1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JOSE ESCOBAR,

TDCJ-CID No. 02013427,

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§

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Plaintiff, § Case No. 2:22-CV-00082-Z-BR

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v. §

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ROBERT ALMANZA JR., et al., §

§

 Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO 

GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendants’ Motion for Summary Judgment on the issue of qualified 

immunity (the “Motion”). (ECF 55). For the reasons stated herein, the Magistrate Judge 

recommends that the Motion be GRANTED.

I. FACTUAL BACKGROUND

During the relevant time period, Plaintiff Jose Escobar (“Escobar”) was a prisoner at the 

Jordan Unit of the TDCJ. On November 22, 2021, Escobar notified Officer Braden Tapp (“Tapp”) 

that he had received a note known as a “kite,” which is a form of communication between 

prisoners. (ECF 56-1 at 4-5, 8, 9). The kite had been slipped under his door and contained threatens 

to harm Escobar. (Id. at 9). Tapp, in turn, notified Defendant April Stevens (“Stevens”), who 

removed Escobar from general population and placed him in Offender Protection Investigation 

(“OPI”) Status. (Id. at 3-5, 8). An investigation was initiated the following day. (Id.)

Defendant Benjamin Minyard (“Minyard”) handled the investigation. (Id. at 3). Minyard 

interviewed Escobar, who told Minyard that he “can’t be here” and that other inmates think he 

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works for Defendant Wade Alexander (“Alexander”), the assistant warden. (Id. at 5). Minyard also 

interviewed two other inmates. Both refused to make written statements, but made verbal 

comments that were recounted in Minyard’s report. Inmate Christopher Gonzales told Minyard 

that Escobar “ain’t nobody. Ain’t no one passing him kites.... He’s a dumbass that’s just trying to 

get himself off this unit acting like he is somebody.” (Id. at 7). Inmate Dimas Deleon told Minyard 

that inmates “washed their hands of [Escobar] because he works for Alexander” and that he didn’t 

think Escobar “would have an issue if he was back on the unit but then again, I don’t know because 

so many people can’t stand his ass.” (Id.). Minyard’s report concludes:

[A]fter investigating the claims from inmate Escobar and the statements from other 

inmates none of the statements confirm [h]is claims. There is no evidence that 

points to any person or group making any threats specifically towards inmate 

Escobar. He has given no names or names of groups making any of the claimed 

threats.

(Id.). On November 30, 2021, the Unit Classification Committee (“UCC”), chaired by Alexander, 

notified Escobar in person that, based upon the preponderance of the evidence discovered in 

Minyard’s investigation, the UCC determined that the threat of violence to Escobar was 

unsubstantiated. (ECF 3 at 12, 56-1 at 6).

Also on November 30, 2021, Escobar reported that he had received a fourth kite under his 

door on November 24, 2021. (ECF 56-2 at 3, 4, 8, 9). However, the undisputed evidence shows 

that Escobar presented only two of the kites for investigation. (See ECF 56-1 and 56-2). Escobar 

again was removed from general population and a second OPI investigation was instigated based 

upon the second presented kite. (ECF 56-2 at 3). This investigation was handled by Genoveva 

Acosta (“Acosta”). (Id.). Acosta interviewed Escobar, who told her that he “is being threatened by 

the [Tango Blast gang] to leave the Unit because he is ‘snitching.’” (Id. at 5). He further stated that 

he did not know who put the kite under his door, and that he had not been verbally threatened. 

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Escobar claimed that Minyard’s investigation into the first kite made him look like a snitch “by 

pulling out Inmates and giving them too much information.” (Id. at 5-6). 

During her investigation, Acosta interviewed the inmates who had been interviewed by 

Minyard in connection with the first investigation. Inmate Gonzales, a Tango Blast member, told 

Acosta that he “does not know anything about Inmate Escobar and has only observed him in the 

wing while he lived there.” (Id. at 7). Inmate Deleon, also a Tango Blast member who lived in the 

same wing as Escobar, said that Escobar “had a loud mouth and would start issues with everyone” 

and may have had issues with black inmates. (Id.). Deleon further stated, however, that he “does 

not believe [Escobar] is in any danger from anyone and stated that he probably owes people 

money.” (Id.). Because of Deleon’s suggestion that Escobar had issues with black inmates, Acosta 

interviewed Frankie Williams, a black inmate who lived in the same wing as Escobar. Williams 

stated that Escobar was “a druggie who was always asking inmates for something to smoke.” (Id.) 

