Br. 1:25, that is flatly incorrect: the Supreme Court has explained that any
78

“invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to ‘prison security and discipline.’” Hudson v. Palmer, 468 U.S. 517, 523 (1984) (citing Lee v. Washington).28
Similarly, Defendants had fair warning that they could not deny safekeeping to a prisoner merely because he is a homosexual. Years before the events that are the subject of the Complaint, the Supreme Court held that a state violates the Equal Protection Clause when it deliberately seeks to disadvantage homosexuals, since, "[i]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Romer v. Evans, 517 U.S. 620, 634 (1996) (internal quotation marks and citation omitted). Cf. Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (per curiam) (holding that allegations of “irrational and wholly arbitrary” government action, “quite apart from ... subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.” ). Defendants do not and cannot claim that they had any legitimate interest in denying Plaintiff safekeeping on account of his sexual orientation: according to their own
28Defendants’ claim that classification decisions on the basis of race are evaluated under Turner, see Def. Br. 1:23 & n.71, is simply incorrect. See supra at 66.
79

official policy, homosexuality provides a prima facie justification for safekeeping. 80

CONCLUSION The Court should affirm the District Court’s denials of summary judgment and judgment on the pleadings. Respectfully submitted this 29thth day of December 2003.
_______________________ Margaret Winter (Attorney in
Charge)
Amy Fettig Craig Cowie
National Prison Project of the ACLUF, Inc.
733 15th Street, NW, Suite 620 Washington, D.C. 20005 Tel.: 202.393.4930; Fax:202.393.4931 mwinter@npp-aclu.org Edward Tuddenham 1203 Newning, Austin, TX 78704 Tel: 512.441.9759; Fax: 512.443.4258
Counsel for Plaintiff-Appellee
81

CERTIFICATE OF SERVICE I hereby certify that a true and correct paper copy and a true and correct electronic copy of BRIEF OF PLAINTIFF-APPELLEE has been served by first class United States Mail, postage prepaid, and that the brief has also been transmitted by email, this 29th day of December 2003 to: Celamaine Cunniff P.O. Box 12548, Capitol Station Austin, Texas 78711 Cela.Cuniff@oag.state.tx.us Counsel for Defendants-Appellants
_______________________ Margaret Winter National Prison Project of the
ACLUF, Inc. 733 15th Street, NW, Suite 620 Washington, D.C. 20005 Tel.: 202/393-4930 Fax.: 202/393-4931 mwinter@npp-aclu.org
82

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) Pursuant to Fed. R. App. P. 32(a)(7)(B) and (C) and Fifth Circuit Rules 32.2 and 32.3, the undersigned hereby certifies that this brief complies with the typevolume limitation of Fed. R. App. P. 32(a)(7)(B)(i), the typeface requirements of Fed. R. App. P. 32(a)(5), and the type style requirements of Fed. R. App. P. 32(a)(6) as follows: 1. This brief contains 18,784 words excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) as counted by WordPerfect 10, the word-processing software used to prepare the brief; 2. This brief has been prepared in a proportionally spaced typeface using WordPerfect 10 in 14 point Times New Roman with footnotes in 12 point Times New Roman.
_____________________ Margaret Winter Attorney for Plaintiff-Appellee
83

 
 STEP 1 OFFENDER GRIEVANCE FORM

PASOl

Forma Para Quejas de los Preso

1,.,d" Offender Name:

f ,C f( /(. J¢ho Son TDCJ# lp;;qo2/f

Unit:l/omd dllzo-d

8 Housing Assignment: ~ ? - 2.2. T

Unit where incident occurred: .I.'.t.)t;hnIl6!Zl!101l..5~-,,aut:£''.&.G,,,~,-!d~_ _-=r'-:_____
. --7-

OFFICE USE ONLY
Para Uso De La Ofiaana Solamente

Grievance #: d t o l 114 &3'7 Date Received: FEB 2 6 2001

Date Due:

APR 0 7 2001

Grievance Code: ->.,60""-LI_ _ __

a InvestilE'tor Nurrber: 1?22'

n T. CARROLL/NV

o EM

0 UDF 0 MED

DADA 0 REL

0 SSI

You must try to resolve your problem with ~ staff member before you submit a fonnal complaint. The only exception is when
appealing the results of a disciplinary hearing.
Who did you talkto (name, title)? ?lAiC e/oSfuape!!l, t./.tftZM iJarp5.1 When) 1:. Z it ~(?I
What was:theirresponse? TiN• .&Mn Co rI Ant d£~jd z: o!•" Lil<:,
What action was taken? 1t/4 oft
State your grievance in the space provided. Please state who, what, when, where and disciplinary case number if appropriate.

1-127 Front(9/1/1999)

PLEASE SIGN ON BACK

(OVER)

=-\

Action Requested to Resolve your Complaint.

.7

Offender Si ature:
Administration's Decision
o Mandatory referral to lAD (Grievance worksh et attached) o No action warranted (Explain).

Dare:

Your allegations are being investigFltpcl by Uni. t C1 ?ssific:ation and Security Threat Group.
Upon completion you will.be rescheduled.

\

Signature Authority:

MAR 012001
Date:

..... If you are dissatisfied with the Step 1 response, you may submit a Step 2 (1-128) t,o the Unit Grievance Investigator within 15 days from the Step 1 1ap0n5e'. State your reason foe appeal on the;Step 2 form~

Returned because:

o 1. Grievable time period has expired.

/ 06. No requestt'd relief ,is stated."

o 2. Submission in excess of 1 every 7 daysit

~'O 7.

Malicious use of vulgar, indecen~ or physically
threatening language directed ~t an individual.

o 3. Original not submitted'

08. The issue presented.is not grievable.

j

o 4. Inappropriate/excessive attachments" o 5. No do,umented attempt at informal
resolutIon. II·You may resubmit this issue once corrections are made.

o 9. No remedy exists. o 10. Illegible/Incomprehensible'
o - 11. Inappropriate (reques' is for employee discipliruuy actton or consequential or pumttve damages).

1·127 Back (9/1/1999)

UGI: _ _ _ _ _ _ _ _ _ _ _ _ _ __

 
 • •

".'

. J A T- '8 CEPAFm.t&NT OF"CRJMlN.f '\JsnUNIT -'r

Offend" er Protection Investigation Ponn
r Upe!! atrIpl!!," of tn.. fonn '!!!Sf It. '" ...",.. OllIe! fa: . . . . ami ""."nt • U!!!t
Ptm. pt1~ or tY!! .11 ""'. on !!II fDmL
Nameaf~ndar. :rIZADW1>rB~,k • Oatl'ilMSUgau"n aahOOICat (2-8-17 1

,

I~~ ~ EXHIBIT

n =" v. '-1IIe campIa/nfiIg
, ) SUlfa.

l1limb.. ata ;.ng fit IICUItJ tInIt graupt ilfNo ()
<:0"...114 ( ) .,nUllnlllllplta" Wtgraup?_ _ _ _ __

___________________ Dn IIIii 1"'Id' P, ........ ~ ~4?ft~'a:.:
'" ,'-. <',

ucc CNIII.,..
a... ......rllCIlD .'.C._C"__________

_ ~D~ _____________ .-

sec Rllrllw DIIa:,_ _ _ _ __

,-"PiuVld \.ICC , : ida II I n ( ) _ _ ~ IIr ICC:,_ _ _ __

-

aT , ..o...UICC rll iii. I r ,() ••11111111...'_1::_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-

I

':, '

• • ,OPFENDER PROTEC~,!t INVESTIGATION FORM' INVESTlGAnON OCTAI~

QCRurn1n.NtHamoeu:sl~ng,:!::;!:;:i8~II"o"n:dIi!1L$1-n;;g

IN lDCJa
CUl\WltWOIU

11);
' "• • It

)~£~;,,?

:ad>

3:; ,1' AgI;

HIi;IIt

II "Wt"llallt I Z() .. 0 "1Iy. , ttE

CIIa ~ began: r2 - 7 -(II

tImI 1M Sa Iii ntIIpn: - ::l2.:T.f'

'2- 6t 18M, - t.AwI- .w.n' (U ."..dI1 till mom lKC'.!lncid~Int- ' dI1lt o=ur? D8IE tif

~ lIIM:

201 'r /1
II.f: ~()

Wlledl1ltdln mu. . . ofap= ItJe.-1 ..enreu ...idnn? a.. ; ' - 7 - " nne ,.,P()

Haw_Itr.parwd'I (cMCk_) ,ol.ehmCiIrlin11' () .....t 'V~GIf II ()., . . . ()0IMr([1IIII,i11I"""1.)_ _~_ _ _ _ __
_ of perIOI. r.poi'l/ng .....ratkIn (I aIIIr tIIan ... II. being 1I....IIcIt'-=~~/A~"-_ _..;.._ __

............., ;;pwIi1cl'. b...llIII AIIIrI? c)f No () v_ (Iv.......... of"IIIIIIII=IItrt);):_ _ _ _ __

A# ....atlAlm'l s,'''-c:a' mr

Qrt_ . . . . . . I:IMftIiftllrHcI.r.III••1ft1()No

w.r7

'3-9-04

"'''1 ,... ..... i:Cd. ","!'" '".... " lid ID

Adm. _ PI I :tie 0 ' Js'f n q

91"- JlllarIlllllng1!lMlllrlllU.1t7()No

tlV. . . . atlllClllil"1iti'eq '0:

li-'-(lC '. (

W/ltw,tc", 1'ItwtlGmwapilar..,. 1F1'I ~t

11- n drc&;"«';+ « th,4.,'ern

Of WIll .., pI'Iy"

we , ~

~ aM. . . prllerJlIcI7

No () v_

.

" • ell I Il:ol:

Of ....... .., lid mtnlQlFlk.......1II? No ()Ytt '(liMo. " hwllrnoO .. ,"" ~-.. d~I t"fIb I,,"
Llltlllfldlli II, i• • •......, at,• •" (1IIiIC:tI. a"PI.1I7111111'1111tu«40Gi~"!!..._ _ _ _ __

,,,,,/r,,.,,.,,.. W",l•rt.e,ncro,fe'u..N.. .II., -"u.f..i."~OINo ()V_ (1!1-. ,'''wllfnoO
'hiS . . . ..,9(... ( )V_ LIlt iIIIII ~.wII/I" II••'; P• • • ~I) atk... dtw(1) ( h• •, n t 'I): ~

" .

-00179 1U141

II, u a. "'!!.. •

.....

,.....-

2

•
'.

'f"l'''''j I .
.QlllllNDER WAJVI!t ITATIII!Hf

..
• i"

.
I't tit SlGNATUQ 8ILQW, I ACICNOIM.IDQI1HAT I HAW MAD AND UNDERSTAND 'THE AIOV! ITATEMENT AND IAM SIGHING 'THIS ITAT&tEN1' ~ tI'I OWN flRlEWILL.

I

i'.ttI_.,. .J=- DA.,.O"UCCCO..

U.I'_. ._. ._.s&.~·::-/~"'i:.a~/l-_ _ _ _ _ _ _

!!ff./

I

•

-- -.. -~--= .,... -

~00180 1U141

 
 Home : Prisoners' Rights : Conditions of Confinement

Texas Officials Complicit in Gang Rape and Sexual Slavery of Gay Black Man, ACLU Charges (4/17/2002)

Prisoners' Rights: The ACLU's National Prison Project is the only national litigation program on behalf of prisoners. Since 1972, the NPP has represented more than 100,000 men, women and children. The NPP continues to fight unconstitutional conditions and the "lock 'em up" mentality that prevails in the legislatures. Learn more about our project and take action to protect the rights guaranteed to all Americans.

FOR IMMEDIATE RELEASE
WASHINGTON--In a case that highlights prison systems' failure to protect vulnerable prisoners -- and the role bias plays in who gets protected -- the American Civil Liberties Union today filed a lawsuit against Texas prison officials who permitted a gay African American man to be repeatedly raped and sold as a sexual slave for $5.

In a legal complaint that reads like a nightmare scenario from the graphic HBO prison drama ""Oz,"" the ACLU detailed the story of 33-year-old Navy veteran Roderick Johnson of Marshall, Texas, who for the last 18 months has been bought and sold by gangs, raped, abused, and degraded nearly every day.

""Prison officials knew that gangs made

Roderick Johnson their sex slave and did

nothing to help him,"" said Margaret Winter,

Associate Director of the ACLU's National

Prison Project. ""Our lawsuit shows that

Texas prison officials think black men can't

be victims and believe gay men always want

sex -- so they threw our client to the

Roderick Johnson, a

wolves.""

Navy veteran serving

time for a non-violent

According to the ACLU complaint, Johnson appeared before the prison's all-white classification committee seven separate times asking to be placed in safe keeping from predatory prisoners. Instead of

crime, has been bought and sold by gangs, raped, abused, and degraded nearly every day.

protecting Johnson, the ACLU complaint

charges, the committee members taunted him and called him a ""dirty

tramp,"" and one said, ""There's no reason why Black punks can't fight if

IN THIS SECTION
General Conditions of Confinement Immigrant Detention Medical Care Mental Health Care Over-Incarceration Restriction of Rights Women in Prison
RELATED INFORMATION
Publications Legal Documents Legislative Documents Resources Fact Sheets Supreme Court Cases Court Cases

they don't want to fuck.""
Gangs and other prisoners often prey upon prisoners who are gay, as well as those who are young, small, mentally or physically disabled, first-time offenders, shy, perceived as weak, or possessing feminine characteristics, Winter said. In Texas and elsewhere, individuals identified with one or more of these vulnerable characteristics typically qualify for a prison classification known as ""safe keeping"" or ""protective custody.""
Johnson informed the prison's staff of his sexual orientation during the intake process. But after leaving the intake unit he was placed in general population. The result, according to the ACLU complaint, was devastating.
The complaint describes how gang members negotiated fees of $5 to $10 for sex with Johnson. ""He was told that if he refused, he would be beaten and killed. As a sexual slave, he was repeatedly penetrated anally and forced to perform oral sex at the command of gang members,"" the complaint said.
""I know most people don't care what happens to prisoners, but no matter what Roderick has done he doesn't deserve the abuse he has received,"" said Johnson's cousin Sharon Bailey, whose calls to prison officials were ignored. ""The entire family is horrified and devastated by what's happening to Roderick. We are afraid we will never see him alive again. We have faith that God will protect him, but the prison must also be held responsible for ignoring our pleas for help. Today we are praying for Roderick -- and fighting for him.""
Texas was identified as the worst state in the nation for prison rape in Human Rights Watch's 2001 book-length report, No Escape: Male Rape in U.S. Prisons. Independent observers, including a federal judge, have said that some prisoners in Texas are vulnerable and need protection -- which they are not getting.
""Evidence has shown that, in fact, prison officials deliberately resist providing reasonable safety to inmates. The result is that individual prisoners who seek protection from their attackers are either not believed, disregarded, or told that there is a lack of evidence to support action by the prison system,"" wrote U.S. District Judge William Wayne Justice, in a class-action case about Texas prison conditions that has spanned 30 years. He also said evidence ""revealed a prison underworld in which rapes, beatings, and servitude are the currency of power.""
Nationally, the ACLU has received hundreds of complaints about rape and sexual assault of prisoners. The ACLU's National Prison Project recently filed a lawsuit in Colorado on behalf of a woman who was sexually assaulted while being transported between jails after her arrest. Other cases are being investigated and the ACLU plans to file additional lawsuits in the near future.
ACLU Complaint in Johnson v. Johnson available online at: /prison/conditions/14686lgl20020418.html.

ndnd
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web site of the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU. User Agreement | Privacy Statement | FAQs

 
 Home : Prisoners' Rights : Conditions of Confinement

ACLU Says Faulty Investigation by Texas Corrections Department Led to Grand Jury's Failure to Indict Rape Suspects (2/26/2004)

Prisoners' Rights: The ACLU's National Prison Project is the only national litigation program on behalf of prisoners. Since 1972, the NPP has represented more than 100,000 men, women and children. The NPP continues to fight unconstitutional conditions and the "lock 'em up" mentality that prevails in the legislatures. Learn more about our project and take action to protect the rights guaranteed to all Americans.

FOR IMMEDIATE RELEASE
AUSTIN, TX-Citing evidence that a gay prisoner had repeatedly pleaded with corrections officials to help him escape rapes by prison gang members, the American Civil Liberties Union today released documents refuting a flawed internal investigation by the Texas Department of Criminal Justice that claimed the victim consented to sex with his attackers.
"The claim that Roderick Johnson was engaging in consensual relationships with the violent predators who were coercing him is ludicrous and is contradicted by the evidence showing his repeated appeals to prison officials and staff," said Margaret Winter, Associate Director of the ACLU's National Prison Project and Johnson's attorney. "Gangs control life in the Allred Unit. As a gay man, Mr. Johnson's only hope of surviving his incarceration was to submit to sexual slavery."
For 18 months Roderick Keith Johnson was housed at the James A. Allred Unit in Iowa Park, Texas where prison gangs bought and sold him as a sexual slave, raping, abusing, and degrading him nearly every day. Johnson filed numerous grievances, letters, and complaints with prison officials and appeared before the unit's classification committee seven separate times asking to be transferred to safe-keeping, protective custody, or another prison, but each time they refused. Not until April 2002, after the ACLU's National Prison Project intervened on Johnson's behalf, was he moved out of the Allred Unit and into a wing designated for vulnerable prisoners.
Now paroled and living in Austin, Johnson has been diagnosed with posttraumatic stress disorder and continues to be plagued by nightmares because of the horrors he endured while incarcerated. "In prison, gay men are at the bottom of a cruelly constructed pecking order among inmates avoiding sexual exploitation is nearly impossible," said Johnson.

IN THIS SECTION
General Conditions of Confinement Immigrant Detention Medical Care Mental Health Care Over-Incarceration Restriction of Rights Women in Prison
RELATED INFORMATION
Publications Legal Documents Legislative Documents Resources Fact Sheets Supreme Court Cases Court Cases

From the first day he entered the Allred Unit, Johnson alerted staff that he was gay and in need of protection from predatory prisoners. Despite their

awareness of the institutional tradition that gay prisoners are victimized and the obvious risks to Johnson, officials chose to send him to general population where he was raped.
Indeed, just 10 months prior to Johnson's prison admission, a federal district court order chastised TDCJ for its continued failure to protect vulnerable prisoners from sexual assaults. "Prison officials deliberately resist providing reasonable safety to inmates," the court said. "The result is that individual prisoners who seek protection from their attackers are either not believed, disregarded, or told that there is a lack of evidence to support action by the prison system. . . . Prison officials at all levels play a game of willing disbelief, one that appears adequate on paper and fails dismally in practice."
Evidence presented today by the ACLU documents Johnson's year-and-ahalf-long paper trail of complaints to prison officials. Administration responses to the complaints follow a strikingly familiar tone. "You were . . . denied transfer, safe keeping, and protective custody due to insufficient evidence. You have not provided any new information. If you feel your life is being threatened, you should immediately notify security staff and provide the substantiating evidence."
Officials' refusal even to interview the alleged attackers, and their insistence that Johnson must provide documented proof that he was being sexually coerced, left him in despair. To provide the evidence they demanded, he created a letter ostensibly from one of his attackers, reflecting the oral threats he had received.
Earlier this month, TDCJ widely publicized the fact that a grand jury in Wichita Falls, Texas chose not to indict a single prisoner for any of the attacks on Johnson. Johnson was never told of the grand jury investigation and was not asked to testify.
Even though grand jury investigations are supposed to be secret, TDCJ released a statement asserting that an internal investigation, consisting primarily of statements by suspects denying that anyone had sexually coerced Johnson, led jury members to their decision.
Winter called the report a whitewash intended as a cover-up for TDCJ's refusal to investigate for the previous 18 months. At the time Johnson reported the rapes and sexual coercion, TDCJ refused to interview a single suspect, and most of the interviews cited in the internal report were not conducted until long after Johnson was transferred from Allred.
TDCJ's internal investigation also contained numerous examples of misinformation. For example, investigators falsely claimed that Johnson had named a witness to the coercion - who was also a rape victim- as one of the perpetrators. TDCJ further claimed that another witness said that Johnson had invented his accounts of repeated rapes - yet this witness notified the ACLU that TDCJ had falsely attributed this statement to him.
According to a recent report produced for Texas's Safe Prisons Program, Allred is one of the worst facilities for prison rape within TDCJ. In 2001, Human Rights Watch identified Texas as the worst state in the nation for

prison rape in their report, No Escape: Male Rape in U.S. Prisons. Roderick Keith Johnson is represented in his lawsuit, Johnson v. Johnson, by Winter and Craig Cowie of the ACLU's National Prison Project and Austin attorney Edward Tuddenham. TDCJ's pretrial appeal of the trial court's refusal to dismiss the case is currently pending before the 5th Circuit Court of Appeals. For examples of complaints filed by Johnson go to /prison/gen/14651lgl20040226.html Johnson's TDCJ Offender Protection Investigation Forms are available at /prison/gen/14650lgl20040226.html
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web site of the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU. User Agreement | Privacy Statement | FAQs

 
 Home : Prisoners' Rights : General

In Legal First, Appeals Court Says Texas Prison Officials Can Be Sued for Discrimination Based on Sexual Orientation (9/9/2004)

Prisoners' Rights: The ACLU's National Prison Project is the only national litigation program on behalf of prisoners. Since 1972, the NPP has represented more than 100,000 men, women and children. The NPP continues to fight unconstitutional conditions and the "lock 'em up" mentality that prevails in the legislatures. Learn more about our project and take action to protect the rights guaranteed to all Americans.

FOR IMMEDIATE RELEASE
ACLU Hails Important Step Forward in Shocking Prison Sex Slave Case
WASHINGTON, DC- In a legal first, a unanimous federal appeals court has ruled that seven ranking Texas prison officials can be sued for damages due to discrimination based on sexual orientation, the American Civil Liberties Union announced today. The ruling by the Fifth Circuit Court of Appeals came in a lawsuit filed by the ACLU on behalf of a gay man who was repeatedly raped by prison gangs and whose pleas for help were ignored by officials.

Margaret Winter, Associate Director of the ACLU's National Prison Project and an attorney for the former prisoner, Roderick Keith Johnson, applauded the decision, which was issued late yesterday. The decision also upheld the right to proceed in the case under the Eighth Amendment's protection against cruel and unusual punishment.

"I could not be more pleased that we are one step closer to Roderick Johnson having his day in court," said Winter. "Once heard, Mr. Johnson's testimony about the horrifying abuse he endured and the prison staff's deliberate indifference to that abuse will shock Texas citizens and hopefully bring about improvements for all prisoners in similar circumstances."
For 18 months, Johnson was housed at the James A. Allred Unit in Iowa Park, Texas

Roderick Johnson, a Navy veteran serving time for a non-violent crime, has been bought and sold by gangs, raped, abused, and degraded nearly every day.