He further stated that Escobar had issues with everyone, including officers, and not just black 

inmates. (Id.) Acosta’s report concludes:

At the conclusion of the investigation and with the interviews conducted the 

allegations given for the investigation were unsubstantiated. There is no evidence 

found that proofs [sic] that the Tango Blast sent Inmate Escobar the threatening 

notes. With the interviews conducted it was found that Inmate Escobar liked to 

argue with Inmates [and] Officers and liked to smoke. It is possible Inmate Escobar 

owed money to other Inmates.

(Id.). On December 2, 2021, the UCC, chaired by Defendant Robert Almanza (“Almanza”), 

notified Escobar in person that, based upon the preponderance of the evidence discovered in 

Acosta’s investigation, the UCC determined that the second threat of violence to Escobar was 

unsubstantiated. (ECF 3 at 13).

On December 25, 2021, while walking on a sidewalk after leaving the dining hall, Escobar 

crossed paths with inmate Duane Garza (“Garza”). Garza stepped across the sidewalk and began 

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assaulting Escobar. (ECF 56-3 at 6). Lt. Megan Stevens witnessed the assault and ordered both to 

stop. Both complied. She handcuffed both inmates and noticed that Escobar had large slash marks 

down his jacket. Both inmates were escorted to restrictive housing. (Id.) Defendant Leo Ramirez 

(“Ramirez”) conducted strip searches on both inmates and found a weapon on Garza in the form 

of a razor blade tied to a pen case. (Id.). Both inmates were screened by medical, with only minor 

injuries noted, although the report does not state which inmate suffered the injuries. (Id.). No 

medical treatment was required. (Id. at 5). Garza was charged with attempting to assault another 

inmate with a weapon, and Escobar was removed from general population and placed in OPI 

pending the outcome of a third investigation. (Id. at 3). 

Megan Stevens conducted the third investigation and the report primarily consisted of her 

eyewitness account of the attack. On December 29, 2021, the UCC, chaired by Almanza, notified 

Escobar in person that both the threat of violence and actual violence were substantiated. (ECF 3 

at 14). The UCC recommended a transfer due to the assault. (ECF 56-3 at 7). The parties in this 

case do not indicate in the record whether Escobar was transferred as a result of the substantiated 

charge, but the Court notes that Escobar was no longer housed at the Jordan Unit at the time he 

filed suit on August 29, 2022. 

In his Complaint, Escobar alleges that Defendants Bryan Collier, Almanza, Alexander, 

Safe Prisons Sgt. Benjamin Rodriguez, Chief of Classification Bobbie Osborne, Lt. Tyler 

Maxwell, Minyard, Ramirez and Stevens violated his Eighth Amendment rights by failing to 

protect him, despite having notice that he was in danger. Escobar was appointed counsel in this 

case. On February 13, 2024, Defendants filed the Motion, alleging that they are entitled to 

summary judgment on Escobar’s claims based on their affirmative defense of qualified immunity. 

Escobar responded to the Motion, claiming that material fact questions exist that preclude 

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summary judgment.

II. SUMMARY JUDGMENT STANDARD

A. Summary Judgment Standard.

The purpose of summary judgment is to isolate and dispose of factually unsupported claims 

or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper 

if the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). A dispute about a material fact is genuine “if the evidence is such that 

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). The Court must resolve all reasonable doubts in favor of the party 

opposing the motion. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th 

Cir. 1981).

The movant has the burden to show that there is no genuine issue of material fact and that 

it is entitled to judgment as a matter of law. Anderson, 477 U.S. at 247. If the movant bears the 

burden of proof on a claim or defense on which it is moving for summary judgment, it must come 

forward with evidence that establishes “beyond peradventure all of the essential elements of the 

claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). When the 

nonmovant bears the burden of proof, the movant may discharge its burden by showing that there 

is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. 

Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, 

the nonmovant must “respond to the motion for summary judgment by setting forth particular facts 

indicating that there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. 

at 248-49). The nonmovant must provide affirmative evidence to defeat summary judgment. 

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Anderson, 477 U.S. at 257. No “mere denial of material facts nor...unsworn allegations [nor] 

arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi 

v. Compaq Comput. Corp., 98 F. App’x 335, 338 (5th Cir. 2004). The Court requires “significant 

probative evidence” from the nonmovant in order to dismiss a request for summary judgment 

supported appropriately by the movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 

2001). The Court must consider all evidence but must not make any credibility determinations or 

weigh the evidence. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

B. Defendants’ Qualified Immunity Defense Alters the Burden of Proof.

Defendants move for summary judgment on their affirmative defense of qualified 

immunity. “The doctrine of qualified immunity protects government officials from civil damages 

liability when their actions could reasonably have been believed to be legal.” Argueta v. Jaradi, 

86 F.4th 1084, 1088 (5th Cir. 2023) (citing Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) 

(en banc)). Once an officer pleads qualified immunity, the plaintiff has the burden to establish that 

the officer violated the plaintiff’s clearly established federal rights. Argueta, 86 F.4th at 1088 

(citing Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005)). “This 

is a demanding standard.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015), cert. 

denied, 136 S.Ct. 1517 (2016). Because qualified immunity “protects all but the plainly 

incompetent or those who knowingly violate the law, ... we do not deny its protection unless 

existing precedent places the constitutional question beyond debate.” Argueta, 86 F.4th at 1088 

(internal citation omitted). 

A qualified immunity defense alters the usual summary judgment burden of proof. Brown 

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden 

then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to 

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whether the official’s allegedly wrongful conduct violated clearly established law.” Id. To 

determine if an official acting within the scope of his or her duties is entitled to qualified immunity, 

courts conduct a two-step analysis. First, they examine whether the plaintiff has shown a violation 

of a constitutional right under current law. Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022) 

(quoting Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019)). Second, if a violation has occurred, 

courts determine whether the right in question was “clearly established” at the time of the alleged 

violation, such that the officer was on notice of the unlawfulness of his or her conduct. Id. In short, 

an officer is entitled to qualified immunity “if there is no violation, or if the conduct did not violate 

law clearly established at the time.” Bailey v. Iles, No. 22-30509, 2023 WL 8062239 at *2 (5th 

Cir. Nov. 21, 2023). Courts have the discretion to decide “which of the two prongs of the qualified 

immunity analysis should be addressed first in light of the circumstances in the particular case at 

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Each Defendant’s conduct must be 

analyzed separately to determine if he or she is entitled to qualified immunity. 

III. LEGAL ANALYSIS

To defeat the Motion, Escobar must show that each Defendant’s qualified immunity 

defense is unavailable. King v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016) (internal quotation 

marks and citations omitted). “The plaintiff must rebut the defense by establishing that the 

official’s allegedly wrongful conduct violated clearly established law and that genuine issues of 

material fact exist regarding the reasonableness of the official’s conduct.” Id. at 654 (quoting Gates 

v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008)). “To negate 

a defense of qualified immunity and avoid summary judgment, the plaintiff need not present 

‘absolute proof,’ but must offer more than ‘mere allegations.’” Id. (quoting Manis v. Lawson, 585 

F.3d 839, 843 (5th Cir. 2009)).

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A. Failure to Protect.

It is well established that “prison officials have a duty to protect prisoners from violence at 

the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994); Longoria v. Texas, 

473 F.3d 586, 592 (5th Cir. 2006). This duty, which is grounded in the Eighth Amendment’s 

prohibition against cruel and unusual punishment, is nevertheless a limited one. Farmer, 511 U.S. 

at 832-34. The Eighth Amendment mandates “reasonable” safety, not “absolute” safety. Newton 

v. Black, 133 F.3d 301, 308 (5th Cir. 1998); Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999) 

(“We recognize at the outset that neither prison officials nor municipalities can absolutely 

guarantee the safety of their prisoners.”). Every injury suffered by one prisoner at the hands of 

another does not amount to a constitutional violation by prison officials responsible for a prisoner’s 

safety. Farmer, 511 U.S. at 834. The substantial risk and need for protection must be obvious to 

the custodial officials in order to trigger the inmate’s Eighth Amendment rights, and prison 

officials are not required to guarantee that no attack ever will occur. See Newton, 133 F.3d at 308. 