IN THIS SECTION
General Conditions of Confinement Immigrant Detention Medical Care Mental Health Care Over-Incarceration Restriction of Rights Women in Prison
RELATED INFORMATION
Publications Legal Documents Legislative Documents Resources Fact Sheets Supreme Court Cases Court Cases

where prison gangs bought and sold him as a sexual slave, raping, abusing, and degrading him nearly every day, the ACLU said in legal papers. Johnson filed numerous grievances, letters, and complaints with prison officials and appeared before the unit's classification committee seven separate times asking to be transferred to safe-keeping, protective custody, or another prison, but each time they refused, telling him that he must "fight or fuck." Prison officials moved Johnson out of the Allred Unit and into a wing designated for vulnerable prisoners only after the ACLU intervened on his behalf.
In its brief to the appeals court, the ACLU showed that Johnson had produced ample evidence that Texas prison officials "were well aware of the significant risk that ...[he] would be raped and that they consciously disregarded the risk, arbitrarily denying him protection." Indeed, direct evidence provided by Johnson includes statements by prison officers announcing that they were denying him protection because it was up to Johnson to fight off predators if he did not choose to sexually submit to them and that he should "choose someone to be with" if he wanted protection from rape.
In its unanimous ruling, the appeals court noted the U.S. Supreme Court's 1994 ruling that officials have a duty to protect prisoners from violence at the hands of other prisoners. "[H]aving stripped them of virtually every means to self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course," wrote Justice David H. Souter in Farmer v. Brennan. "Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society."
Attorneys Winter and Craig Cowie of the National Prison Project represented Johnson in his lawsuit, Johnson v. Johnson, before the U.S. Court of Appeals for the 5th Circuit. The case has now been remanded to the U.S. District Court for the Northern District of Texas and the ACLU hopes to proceed to trial shortly.
The ACLU's brief from the Fifth Circuit argument is online at: /prison/conditions/14775lgl20040909.html
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web site of the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU.
User Agreement | Privacy Statement | FAQs

 
 Home : Prisoners' Rights : Conditions of Confinement

Prison Sex Slave Trial Set to Begin in Texas (9/16/2005)

FOR IMMEDIATE RELEASE CONTACT: media@aclu.org Prisoners' Rights:

IN THIS SECTION

The ACLU's National Prison Project is the only national litigation program on behalf of prisoners. Since

WICHITA FALLS, TX- After enduring 18 months in a Texas prison where gangs bought and sold him as a sexual slave, Roderick Johnson will appear in federal district court Monday for the first day of his civil trial against the prison officials who failed to protect him, the American Civil Liberties Union announced today.

General Conditions of Confinement Immigrant Detention Medical Care Mental Health Care

1972, the NPP has

Over-Incarceration

represented more "Roderick Johnson was brutally raped by

than 100,000 men, prison gang members," said Margaret

women and

Winter, Associate Director of the ACLU's

children. The NPP National Prison Project and Johnson's lead

continues to fight attorney. "The devastating horror of the

unconstitutional first rape was multiplied many times over

conditions and the the next 18 months because prison

"lock 'em up"

officials refused to intervene to protect

mentality that prevails in the

him."

Read Roderick

legislatures. Learn Beginning in September 2000, Roderick

more about our

Johnson was housed at the James A.

Johnson's cries for help >>

project and take

Allred Unit in Iowa Park, Texas where

action to protect the prison gangs bought and sold him as a

rights guaranteed to sexual slave, raping, abusing, and

Learn more about the case >>

all Americans.

degrading him nearly every day for 18 RESOURCES (Off-

Restriction of Rights Women in Prison
RELATED INFORMATION
Publications Legal Documents Legislative Documents Resources Fact Sheets Supreme Court Cases Court Cases

months. Johnson filed numerous

site)

complaints with prison officials and

Human Rights Watch:

appeared before the unit's classification Male Rape in U.S.

committee seven separate times asking to Prisons

"Roderick Johnson was brutally raped by

prison gang members," said Margaret

Winter, Associate Director of the ACLU's

National Prison Project and Johnson's lead

attorney. "The devastating horror of the

first rape was multiplied many times over

the next 18 months because prison

officials refused to intervene to protect

him."

Read Roderick

Beginning in September 2000, Roderick Johnson was housed at the James A.

Johnson's cries for help >>

Allred Unit in Iowa Park, Texas where prison gangs bought and sold him as a sexual slave, raping, abusing, and

Learn more about the case >>

degrading him nearly every day for 18 months. Johnson filed numerous complaints with prison officials and appeared before the unit's classification committee seven separate times asking to be transferred to safekeeping, protective

RESOURCES (Offsite) Human Rights Watch: Male Rape in U.S. Prisons

custody, or another prison, but each time they refused, telling him that he must "fight or fuck," according to legal papers

Sexual Violence Reported by Correctional

filed by the ACLU.

Authorities

Prison officials moved Johnson out of the National Prison Rape Allred Unit and into a wing designated for Elimination vulnerable prisoners in April 2002, only Commission after the ACLU intervened on his behalf.
The ACLU lawsuit seeks damages against Stop Prisoner Rape seven Allred officials for ignoring his
pleas for help and failing to protect him against continued sexual
attacks.

Johnson's story is not an isolated case, Winter said. In 2001, Human Rights Watch identified Texas as the worst state in the nation for prison rape. This summer, a Department of Justice publication found that prisoners in Texas reported six times as many allegations of prisoner-on-prisoner sexual violence than in any other state. Gay prisoners in Texas like Johnson (who is no longer in prison) are highly vulnerable to rape and exploitation perpetrated by prison gangs.

The trial in Johnson v. Wathen is set to begin September 19 at the

Federal Courthouse in Wichita Falls, Texas, located at 1000 Lamar Street, before U.S. District Court Judge Barbara M. G. Lynn in courtroom 222. Johnson is represented by Winter and Jeff Monks of the ACLU's National Prison Project, Tim Hoffman of Hoffman, Sheffield & Sauseda in Amarillo and civil rights attorney Edward Tuddenham of Austin.
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web site of the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU.
User Agreement | Privacy Statement | FAQs

 
 Home : Prisoners' Rights : Conditions of Confinement

Roderick Keith Johnson Speaks Out About Verdict in Prison Rape Case (10/19/2005)

Prisoners' Rights: The ACLU's National Prison Project is the only national litigation program on behalf of prisoners. Since 1972, the NPP has represented more than 100,000 men, women and children. The NPP continues to fight unconstitutional conditions and the "lock 'em up" mentality that prevails in the legislatures. Learn more about our project and take action to protect the rights guaranteed to all Americans.

FOR IMMEDIATE RELEASE CONTACT: media@aclu.org
Johnson Says He Will Continue to ""Fight for Victims of Prison Rape""
WICHITA FALLS, TX -- Roderick Keith Johnson, a gay former prisoner who was repeatedly raped and sold as a sex slave by prison gangs, today expressed disappointment in a jury verdict dismissing his civil lawsuit against the prison officials who ignored his pleas for help.
During the federal trial that began September 19, the jury listened to horrifying testimony from prisoners who had witnessed Johnson being forced into sexual acts, while prison officials ignored his screams for help and looked the other way. The jury returned a 10-2 verdict yesterday refusing to hold those prison officials accountable.
Johnson issued the following statement in response to the decision:
""I am disappointed by the jury's decision yesterday to find in favor of the six officials who failed to protect me from continued sexual abuse while I was confined at the Allred Unit. However, I am grateful that I have had the opportunity to tell the world what happened to me. This case was never about money but about justice. Even though I didn't win my case in court, I know the case has accomplished a great deal. Prison rape is a huge problem. This process has opened some eyes to the violence that takes place everyday, and I hope it will encourage others to get

IN THIS SECTION
General Conditions of Confinement Immigrant Detention Medical Care Mental Health Care Over-Incarceration Restriction of Rights Women in Prison
RELATED INFORMATION
Publications Legal Documents Legislative Documents Resources Fact Sheets Supreme Court Cases Court Cases

involved in doing something about it.""
""I would like to thank the American Civil Liberties Union and its National Prison Project for supporting me and for their commitment to helping eliminate rape in prison. I know they will continue to fight to protect others facing similar abuse. I pray that more organizations will join our struggle.""
""For me, I will continue to fight for other victims of prison rape, struggle to raise awareness of the problems they confront and find solutions for protecting them. There are many silent victims who have not received the care and attention that they deserve. I will also continue to be involved in advocacy campaigns on behalf of incarcerated people and those leaving prison, and to promote projects that help former prisoners returning to their communities to make the transition.""
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web site of the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU.
User Agreement | Privacy Statement | FAQs

 
 385 F.3d 503 (2004)
Roderick Keith JOHNSON, Plaintiff-Appellee, v.
Gary JOHNSON, et al., Defendants, Gary Johnson; Robert R. Treon, Senior Warden Allred Unit; Richard E. Wathen; James D.
Mooneyham, Assistant Warden Allred Unit; Tommy Norwood, Major; Kenneth Bright, Major; Tracy Kuyava, Administrative Technician Unit Classification Committee; Tina Vitolo, Administrative Technician Unit Classification Committee; Vikki D. Wright, Director, Classification; Joseph Boyle, Captain; Jimmy Bowman, Major; Kenneth Willingham, Sergeant; Oscar Paul, Lieutenant; Onessimo Ranjel, Lieutenant; David Taylor, Lieutenant,
Defendants-Appellants.
Nos. 03-10455, 03-10505 and 03-10722.
United States Court of Appeals, Fifth Circuit.
September 8, 2004.
50145678901 *504 *505 *506 *507 *508 *509 *510 *511 Margaret Winter (argued), Amy Fettig, Craig Allen Cowie (argued), Am. Civ. Liberties Union, Nat. Prison Project, Washington, DC, Edward J. Tuddenham, Austin, TX, for PlaintiffAppellee.
512 *512 Celamaine Cunniff (argued) and Matthew Tepper (argued), Asst. Atty. Gens., Austin, TX, for DefendantsAppellants.
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.
KING, Chief Judge:
This is a § 1983 suit brought by a former Texas prisoner against fifteen prison officials. According to the plaintiff's version of events, which is disputed by the defendants, he suffered through a horrific eighteen-month period of incarceration during which the defendant prison officials failed to protect him from prison gangs who repeatedly raped him and bought and sold him as a sexual slave. His complaint asserted violations of the Eighth Amendment and the Equal Protection Clause. The district court denied the defendants' motions for judgment on the pleadings and for summary judgment, and they now bring these interlocutory appeals. The defendants argue that the plaintiff largely failed to exhaust his administrative remedies and that any exhausted claims are barred by qualified immunity. We conclude that the majority, but not all, of the plaintiff's claims must be dismissed on grounds of failure to exhaust or qualified immunity. We therefore affirm in part, reverse in part, and remand.
I. GENERAL BACKGROUND
Roderick Johnson entered the Texas prison system in January 2000 after the revocation of a sentence of probation that he had received for a nonviolent burglary. He was transferred to the system's Allred Unit on September 6, 2000. Upon arriving at Allred, Johnson met with a three-person Unit Classification Committee (UCC) for a determination of his initial housing status. Prison officials knew that Johnson was homosexual and possessed an effeminate manner. Johnson told the UCC that he had been housed in "safekeeping" before his transfer.[1] Safekeeping is a housing status that separates vulnerable individuals from more aggressive offenders. According to Texas Department of Criminal Justice (TDCJ) regulations, safekeeping is indicated when an inmate is at risk of victimization, has enemies in the population, has a history of homosexuality, or possesses other characteristics that mark the offender as vulnerable to predation. But according to Johnson, one of the members of the UCC told him that "[w]e don't protect punks on this farm" 0907 "punk" being prison slang for a

homosexual man. Johnson was put in the general population. He was raped by other inmates almost immediately.
Johnson's complaint and affidavit describe a horrific series of events that allegedly occurred over the next eighteen months at Allred. In October 2000, not long after his arrival in the general population, a prison gang member named Hernandez asserted "ownership" over Johnson, forcing Johnson to become his sexual servant. Johnson informed Assistant Warden Mooneyham and Sergeant Willingham of the rapes and requested medical 513 attention, but they told him that care was *513 available only for emergencies and that he should file a written request for medical attention. By November, Hernandez began to rent Johnson out to perform coerced sexual favors for other inmates. Johnson believed that he would be severely beaten or killed if he refused. Hernandez beat Johnson on November 30, and medical personnel documented bruising and swelling on Johnson's face. At several times over the following months, Johnson was moved to different buildings at Allred and was raped and owned by different prison gangs.
Johnson sought help from guards, filed numerous "life-endangerment" forms, and wrote letters to prison administrators. Prison officers who investigated Johnson's complaints generally determined that they could not be corroborated; the officers usually did not interview any of the inmates mentioned in Johnson's complaints, purportedly out of a concern to protect the "integrity of the investigation" or to protect Johnson. Johnson's lifeendangerment forms triggered a number of appearances before UCCs composed of various prison officials and employees. Johnson asked the UCCs to place him in safekeeping status, place him in protective custody (which entails a significant loss of privileges), or transfer him to a different prison on multiple occasions: December 13, 2000; February 14, 2001; February 21, 2001; March 16, 2001; September 5, 2001; December 13, 2001; and January 17, 2002. Each time the committee refused Johnson's requests, ostensibly because there was no concrete evidence of victimization. According to Johnson, the members of the committees repeatedly told him that he either had to fight off his attackers or submit to being used for sex. The comments allegedly made by the UCC members, which they dispute, include statements such as: "You need to get down there and fight or get you a man," "There's no reason why Black punks can't fight and survive in general population if they don't want to f***," and remarks to the effect that, since Johnson was homosexual, he probably liked the sexual assaults he was experiencing.
In addition to writing letters to administrators and filing life-endangerment notices, Johnson also used the TDCJ's formal two-step administrative grievance process on several occasions. The grievances described his victimization and his repeated unsuccessful requests for protection or a transfer to safekeeping. The grievances were denied, generally on the basis that unit officials or UCC committees had already conducted proper investigations and had found no substantiating evidence.[2]
Johnson eventually contacted the American Civil Liberties Union. Shortly thereafter, Johnson went before the UCC again, on April 1, 2002, and was approved for a transfer to TDCJ's Michael Unit. During his December 2002 deposition, Johnson testified that he had not suffered attacks at the Michael Unit, where he was housed in safekeeping.
Johnson filed suit in the district court in April 2002 against over a dozen TDCJ officials and employees. The defendants comprise supervisory officials such as TDCJ Executive Director Gary Johnson,[3] Senior Warden Treon, Assistant Warden Wathen, Assistant Warden Mooneyham, and Director of Classification Wright; guards 514 who failed to protect Johnson on *514 discrete occasions (namely, Lieutenant Paul[4] and Sergeant Willingham); and many of the members of the various UCCs that had denied Johnson protection (namely, Major Norwood, Major Bright, UCC Administrative Technician Kuyava, UCC Administrative Technician Vitolo, Captain Boyle, Major Bowman, Lieutenant Ranjel, and Lieutenant Taylor).[5] The lengthy complaint asserted three causes of action: (1) failure to protect Johnson from harm, in violation of the Eighth Amendment, (2) a race-based Equal Protection claim charging that officials denied him protection because he is black, and (3) a sexual-orientation-based Equal Protection claim predicated on the allegation that the defendants denied Johnson protection out of antihomosexual animus. The suit sought injunctive relief and damages. The defendants answered Johnson's complaint with a blanket denial of almost all of its allegations.

In July 2002, Executive Director Johnson, Treon, and Wright moved for judgment on the pleadings on Johnson's Equal Protection claims (but not the Eighth Amendment claim). The plaintiff did not oppose this motion, and the district court later granted it.
In November 2002, all of the defendants filed a motion to dismiss the case for failure to exhaust administrative remedies, and, at the same time, all of the defendants who were still facing Equal Protection claims (i.e., all defendants but Executive Director Johnson, Treon, and Wright) filed a motion for judgment on the pleadings with regard to the Equal Protection claims.[6] The motion for judgment on the pleadings asserted, inter alia, an entitlement to qualified immunity on the ground that Johnson had not alleged violations of rights that were clearly established.
While those motions were still pending, the defendants also filed, in January 2003, a motion for summary judgment on the Eighth Amendment claims, again asserting qualified immunity among other grounds. The motion also reasserted the defendants' arguments concerning Johnson's Equal Protection claims.
On April 9, 2003, the district court denied the defendants' January 2003 motion for summary judgment in an order stating that fact issues remained regarding whether the defendants acted with deliberate indifference to a substantial risk to Johnson's safety; the court further held that the factual disputes precluded a ruling on qualified immunity on the current record. The court's order also rejected the defendants' exhaustion argument, which they had re-urged in their motion for summary judgment.
The defendants then requested a ruling on the still-pending November 2002 motion for judgment on the pleadings, which largely concerned the Equal Protection claims. On April 17, 2003, the court denied the motion 515 for judgment on the pleadings, concluding that Johnson's pleadings *515 adequately stated a claim. The order also denied as moot the motion to dismiss for failure to exhaust, as the court's previous order had rejected that argument. Finally, the order denied as moot the request for qualified immunity, the court having already determined that material fact issues required trial.
The defendants filed a notice of appeal from the April 9 order denying summary judgment, and this became appeal No. 03-10455. Later, they filed a notice of appeal from the April 17 order denying the motion for judgment on the pleadings 0907 docketed as appeal No. 03-10505. Both interlocutory appeals are predicated on the rule that denials of qualified immunity based on issues of law are immediately appealable under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The district court later certified, and this court granted leave to pursue, an interlocutory appeal of the district court's ruling that Johnson had exhausted his administrative remedies 0907 appeal No. 03-10722. See 28 U.S.C. § 1292(b).
Johnson has filed motions to dismiss Nos. 03-10505 and 03-10455 for want of appellate jurisdiction.
On December 19, 2003, Johnson was released from prison into mandatory supervision at a halfway house. The defendants have argued, and the plaintiff conceded at oral argument, that Johnson's claims for injunctive relief and his claims against the defendants in their official capacities have been rendered moot, leaving only his claims against the defendants in their individual capacities for damages.
II. EXHAUSTION
Under the Prison Litigation Reform Act (PLRA), prisoners are required to exhaust administrative remedies before filing suit: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2000). The defendants argue that Johnson's grievances were insufficiently detailed, untimely, or both, thus failing to exhaust his administrative remedies. We review de novo the district court's denial of the motion to dismiss for failure to exhaust. Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.2001).
The Texas prison system has developed a two-step formal grievance process. The Step 1 grievance, which must be filed within fifteen days of the complained-of incident, is handled within the prisoner's facility. After an adverse

decision at Step 1, the prisoner has ten days to file a Step 2 grievance, which is handled at the state level. This court has previously held that a prisoner must pursue a grievance through both steps for it to be considered exhausted. See Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001).
The record in this case includes portions of the guidelines that TDCJ provides prisoners regarding how to file grievances. Among other things, the rules direct inmates to write "briefly and clearly" but also to "be very specific about your grievance or your problem." They state that a grievance should contain facts, not legal words or conclusions. They further direct the prisoner to "[t]ell us what action you want us to take to resolve your grievance or problem," but they specifically state that a prisoner should "not ask us to take disciplinary action against employees." The guidelines state that an inmate should not "submit repetitive grievances on the same issue." 516 Finally, they warn that an inmate is subject to sanctions for abusing *516 the grievance process, such as by making "excessive, frivolous and vexatious use of the procedure."
In addition to writing many administrative life-endangerment notices and letters, Johnson twice filed formal grievances on TDCJ-provided standard forms and pursued them through the two-step process just described. In particular, he filed Step 1 grievances on March 18, 2001 and December 30, 2001, both times appealing the matter to Step 2 after being denied at Step 1. (He filed Step 1 grievances on a few other occasions as well, but he did not fully exhaust them by proceeding through Step 2.) Johnson's complaint included an allegation that he had exhausted available administrative remedies.[7]
Section 1997e(a) does not say how specific a prisoner's administrative grievances must be, and this court has so far given relatively little guidance regarding what a prisoner must say in his grievances to exhaust his claims properly. As a general matter, courts typically use a standard according to which a grievance should give prison officials "fair notice" of the problem that will form the basis of the prisoner's suit. See, e.g., Burton v. Jones, 321 F.3d 569, 575 (6th Cir.2003). The parties agree on that generalized formulation but, unsurprisingly, they differ on how much detail is required in order to provide notice of the prisoner's problem.
In deciding how much detail is required in a given case, we believe that a court must interpret the exhaustion requirement in light of its purposes, which include the goal of giving officials "time and opportunity to address 517 complaints internally," Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). *517 Thus, a grievance should be considered sufficient to the extent that the grievance gives officials a fair opportunity to address the problem that will later form the basis of the lawsuit. Further, as a practical matter, the amount of information necessary will likely depend to some degree on the type of problem about which the inmate is complaining. If an inmate claims that a guard acted improperly, we can assume that the administrators responding to the grievance would want to know 0907 and a prisoner could ordinarily be expected to provide 0907 details regarding who was involved and when the incident occurred, or at least other available information about the incident that would permit an investigation of the matter. In contrast, a grievance in which an inmate says that his cell is habitually infested with vermin, or that the prices in the commissary are too high, could adequately alert administrators to the problem whether or not the grievance names anyone. Compare Curry v. Scott, 249 F.3d 493, 505 (6th Cir.2001) (holding that a grievance specifically complaining of a beating at the hands of one guard did not suffice to exhaust a failure-to-protect claim against another guard, not mentioned in the grievance, who stood by and watched), with Brown v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir.2000) (holding that a prisoner who knew only that he had not received prescribed medical equipment had exhausted his claim, notwithstanding that his grievance did not name anyone).
Beyond those general practical considerations, the prison system's own rules regarding grievances provide both inmates and the courts with more specific guidance. Since prisoners are generally required to follow the procedures adopted by the state prison system, the specificity requirement should be interpreted in light of the grievance rules of the particular prison system, here the TDCJ. See Strong v. David, 297 F.3d 646, 649 (7th Cir.2002) ("[G]rievances must contain the sort of information that the administrative system requires.").[8] Thus, in deciding whether the grievance gives officials an opportunity to address the problem, we should consider whether the grievance provides the type of information that the TDCJ rules request.