To prevail on a failure to protect claim, a prisoner must show that he was incarcerated 

under conditions posing a substantial risk of serious harm and that prison officials were 

deliberately indifferent to his need for protection. Farmer, 511 U.S. at 832-34; Jones v. Greninger, 

188 F.3d 322, 326 (5th Cir. 1999). A prison official is deliberately indifferent to a prisoner’s safety 

when the official is aware of a substantial risk of harm to the prisoner but disregards that risk by 

failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847; Cantu v. Jones, 293 F.3d 

839, 844 (5th Cir. 2002). To act with deliberate indifference, a prison official must be “subjectively 

aware” of the risk; that is, he “must both be aware of facts from which the inference could be 

drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 

511 U.S. at 837. However, even if a prison official was subjectively aware of the risk, he may be 

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found free from liability if he “responded reasonably to the risk, even if the harm ultimately was 

not averted.” Id. at 844. Only deliberate indifference will suffice to state a failure to protect claim; 

mere negligence is not sufficient. Id. at 837. 

The deliberate indifference standard is an extremely high standard to meet. Gobert v. 

Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 

752, 756 (5th Cir. 2001). The Fifth Circuit has declined to find deliberate indifference where an 

official “should have” inferred a risk posed to an inmate; the official must actually draw such an 

inference. Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003). 

B. Defendant Bryan Collier. 

Escobar claims that Defendant Bryan Collier, the Executive Director of the Texas 

Department of Criminal Justice, had actual notice that Escobar needed physical protection, but 

displayed deliberate indifference by ignoring Escobar’s request. He claims in his Declaration, 

submitted in his response to the Motion, that he attempted to contact Collier through Collier’s 

ombudsman in an unspecified manner. In response to his efforts, Escobar received a letter stating 

that Collier, or someone in his office, would investigate Escobar’s claims. Escobar states that he 

received no further communications and knows of no follow-up from Collier. (ECF 62-1 at 2). 

To successfully plead a cause of action in a civil rights case, a plaintiff must ordinarily 

articulate facts that illustrate the defendant’s participation in the alleged wrong. Jacquez v. 

Procunier, 801 F.2d 789, 793 (5th Cir. 1986). Personal involvement entails some causal nexus 

between the defendant’s individual conduct and the constitutional violation. Douthit v. Jones, 641 

F.2d 345, 346 (5th Cir. 1981). An individual’s mere ratification of or acquiescence to another 

person’s conduct is insufficient to establish personal involvement. Ashcroft v. Iqbal, 556 U.S. 662, 

677 (2009). Escobar does not allege that Collier participated in making the decisions that placed 

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Escobar in danger. He has failed to provide evidence showing that Collier “affirmatively 

participate[d] in the acts that cause[d] the constitutional deprivation ...” Porter v. Epps, 659 F.3d 

440, 446 (5th Cir. 2011) (quoting Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 

F.3d 404, 435 (5th Cir. 2008)). Escobar solely bases Collier’s purported liability on the fact that 

he “attempted to contact Director Collier through the Ombudsman.”1

The mere fact that Escobar attempted to contact Collier does not mean that Collier is 

personally involved in the alleged violation of Escobar’s constitutional rights. “[T]housands of 

grievances, letters, and complaints are written by inmates each month. The directors and 

administrators of the prison are not liable for each and every incident raised in each and every one 

of those grievances or letters on the basis that they have ‘personal knowledge’ of the claims 

contained therein.” Robinson v. Stephens, No. 6:14cv701, 2017 WL 4112363 (E.D. Tex. Aug. 9, 