The defendants raise three distinct types of exhaustion arguments on appeal: They argue that Johnson did not exhaust (1) certain of his legal theories (2) regarding certain episodes (3) against certain defendants. We consider each in turn, and we conclude that many of Johnson's claims are unexhausted.
A. Which theories?
Johnson's suit contains Eighth Amendment claims, race-based Equal Protection claims, and claims for failure to protect because of sexual orientation under the Equal Protection Clause. We begin with the question of which of those three categories of claims were exhausted.
As a general matter, there is authority from several courts to the effect that a prisoner, who is of course typically uncounselled, need not present legal theories in his grievances. See, e.g., Burton, 321 F.3d at 575 ("[W]e would not require a prisoner's grievance to allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory."); see also Strong, 297 F.3d at 650 (concluding that a prisoner need not 518 present legal theories, at least as long as prison *518 rules do not require that). We agree. As we discussed above, the purpose of the exhaustion requirement is to give prison administrators an opportunity to address a problem, and they can do this whether or not the prisoner tells them the constitutional provisions that the problem implicates. Further, TDCJ rules specifically instruct inmates to provide facts, not legal terminology.
Johnson's grievances repeatedly refer to the defendants' failure to protect him from assaults and (though this was unnecessary) specifically name the Eighth Amendment. The defendants admit that the grievances exhausted Eighth Amendment claims, at least against a few defendants regarding a few instances 0907 matters that we will discuss later. They also argue, however, that the grievances do not exhaust any of Johnson's two types of Equal Protection claims against any defendant.
Race. As to race discrimination, the defendants correctly observe that Johnson's grievances nowhere state that he was suffering racial discrimination. Indeed, his grievances do not mention his race at all. Even though Johnson need not present a full-fledged legal theory in his grievance, his grievances must alert prison officials to a problem and give them an opportunity to address it. His grievances gave them notice that there was a problem with protection from sexual assaults, but we do not think that they can be read to give notice that there was a race-related problem. See Medera v. Griffin, No. 02 C 1064, 2003 WL 132496, at *11 (N.D.Ill. Jan. 14, 2003) (holding that grievances regarding prison conditions that allegedly violated the Eighth Amendment did not exhaust an Equal Protection claim where the grievances contained "no mention whatsoever of the plaintiff's heritage, nor any references to racial slurs").[9]
Sexual orientation. Johnson's grievances mention his sexual orientation many times. For the most part, the references to Johnson's sexuality are intertwined with Johnson's complaints about the officials' failure to protect him from assaults. The defendants contend that this does not necessarily indicate that Johnson was complaining that the officials were purposefully discriminating against him, by refusing to protect him, because of his homosexuality. The grievances are certainly not as explicit as one would expect from a lawyer, but as we stated above a prisoner need not provide all of the elements of a constitutional claim as long as the grievance at least reasonably indicates a problem. Further, Johnson's grievances do also suggest a complaint that the officials considered Johnson's sexuality: Johnson writes that members of the UCC responded to his requests for protection from rape by saying "that they feel that because I'm a homosexual I'm enticing [illegible]." In addition, a reasonable reader could infer that the officials would not tell a heterosexual inmate that, instead of getting protection from victimization, he should "choose someone to be with." Under the circumstances, we conclude that 519 Johnson's grievances were sufficient *519 to give prison officials fair notice that there might have been a sexualorientation-related aspect to Johnson's problem.
B. Which incidents?
Having decided which general theories Johnson may pursue, we turn next to examining which events he has exhausted.

Johnson's claim is that prison officials failed to protect him, over the course of some eighteen months, from nearconstant sexual assault. Johnson's complaint, and his summary-judgment evidence, covers the repeated abuses in uncomfortable detail and lists many unsuccessful encounters with prison officials. These include face-to-face encounters with several guards who allegedly failed to take steps to protect Johnson on various occasions, correspondence with supervisory officials, and meetings with UCC committees. The defendants contend that the only exhausted claims in this case are those against two defendants, Wathen and Kuyava, as regards their involvement in the March 16, 2001 UCC. They reason that since TDCJ rules require that a Step 1 grievance be filed within fifteen days of the complained-of event, a grievance can only exhaust claims that relate to matters that occurred within the preceding fifteen days. Therefore, Johnson's March 18 Step 1 grievance could exhaust claims arising from the March 16, 2001 UCC, but it could not exhaust any claims that arise from conduct before March 2001. Johnson's December 2001 Step 1 grievance, which was also appealed through Step 2, failed to exhaust any claims, continue the defendants, because no UCC meeting occurred in the fifteen days preceding the filing of that Step 1 grievance.
Johnson did not use the formal grievance process 0907 or, rather, he did not properly use it by both filing a Step 1 grievance and appealing the grievance to Step2 0907 until his March 18, 2001 Step 1 grievance. We agree with the defendants that Johnson has not exhausted any claims that arise from events that occurred more than fifteen days before this grievance. While it is true that the conditions that Johnson suffered both before and after the grievance were of the same general character, to permit the March 2001 grievance to reach back to events that transpired up to six months earlier would effectively negate the state's fifteen-day rule and frustrate the prison system's legitimate interest in investigating complaints while they are still fresh. That a condition continues does not excuse the failure to file a grievance earlier. Accordingly, we hold that Johnson's grievances do not permit him to pursue claims regarding conduct that occurred before March 2001; in particular, this means that he has not exhausted claims related to the UCC meetings of September 6, 2000, December 13, 2000, February 14, 2001, and February 21, 2001; nor has he exhausted claims regarding his encounters with Willingham, which all occurred before March 2001.[10]
Having concluded that Johnson's March 2001 grievance did not exhaust claims that involve events before the March 2001 UCC meeting, we next consider whether Johnson has exhausted claims related to conduct that occurred after the March 2001 grievance. The defendants contend that no such claims were exhausted because none of the three subsequent UCC meetings at which Johnson was denied protection 0907 which occurred in 520 September 2001, December 2001, and January 2002 0907 was *520 followed within fifteen days by a Step 1 grievance. In particular, Johnson's December 30, 2001 Step 1 grievance was a few days too late to reach the December 2001 UCC meeting, which was held on the 13th.
We do not agree with the defendants' argument that Johnson has not exhausted any claims that arise from events later than the March 16, 2001 UCC meeting. The March 2001 grievance alerted prison officials to the fact that Johnson was being subjected to repeated assaults and was not receiving any protection from the system, in particular a transfer to safekeeping status:
I am writing to state that I am a homosexual who and [sic] is still being assaulted sexually, physically, mentally. I have brought this issue up to unit administration a number of times and have failed to be moved to a safe location that houses other homosexuals.... Get me off this building or this unit before I am assaulted again.... I have used all the proper channels to resolve this problem but they simply refuse to listen. Please get the warden or U.C.C. to move me off this building.... They have failed to provide me safety.
The grievance investigation worksheet corresponding to this Step 1 grievance summarizes the issue as "being assaulted," and the administration responded to Johnson's grievance by writing that a UCC had already been convened in response to Johnson's life-endangerment notices and had found his claims insufficient. (That is, administrators did not take Johnson's grievance as a complaint about only the prior UCC per se,[11] but rather they viewed the UCC as part of their response to the problem of being attacked.) After the officials rejected Johnson's grievance, the same condition of confinement of which he had been complaining continued.

After one full trip through the two-step review process, Johnson later filed the December 30, 2001 Step 1 grievance, which, according to the defendants, exhausted nothing because the most recent prior UCC was on December 13, more than fifteen days earlier. In this grievance Johnson reports that he is still "constantly" being threatened and harassed, that he is "subject to being bought and sold by gang members," and that he has not been moved despite asking the staff and the UCCs for help "numerous times." Notably, the prison administration did not reject this grievance as being an untimely attempt to grieve the results of the December 13 UCC. Cf. Gates v. Cook, 376 F.3d 323, 331 & n. 6 (5th Cir.2004) (holding that prison officials could not argue that a prisoner's grievance failed to comply with procedural rules when the officials had looked past the purported technical defect and rejected the grievance for substantive reasons); accord Riccardo v. Rausch, 375 F.3d 521, 523-24 (7th Cir. 2004). Rather, their internal documents portrayed this grievance as another complaint about being attacked, and the administration rejected it on the ground that they had already answered Johnson's complaints about safety in their response to a prior Step 1 grievance that was filed shortly before the December 13 UCC meeting. Thus, the prison administration itself evidently did not understand Johnson's grievance as a complaint about the December 13 UCC meeting in particular, but instead as a complaint about a continued lack 521 of *521 protection.[12]
As a practical matter, Johnson could not have been expected to file a new grievance every fifteen days, or each time he was assaulted (which, according to him, was virtually every day), for the entire period during which he remained unprotected in the general population. Persuasive authority holds that, in such circumstances, prisoners need not continue to file grievances about the same issue. See Sulton v. Wright, 265 F.Supp.2d 292, 295-99 (S.D.N.Y.2003) (holding that two grievances filed during the course of a several-year period of repeated delays in treating an inmate's injured knee sufficed to exhaust the entire course of conduct, despite the prison system's rule that grievances must be filed within fourteen days of an occurrence); Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis.2000) (holding that when inmates have filed a grievance regarding a prison policy, they need not file grievances regarding subsequent incidents in which the policy is applied); cf. Lewis v. Washington, 197 F.R.D. 611, 614 (N.D.Ill.2000) (holding that inmates complaining about various aspects of the conditions in their housing unit need only grieve their placement in that unit, not each of the various alleged unconstitutional conditions present in the unit; "[o]therwise the defendants could obstruct legal remedies to unconstitutional actions by subdividing the grievances...."). Further, the TDCJ rules specifically direct prisoners not to file repetitive grievances about the same issue and hold out the threat of sanctions for excessive use of the grievance process. It would make little sense to require a prisoner being subjected to a frigid cell to continue to file grievances stating that the cell remains frigid, and the same principle applies here. Cf. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (referring to "the temperature he is subjected to in his cell, and the protection he is afforded against other inmates" both as "conditions of confinement" subject to the Eighth Amendment).
Given the circumstances of this case and the nature of Johnson's complaint, we do not believe that he was required to file repeated grievances reminding the prison officials that he remained subject to attack in the general population. Johnson's grievances were sufficient to exhaust claims that arose from the same continuing failure to protect him from sexual assault. Thus, we disagree with the defendants' suggestion that he has failed to exhaust any claims relating to the September 2001, December 2001, and January 2002 UCC meetings.[13]
522 *522 C. Which defendants?
Johnson has sued fifteen prison officials, but the defendants contend that he has not exhausted his claims against many of them. In particular, they argue that a claim against a person has been exhausted only if that person was identified in the prisoner's Step 1 grievance.
We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation. Cf. Brown, 212 F.3d at 1207-10 (rejecting a rule that a prisoner must always name defendants in his grievance). But, at the same time, the grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit, and for many

types of problems this will often require, as a practical matter, that the prisoner's grievance identify individuals who are connected with the problem.
Non-UCC defendants. Two of the defendants in this case, Paul and Willingham, are prison guards who are accused of failing to protect Johnson on a few discrete occasions. The character of Johnson's formal grievances is that he is frequently being assaulted and has repeatedly but unsuccessfully sought a change in housing status through the established administrative channels. Nowhere does he mention or describe Paul or Willingham. Johnson's grievances would alert administrators particularly to problems regarding the prison's housing and classification practices, but we do not think that they can fairly be read to alert them to, or give them an opportunity to remedy, the discrete conduct that forms the basis of Johnson's claims against these two officers, which is of a different character. (In addition, as observed above, all of the conduct concerning Willingham occurred before March 2001, which is an independent reason to hold it unexhausted.)
Johnson has also sued three supervisory-level officials who never sat on a UCC: Treon, Wright, and Executive Director Johnson. Johnson specifically named Treon and Wright, but only in Step 2 grievances. The defendants contend that this is insufficient, for TDCJ rules instruct inmates not to "bring up new grievance issues on appeal." But cf. Burton, 321 F.3d at 574 (permitting a prisoner to provide "additional factual detail" at appellate stages of grievance process). Johnson's grievances did not mention Executive Director Johnson, but Johnson says that there is no need to mention the Executive Director. See Brown, 212 F.3d at 1209 (observing that "[e]veryone involved in the grievance process knows who the warden and [state prison] commissioner are"). We need not struggle with these matters here, however, because we determine in Part III of our opinion that these three supervisory defendants are clearly entitled to dismissal based on qualified immunity.[14]
UCC defendants. We held above that Johnson had not exhausted any claims related to UCC meetings before March 2001. We now ask whether, regarding the exhausted UCC meetings, Johnson's grievances adequately identified the relevant defendants.
523 *523 The defendants conceded at oral argument, and we agree, that a grievance can sufficiently identify a person even if it does not provide an actual name; functional descriptions and the like 0907 e.g., a reference to "the guards in the shower room" on a certain date 0907 would suffice. Cf. id. at 1209-10 & n. 4 (noting prison administrators' superior access to personnel information and records). As we have already said, Johnson's grievances repeatedly refer to the UCC committees and their failure to believe his pleas and take measures to protect him. This was adequate to put the prison administrators on notice that members of the UCCs were connected, indeed most closely connected, with Johnson's problem.
D. Summary
Drawing together the threads of the three arguments considered above, we conclude that many of Johnson's claims were not exhausted and should have been dismissed. All of his race-based Equal Protection claims are unexhausted, as are all claims against defendants Paul and Willingham. So too are all claims related to all UCC meetings before the March 2001 meeting; in particular, Johnson may not now pursue claims against Bright and Kuyava as regards the September 6, 2000 UCC; Mooneyham and Vitolo as regards the December 13, 2000 UCC; Bowman, Boyle, and Kuyava as regards the February 14, 2001 UCC; and Vitolo and Wathen as regards the February 21, 2001 UCC.
The claims that are exhausted are Johnson's Eighth Amendment claims and his claims for failure to protect because of sexual orientation under the Equal Protection Clause against Wathen and Kuyava as regards the March 16, 2001 UCC; Wathen as regards the September 5, 2001 UCC; Bowman, Kuyava, and Ranjel as regards the December 13, 2001 UCC; and Norwood, Vitolo, and Taylor as regards the January 17, 2002 UCC.[15]
Finally, we find it unnecessary to reach a decision on exhaustion regarding the claims against Executive Director Johnson, Treon, and Wright.

III. EIGHTH AMENDMENT CLAIMS
The defendants also appeal, in No. 03-10455, the district court's denial of their motion for summary judgment on Johnson's Eighth Amendment claims. Of course, in accordance with our rulings above, we need only consider those claims that Johnson exhausted.
A. Appellate jurisdiction in No. 03-10455
We begin by noting that Johnson has filed a motion to dismiss No. 03-10455 for want of appellate jurisdiction. Although a public official claiming qualified immunity can as a general matter immediately appeal a denial of summary judgment, see Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), we lack interlocutory jurisdiction to review the district court's conclusion that the plaintiff has created a genuine issue of fact as to some matter. See Johnson v. Jones, 515 U.S. 304, 313, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Johnson points out that the district court's order denying summary judgment specifically stated that genuine disputes of material fact existed that precluded a ruling on the immunity defense.
524 *524 As the Supreme Court explained in Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), Johnson does not mean that there is no interlocutory appellate jurisdiction whenever the district court's order denying summary judgment states that fact questions remain. Rather, Johnson means only that the district court's ruling cannot be appealed to the extent that the official seeks to challenge the district court's determinations regarding the sufficiency of the summary-judgment record. Id. at 313, 116 S.Ct. 834. "Johnson permits [a defendant official] to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of `objective legal reasonableness.'" Id. Yet while the appeal will not be dismissed, we are nonetheless required to limit our review along the lines described in Johnson and Behrens. That is, we may not consider any of the defendants' arguments that challenge the district court's assessment that certain facts are sufficiently supported in the summary-judgment record. This turns out to be an important limitation in this case, as much (though not all) of the defendants' argument asks us to contradict one of the district court's determinations regarding the sufficiency of the evidence.
B. Analysis
1. Principles
The Supreme Court formally recognized and described the Eighth Amendment 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 part of the penalty that criminal offenders pay for their offenses against society.
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 harm" and that the prison officials acted with "deliberate indifference" to the inmate's safety. Id. at 834, 114 S.Ct. 1970. An official is deliberately indifferent when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. 1970. 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, 114 S.Ct. 1970. Finally 0907 and significantly for purposes of this case 0907 there is no

liability if the official "responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844, 114 S.Ct. 1970.
The defendants are entitled to qualified immunity unless their conduct was not only illegal but also violated clearly established law such that their behavior was objectively unreasonable. To be "clearly established" for purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 525 97 L.Ed.2d 523 (1987). The law can be clearly established even without prior *525 cases that are on all fours with the present case, "so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted). Of course, the defendant's conduct cannot constitute a violation of clearly established law if, on the plaintiff's version of the facts, there is no violation at all. We therefore initially ask whether the challenged conduct actually presents a violation of federal law. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).
With the necessary qualification that we may not in this appeal review the district court's conclusions that genuine issues of fact remain, see supra Part III.A, we exercise de novo review over the district court's legal ruling that, on the set of facts that it assumed, the defendants are not entitled to qualified immunity. See Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir.1999).
2. Application
Most of the defendants' brief in No. 03-10455 is devoted to showing that Johnson "failed to create a fact question over whether any [defendant's] conduct violated Johnson's constitutional rights or whether any [defendant's] conduct was objectively unreasonable." In particular, they repeatedly seek to demonstrate that, based on the information before them when they acted, either they did not realize the danger Johnson faced or they had reason to disbelieve Johnson's complaints of repeated rape and abuse. See Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (explaining that prison officials can try to prove that they "did not know of the underlying facts" or "believed (albeit unsoundly) that the risk ... was insubstantial or nonexistent"). That particular argument, whether sound or not, is beyond the purview of this appeal. The Supreme Court expressly stated in Farmer that "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact." Id. at 842, 114 S.Ct. 1970 (emphasis added). The district court's April 9 order, while less detailed than ideal, clearly stated that there remained a fact question as to the defendants' knowledge: "Whether any Defendant had the requisite knowledge of a substantial risk of harm is a question of material fact that [this] Court cannot resolve on the current record." As explained earlier, we lack jurisdiction to review the district court's assessment that a genuine issue of fact exists as to some matter, and therefore we cannot look behind the ruling that Johnson presented sufficient evidence for a fact-finder to conclude that the defendants knew of the risk. See Smith v. Brenoettsy, 158 F.3d 908, 913 (5th Cir.1998) (dismissing an interlocutory appeal where there was a factual dispute regarding whether defendant prison officials were aware of the danger to the inmate's safety). Accordingly, we must reject this aspect of the defendants' argument on appeal.
Nonetheless, our inability to second-guess the district court's conclusion that there existed a fact issue regarding the defendants' awareness of the risk does not end our inquiry. Under 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. 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." 511 U.S. at 844, 114 S.Ct. 1970. Although the district court's 526 opinion in this case clearly stated that there were *526 fact issues regarding the defendants' knowledge of the risk, the opinion did not directly address the material fact issues (if any) that existed with respect to how the defendants responded to the risk. When the district court fails to set forth carefully the factual disputes that preclude summary judgment, the Supreme Court has recognized that "a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, 515 U.S. at 319, 115 S.Ct. 2151. Even assuming that all of the defendants knew of the substantial risk to Johnson's safety, there would be no Eighth Amendment violation if the undisputed facts in the record demonstrated that they responded reasonably. Moreover, they would be entitled to

qualified immunity unless clearly established law showed that their response was insufficient. Accordingly, we must consider whether some of the defendants might be entitled to qualified immunity on those grounds.
Non-UCC defendants. We concluded above that all claims against non-UCC defendants Paul and Willingham were unexhausted. We pretermitted deciding the exhaustion issue as regards Executive Director Johnson, Treon, and Wright in favor of ruling on qualified immunity, to which we now turn. In addition to discharging their usual duties of overseeing and reviewing those prison operations for which they were responsible, these supervisory officials had notice of Johnson's plight through various letters and life-endangerment forms. Like all prison officials, these supervisory defendants have a duty to take reasonable measures to protect inmates. See Farmer, 511 U.S. at 832, 114 S.Ct. 1970. Yet given the size of the operation that they oversee, they cannot be expected to intervene personally in response to every inmate letter they receive. The record in this case shows that they responded to Johnson's complaints by referring the matter for further investigation or taking similar administrative steps. This was a reasonable discharge of their duty to protect the inmates in their care. Given that neither the Supreme Court nor this court has delineated the contours of what supervisory officials must do on pain of personal liability, their conduct did not violate clearly established law of which reasonable officers should have known. Therefore, they are entitled to qualified immunity.
UCC defendants. We held in Part II that Johnson had not exhausted some of his claims arising from certain UCC meetings but that he had exhausted claims relating to the September 2001, December 2001, and January 2002 UCC meetings (in addition to the March 2001 meeting, which the defendants concede was exhausted). We now consider whether the defendants involved in those meetings are nonetheless entitled to qualified immunity.
Certain UCCs responded to Johnson's claims by taking action such as ordering further investigation or separating Johnson from a particular inmate who had been threatening him. Those responses were unavailing, but they may well have been reasonable methods of addressing the risk that Johnson faced. See id. at 844, 114 S.Ct. 1970 (observing that officials are not liable if they take reasonable measures, "even if the harm ultimately was not averted"). The most diligent prison administrators cannot guarantee complete safety. But unlike the UCCs that at least took some (unsuccessful) measures to protect Johnson, the particular UCC committees that we are now considering 0907 March 2001, September 2001, December 2001, and January 2002 0907 did nothing in 527 response to Johnson's claims except *527 (according to Johnson) tell him to fight off his attackers, despite the committee members' awareness (which awareness we must assume in this appeal) of the substantial risk that Johnson faced. 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. See id. at 832-33, 114 S.Ct. 1970 (explaining that jailers must "take reasonable measures to guarantee the safety of the inmates" and "are not free to let the state of nature take its course" (internal quotation marks and citation omitted)). (And Farmer itself is factually similar to today's case in that it involved an effeminate prisoner who was raped after he was put in the general prison population. Id. at 829-30, 114 S.Ct. 1970.) 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. Moreover, although the defendants contend that no single person acting alone could have granted Johnson's requests 0907 the UCC makes recommendations to the state classification authority by majority vote of its three members, so nobody in particular is responsible, they say 0907 that does not transform this deliberately indifferent failure to take any action into a reasonable method of discharging their duty to protect the prisoners in their care. Accordingly, we affirm the district court's denial of qualified immunity to Wathen and Kuyava as regards the March 16, 2001 UCC; Wathen as regards the September 5, 2001 UCC; Bowman, Kuyava, and Ranjel as regards the December 13, 2001 UCC; and Norwood, Vitolo, and Taylor as regards the January 17, 2002 UCC.[16]
IV. EQUAL PROTECTION CLAIMS
Johnson relinquished Equal Protection claims against Executive Director Johnson, Treon, Wright, Mooneyham, Willingham, and Paul. After further subtracting claims that we deemed unexhausted in Part II, we are left with

Johnson's claims for failure to protect because of sexual orientation against the participants in the March 2001, September 2001, December 2001, and January 2002 UCCs.
A. Appellate jurisdiction
Johnson has also filed a motion to dismiss No. 03-10505, the defendants' appeal from the district court's denial of judgment on the pleadings. The defendants moved for judgment on the pleadings in November 2002 and, while that motion was still pending, moved for summary judgment in January 2003. The first motion largely involved Equal Protection claims, while the second addressed Eighth Amendment claims. The district court denied the motion for summary judgment in April 2003 and, a week later, denied the motion for judgment on the pleadings. The defendants timely filed a notice of appeal regarding the denial of summary judgment and later timely filed a notice of appeal regarding the denial of judgment on the pleadings. Johnson argues that, under the 528 circumstances of this case, the second-filed appeal does not qualify as an appealable *528 decision under the collateral order doctrine.
Johnson acknowledges that, as a general matter, rulings denying qualified immunity 0907 whether the ruling occurs at the pleadings stage or at summary judgment 0907 are immediately appealable under the collateral order doctrine's exception to the final-judgment rule. Moreover, Johnson recognizes that the Supreme Court's decision in Behrens generally permits a public official to bring multiple qualified-immunity-based interlocutory appeals in the course of a single case. See 516 U.S. at 306-07, 116 S.Ct. 834 (permitting a public official to bring an interlocutory appeal of the denial of his motion for summary judgment after the court of appeals had already affirmed and remanded on a previous interlocutory appeal of the denial of his motion to dismiss). Nonetheless, Johnson argues that those general principles are inapplicable to the unusual circumstances of this case. A motion to dismiss or for judgment on the pleadings on qualified immunity grounds is in the usual case immediately appealable, Johnson reasons, only because the public official would otherwise lose his entitlement to be free from discovery; an appeal would do no good if it came only after the official had already been subjected to discovery during summary-judgment proceedings. But in this case, Johnson points out, (some) discovery has already occurred and the case has moved to the summary-judgment stage. The justification for the immediate appeal of the motion to dismiss is therefore lacking in this case, he contends.
We conclude that Johnson's motion is not well-taken. The Supreme Court has announced the general rule that orders denying qualified immunity are treated as "final" and appealable, and we think it improper to carve out an exception that responds to the precise timing of the district court's rulings. The defendants' motion for judgment on the pleadings on the Equal Protection claims effectively asserted an immunity from discovery, from suit, and from liability. That some discovery did take place as the proceedings moved into the summary-judgment stage does not make the court's denial of the motion for judgment on the pleadings any less conclusive as regards the motion's request for immunity from trial and from liability. See Behrens, 516 U.S. at 306-09, 116 S.Ct. 834; Mitchell, 472 U.S. at 526-28, 105 S.Ct. 2806; cf. Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988) (holding that an official who failed to bring any interlocutory appeal could raise qualified immunity in a post-verdict appeal of the final judgment, even though the only aspect of his immunity that could still be vindicated at that stage was immunity from liability).
It also bears noting that the reason for the unusual course of proceedings cannot be attributed to any improper conduct or neglect on the part of the defendants. They properly filed a motion for judgment on the pleadings that largely concerned the plaintiff's Equal Protection claims. While waiting for a ruling, the defendants then filed a motion for summary judgment, which mostly involved the plaintiff's Eighth Amendment claims. There was nothing improper about how the defendants proceeded. The district court ruled first on the motion for summary judgment and later concluded (perhaps erroneously) that the earlier motion was therefore moot. Either motion would, by itself, ordinarily support an interlocutory appeal. This case presents no reason to muddle the otherwise clear right 529 of a public official to bring an interlocutory appeal of a denial of qualified *529 immunity.[17] We will therefore consider the merits of the appeal.

B. Analysis
The district court's denial of the defendants' Rule 12(c) motion for judgment on the pleadings is reviewed de novo. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12 (b)(6). Id. at 313 n. 8. We accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff. Id. at 312-13. The motion to dismiss should not be granted unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the complaint. Id. at 313.
At the outset, there is some dispute regarding whether Johnson's complaint should be measured against a heightened pleading standard rather than the normal Rule 8(a) standard, which requires only a "short and plain statement of the claim." In our decision in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc), this court modified our prior practice of requiring heightened, detail-oriented pleading in § 1983 cases against public officials. After Schultea, a plaintiff no longer needs to "anticipate the [qualified immunity] defense in his complaint at the risk of dismissal under Rule 12." Id. at 1430.[18] The considerations that had led to the adoption of heightened pleading would henceforth be satisfied, the court held, through the device of a detailed Rule 7 reply, which the district court could order on the defendant's motion or sua sponte. Id. at 1433. No such Rule 7 reply was requested or ordered in this case, and the defendants have not appealed the district court's decision not to require one. As we have observed already, Johnson's complaint is quite detailed and factually explicit, and the defendants' answer was in the nature of a blanket denial.
Notwithstanding that there was no Rule 7 reply, the defendants contend that the standards for Rule 7 replies should govern instead of the rules characteristic of notice-pleading under Rule 8(a). Their reasoning is that the local rules for the Northern District of Texas disfavor motions for a more definite statement and that, according to their own knowledge and their conversations with court personnel, motions for a Rule 7 reply are treated the same way. Johnson aptly responds to the defendants' contentions by citing cases in which courts in the Northern District have granted motions requesting Rule 7 replies. If the district court were flouting Schultea 0907 which we presume our district courts would not do 0907 the defendants should have filed a motion for a Rule 7 reply and 530 appealed its denial. As they did *530 not, we will apply the ordinary rules that govern the sufficiency of complaints.
1. Whether the complaint adequately stated a claim
Turning to the sufficiency of the complaint, the defendants make three arguments in support of their view that Johnson's pleadings failed to allege any Equal Protection violations. If Johnson has indeed failed to allege a violation, then of course there can be no violation of clearly established law that would overcome qualified immunity. See Siegert, 500 U.S. at 232, 111 S.Ct. 1789. We consider each of the defendants' criticisms of the complaint in turn.
First, the defendants argue that Johnson's pleadings fail because he did not allege that the prison officials' classification decisions were not rationally related to any legitimate penological interest. It is important to point out that the defendants themselves have not attempted to articulate any legitimate interests that could justify giving less protection to homosexual inmates. Rather, their position in this case has consistently been that they did not in fact act on that basis. Nonetheless, they contend that there is a pleading requirement that the plaintiff must allege in his complaint the lack of any rational relationship to a legitimate penological interest. Although they are correct that the prisoner, not the state, bears the burden of proving that a challenged policy is invalid because it does not bear a rational relationship to legitimate objectives, Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003), that does not necessarily mean that the prisoner's complaint must allege the absence of such a relationship on pain of dismissal. Cf. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (stating that "there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it" (internal quotation marks omitted and emphasis added)). In any event, Johnson's complaint does include statements that the defendants subjected him to "an arbitrary and

irrational classification" and acted out of "hostility and animus." If a plaintiff's complaint must deny any rational relationship to legitimate penological aims even when those aims have not been articulated, Johnson's complaint satisfies the requirement.
Second, the defendants contend that, as mere comments alone do not violate the Equal Protection Clause, Johnson has not alleged that he has suffered any actionable discriminatory treatment. This argument misconstrues the nature of Johnson's claim. He does not contend that the comments made by certain defendants are themselves actionable. Rather, his complaint repeatedly alleges that he was denied protection because of his sexual orientation; the comments are relevant because they tend to reveal the defendants' reasons for their actions in denying him safekeeping. See Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.1999) (explaining that while an official's use of racial epithets "without harassment or some other conduct that deprives the victim of established rights... does not amount to an equal protection violation," the use of epithets is "strong evidence" that the official's actions are racially motivated).
Third, the defendants argue that the complaint fails to identify any non-homosexual prisoners who were similarly situated but were treated better. This argument is unavailing for several reasons. Johnson's complaint did contain general allegations to the effect that he qualified for safekeeping status but was treated differently than other 531 vulnerable inmates because of his sexual orientation. *531 He alleged, for instance, that the defendants "treated him differently than other similarly situated inmates based on their hostility and animus towards non-aggressive gay men."[19] It is unclear how a prisoner is supposed to possess identifying information regarding other inmates' treatment at the complaint stage. But, in any event, evidence of the type the defendants request is not essential to the claim. In most cases, a plaintiff lacks direct evidence of intentional discrimination, and he therefore will try to rely on evidence that two groups received different treatment, which can support an inference that the decisionmaker purposefully engaged in discrimination. But those kinds of inference-producing comparisons are unnecessary where the § 1983 plaintiff has direct evidence of discriminatory motive. See Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047-48 (5th Cir.1996). Indeed, Johnson's complaint contains detailed allegations that, if true, would constitute direct evidence that the defendants treated Johnson differently in making their decisions and did so because of his status.[20] Leaving aside the question whether identifying information about other inmates would even be available to a plaintiff at the pleading stage, we do not believe that a plaintiff's complaint must plead the circumstantial case that the defendants are requesting. Cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that a Title VII plaintiff need not plead facts showing a prima facie case of discrimination under McDonnell Douglas and remarking that it would be "incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.").[21]
532 *532 2. Clearly established law
The defendants contend that the law is not clearly established regarding (as they phrase the question presented in this case) "whether the use of race or sexual orientation as a factor in state prison classification decisions violates the Equal Protection Clause, when the use is rationally related to a legitimate penological interest." No Supreme Court or Fifth Circuit case, they say, has considered the extent to which sexual orientation can be considered in housing classifications.
The defendants' manner of phrasing the issue is inapt. First, while it is somewhat uncertain to what extent sexual orientation can legitimately be taken into account in fashioning prison housing policies,[22] the defendants in this case deny that they took Johnson's race and orientation into account. That is, they do not say that such statusbased decisionmaking would be justified because of legitimate countervailing penological aims 0907 as they would need to say in a case involving a policy of housing all black or all homosexual inmates together 0907 but rather they say that they made their decisions based on a status-neutral determination that Johnson was not unusually vulnerable.
Second, if they actually did deny Johnson protection because of his homosexuality, as Johnson alleges and as we must assume for purposes of analysis, that decision would certainly not effectuate any legitimate interest. See Farmer, 511 U.S. at 833, 114 S.Ct. 1970 ("[G]ratuitously allowing the beating or rape of one prisoner by another

serves no legitimate penological objectiv[e]." (second alteration in original) (internal quotation marks omitted)). It is clearly established that all prison inmates are entitled to reasonable protection from sexual assault. See id. at 832-34, 114 S.Ct. 1970. (As it happens, the abused inmate in Farmer was a feminine-looking preoperative maleto-female transsexual.) Neither the Supreme Court nor this court has recognized sexual orientation as a suspect classification [or protected group]; nevertheless, a state violates the Equal Protection Clause if it disadvantages homosexuals for reasons lacking any rational relationship to legitimate governmental aims. Romer v. Evans, 517 U.S. 620, 631-32, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The defendants have not attempted to argue that 533 according homosexuals less protection than other *533 inmates would advance any legitimate aim. Thus, we conclude that Johnson has alleged conduct that would be unreasonable in light of law that was clearly established at the time of the alleged events.
V. CONCLUSION
Johnson's motions to dismiss Nos. 03-10455 and 03-10505 are DENIED. We REVERSE the district court's judgment to the extent that it concluded that Johnson had exhausted: race-based Equal Protection claims; claims against defendants Paul and Willingham; claims against Bright and Kuyava as regards the September 6, 2000 UCC; claims against Mooneyham and Vitolo as regards the December 13, 2000 UCC; claims against Bowman, Boyle, and Kuyava as regards the February 14, 2001 UCC; and claims against Vitolo and Wathen as regards the February 21, 2001 UCC. See supra Part II.D. Turning to the exhausted claims, we also REVERSE the district court's judgment to the extent that it denied qualified immunity to Executive Director Johnson, Treon, and Wright. The district court's judgment is otherwise AFFIRMED. The case is REMANDED to the district court, for dismissal of the claims listed above and for further proceedings on the remaining claims.
Each party shall bear its own costs.
MOTIONS DENIED; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[1] The parties' briefs take apparently conflicting positions on whether Johnson was housed in safekeeping before his transfer. Johnson's brief says that "he had been housed in safekeeping just before he was transferred to Allred Unit." But the defendants say that "Johnson was not classified `safekeeping' prior to the his arrival at the Allred Unit." It appears that both sides are technically correct: Johnson was housed in transient safekeeping shortly before his transfer, but he was not officially classified to that status.
[2] Additional details regarding Johnson's grievances are provided later, in conjunction with our analysis of the exhaustion issue.
[3] This defendant is referred to in this opinion as "Executive Director Johnson." The name "Johnson" refers to the plaintiff, Roderick Johnson.
[4] The incident involving Paul occurred in March 2002. According to Johnson, a group of inmates molested him and a mentally ill inmate in the showers. Afterward, Johnson told Paul, who offered no assistance and instead made menacing comments to Johnson.
[5] There is some overlap among these general categories of defendants. For instance, Wathen sometimes sat on the UCC; Mooneyham sat once on the UCC and (with Willingham) was involved in the October 2000 incident described earlier, in addition to carrying out his supervisory responsibilities.
[6] At the same time, two of the defendants (Executive Director Johnson and Paul) also sought judgment on the pleadings with regard to Johnson's Eighth Amendment claim. The other defendants, however, did not challenge the Eighth Amendment theory at the pleadings stage.
[7] Before turning to the substance of the exhaustion requirement, we observe that there is a threshold issue regarding whether the defendants properly raised the exhaustion issue. Though the defendants raised exhaustion in their motions for judgment on the pleadings and for summary judgment, their answer to Johnson's complaint did not raise the issue. Johnson argues that exhaustion is an affirmative defense and points to the

general rule, see Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92 (5th Cir.2001), that affirmative defenses not raised in the answer are ordinarily deemed waived. The defendants contend that exhaustion is not an affirmative defense but is instead part of the plaintiff's cause of action.
As Johnson accurately points out, the substantial majority of courts of appeals that have considered the question hold that exhaustion is an affirmative defense, generally reasoning that it is similar to a statute-of-limitations defense. See, e.g., Casanova v. Dubois, 304 F.3d 75, 77 n. 3 (1st Cir.2002) (citing cases). But see Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir.2003) (taking the contrary view and requiring prisoners to allege and show exhaustion of administrative remedies). Some prior decisions of this court seem to imply or assume that exhaustion is a component of the plaintiff's claim, not an affirmative defense that must be raised and proved by the defendants. See, e.g., Days v. Johnson, 322 F.3d 863, 868 (5th Cir.2003); Wendell v. Asher, 162 F.3d 887, 892 (5th Cir.1998); Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir.1998). But, arguably, these cases have not directly decided the question. Assuming arguendo that the question is as-yet undecided, we have no occasion to decide it here. While failure to raise an affirmative defense in the answer generally results in a waiver, noncompliance can be excused if the defendant raises the issue at a "pragmatically sufficient" time and there is no prejudice to the plaintiff. See Giles, 245 F.3d at 491-92. The defendants raised the exhaustion issue in their motion for judgment on the pleadings, and here it does not appear that Johnson was surprised in any way, as might happen when a party waits until shortly before trial to raise a new defense. Moreover, failure to plead exhaustion in the answer is especially excusable here given that the law on the topic is not clearly settled. See Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.2001) (excusing defendant's failure to raise exhaustion in a timely manner because circuit law regarding PLRA exhaustion was unsettled at the time).
[8] The Strong opinion qualified its holding by noting that a state's procedures would be invalid if they established requirements inconsistent with the federal policies behind § 1983 and § 1997e(a). 297 F.3d at 649. In other words, a state could not make grievance rules that prevented the vindication of substantive rights.
[9] To be sure, Johnson's Eighth Amendment and Equal Protection claims are not wholly unrelated: His race, he claims, is part of the reason why the defendants failed to protect him. Cf. Burton, 321 F.3d at 577. Nonetheless, these claims reflect distinct problems with prison staff, and a grievance that suggested a racial component to Johnson's situation could be expected to produce a different type of administrative response. Cf. Porter, 534 U.S. at 525, 122 S.Ct. 983 (explaining that one purpose of the exhaustion requirement is the creation of an "administrative record that clarifies the contours of the controversy"). We do not believe that it is too much to ask that a prisoner at least suggest a racial component if he is later going to sue on that ground.
[10] We pause to note that our holding does not mean that information regarding unexhausted events cannot be used as evidence, if relevant and otherwise admissible, in proving claims that are exhausted. Cf. United States v. Ashdown, 509 F.2d 793, 798 (5th Cir.1975).
[11] By way of comparison, inmates sometimes do claim that the procedures or outcome of a particular administrative hearing violated their rights. See, e.g., Black v. Warren, 134 F.3d 732 (5th Cir.1998); Banuelos v. McFarland, 41 F.3d 232 (5th Cir.1995).
[12] The grievance investigation form corresponding to the December 30 Step 1 grievance states, in the "Summary of Issue" section, "Dupl. XXXXXXXXXX." This presumably means that administrators understood it to duplicate grievance # XXXXXXXXXX, which was filed on December 5 and which, in turn, was summarized by administrators as "[inmate] wants protection." The grievance investigation form corresponding to the Step 2 appeal describes the issue as a complaint about being threatened and harassed.
[13] We pause to observe that we do not here hold that a grievance filed in response to one particular incident automatically exhausts claims that arise from future incidents of the same general type. Thus, an inmate who claims to have been beaten by guards (or, for that matter, not protected by guards) once one month and again the next month can rightfully be expected to grieve both incidents, following TDCJ's fifteen-day rule in each case. Nor do we hold that Johnson would not be required to file additional grievances for future incidents that reflect a different problem. For instance, Johnson's claims against Lieutenant Paul stem solely from the March 2002 incident in which Paul responded indifferently after Johnson reported being harassed in the shower. This discrete

incident reflects a different type of problem that would require a different grievance. (Indeed, we will hold in the next section of the opinion that Johnson has not exhausted his claims against Paul.)
[14] We note that the exhaustion requirement is not jurisdictional. See Underwood, 151 F.3d at 294-95.
[15] We observe that the defendants have not argued in favor of a total exhaustion rule according to which an entire lawsuit must be dismissed without prejudice when certain claims are exhausted but others are not.
[16] We observe as well that Johnson appeared before a UCC in April 2002. It is not clear whether Johnson is pursuing claims related to this meeting, at which Johnson was transferred to a different prison. Defendant Wathen was a member of this committee. If Johnson does mean to pursue such claims, we would hold that Wathen's response was a reasonable one and that the immunity defense should be upheld.
[17] An instructive contrast with today's case is presented by Armstrong v. Texas State Board of Barber Examiners, 30 F.3d 643 (5th Cir.1994). There, the defendant's motion for summary judgment simply repeated the same pleadings-based arguments that the defendant had earlier raised in an unsuccessful motion to dismiss, which the defendant did not appeal. The panel concluded that the defendant was merely trying to circumvent the long-elapsed deadline for filing an appeal of the denial of the motion to dismiss, and it dismissed the appeal. Id. at 644. In today's case, by contrast, the defendants' two motions rely on somewhat different grounds. Further, both appeals were timely filed, so it cannot be said that the defendants are trying to evade any deadline.
[18] Schultea nonetheless cautioned that, in making his "short and plain statement of his complaint" under Rule 8, the plaintiff may not rest on "conclusions alone." 47 F.3d at 1433.
[19] The defendants at one point assert that "[a]ll of Plaintiff's allegations regarding equal protection are made on `information and belief,'" and they argue that such allegations are improper. It is inaccurate to say that "all" of the allegations are so phrased. The only "information and belief" allegations related to this subject are a few that concern whether the defendants have a "custom and practice" of denying safekeeping to vulnerable black and homosexual inmates. Further, "information and belief" pleadings are generally deemed permissible under the Federal Rules, especially in cases in which the information is more accessible to the defendant. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1224 (2d ed. 1990).
[20] Direct evidence includes statements revealing that an improper criterion 0907 here sexual orientation 0907 played a part in the decisionmaking process. See Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.2003); see also Propst v. Leapley, 886 F.2d 1068, 1071 (8th Cir.1989) (describing prison official's statement that disciplinary committee is "inclined to be more lenient to blacks" as "highly probative" direct evidence of intentional discrimination in violation of the Equal Protection Clause). Johnson's complaint alleges that various defendants made remarks that reveal that they acted on improper criteria when they denied him safekeeping status. See, e.g., Complaint at ¶ 33 ("We don't protect punks on this farm."), ¶ 55 ("There is no reason why Black punks can't fight and survive in general population if they don't want to f***."), ¶ 86 ("You like this.... I don't think you need no safekeeping.").
[21] The defendants address Johnson's Equal Protection claims primarily in their brief in No. 03-10505, the appeal from the denial of the motion for judgment on the pleadings. Naturally, the arguments in that brief 0907 which we have been addressing in this part of the opinion 0907 concern only Johnson's pleadings, not his summaryjudgment evidence. At the end of their brief in No. 03-10455, the separate appeal from the denial of the motion for summary judgment, which mostly pertains to the Eighth Amendment, the defendants incorporate by reference the pleadings-based Equal Protection arguments from the other brief. The defendants' brief in No. 03-10455 then purports to argue, in a few sentences without any citations to authorities or the record, that Johnson has also failed to provide sufficient evidence to survive summary judgment on his Equal Protection claims. This briefing on the evidentiary support for the Equal Protection claims (as opposed to the adequacy of the pleadings) is likely inadequate to present the issue. See L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir.1994). In any event, the result would not differ if summary-judgment standards were applied to the Equal Protection claims. Johnson's affidavit recounts the same inflammatory statements alleged in his complaint, which constitute direct evidence. The defendants point out that a couple of the defendants 0907 including Vitolo, a defendant at issue here 0907 did not make such comments. Yet Johnson's affidavit says that Vitolo laughed during

the meeting when one of the other UCC members said that Johnson did not need protection from rape because he liked having sex with men. Further, Johnson had filed a motion to compel disclosure of statistics on safekeeping that might provide the circumstantial evidence of intentional discrimination that the defendants fault him for not employing. Johnson's response to the motion for summary judgment included a Rule 56(f) affidavit that alerted the district court to the pendency of his request for this information.
[22] We observe that the Supreme Court has granted certiorari to decide whether a prison's policy of segregating incoming prisoners by race for a period of sixty days violates the Equal Protection Clause. See Johnson v. California, 321 F.3d 791 (9th Cir.2003), cert. granted, ___ U.S. ___, 124 S.Ct. 1505, 158 L.Ed.2d 151 (2004).
Save trees - read court opinions online on Google Scholar.