2017); see also Johnson v. Johnson, 385 F.3d 503, 526 (5th Cir. 2004) (given the size of the 

operation that they oversee, the Director of TDCJ, the Senior Warden of the plaintiff’s prison unit 

and the Director of the Classification Division “cannot be expected to intervene personally in 

response to every inmate letter they receive.”). Escobar’s attempts to contact Collier, without more, 

are insufficient as a matter of law to confer personal liability on Collier, and Collier is not liable 

solely in his capacity as a supervisor of the other Defendants. The doctrine of respondeat superior

does not apply in § 1983 actions. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978); 

1Escobar further alleges that “[w]ith discovery abated in this matter, Plaintiff cannot at this time further 

investigate what Collier knew or didn’t know, nor what steps Collier took, if any, to investigate or prevent 

the attack against Plaintiff.” (ECF 62 at 2-3). The Court finds unavailing the belated assertion that discovery 

is necessary for a complete response to the Motion. The Court’s October 12, 2023, scheduling order states 

that “[o]n a proper request, the Court may authorize a plaintiff to conduct limited discovery in order to 

respond to the qualified-immunity issues raised in the expected motion for summary judgment.” (See ECF 

49 at 2). Escobar did not file a Rule 56(d) motion in response to the Motion, nor did he submit a request for 

discovery on qualified immunity at any time after the scheduling order was entered.

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Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). Collier is entitled to summary judgment on 

Escobar’s claims against him.

C. Defendant Benjamin Rodriguez.

Rodriguez is the Safe Prisons Sergeant of the Jordan Unit. (ECF 62 at 3). Escobar alleges 

that Rodriguez was present when Escobar told Acosta in connection with the investigation into the 

second kite that Tango Blast gang members had threatened him because they thought he was an 

informant. (ECF 62-1 at 2). However, Escobar provides no evidence that Rodriguez participated 

in the decision to find Escobar’s first two claims unsubstantiated, nor does he provide evidence 

that Rodriguez participated in the decision to house Escobar in an area that could put him in danger. 

Further, he provides no evidence that Rodriguez had the authority to transfer Escobar to a different 

unit. As stated supra, mere ratification of or acquiescence to another person’s conduct is 

insufficient to establish personal involvement. “Absent vicarious liability, each Government 

official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft, 

556 U.S. at 677. Escobar has failed to provide evidence showing that Rodriguez “affirmatively 

participate[d] in the acts that cause[d] the constitutional deprivation ...” Porter, 659 F.3d at 446; 

see also Johnson v. Thaler, No. 5:11cv9, 2011 WL 2433623, at *3 (E.D. Tex. May 18, 2011) 

(supervisory defendants can be held liable only to the extent that they each personally engaged in 

misconduct). Further, he has provided no evidence that Rodriguez actually inferred a risk to 

Escobar based solely on Escobar’s claims made in the interview with Acosta. See Adames, 331 

F.3d at 514. Rodriguez is entitled to qualified immunity on Escobar’s claims and his Motion should 

be granted.

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D. Defendants Wade Alexander, Bobbie Osborne, Leo Ramirez and Robert Almanza.

Escobar sues Defendants Alexander, Bobbie Osborne, Ramirez and Almanza (the “UCC 

Defendants”), stating that they had actual notice that Escobar needed physical protection but 

ignored his “request for safety”. (ECF 14 at 5). According to Defendants’ Motion, these defendants 

are members of the UCC.2 The UCC Defendants contend that they are entitled to qualified 

immunity because the UCC conducted “necessary and reasonable steps in accordance with 

established protocol to investigate Plaintiff’s allegation of an impending assault.” (ECF 56 at 16). 

Escobar alleges that the UCC Defendants did not reasonably investigate his claims because he 

was, in fact, attacked, which shows that the UCC Defendants acted unreasonably. (ECF 62 at 3).

The Court assumes for the purposes of this Motion that the UCC Defendants had the 

requisite subjective knowledge of a substantial risk to Escobar by virtue of Escobar’s complaints 

and the kites delivered to him that he provided to the investigating officers. However, under 

Farmer, prison officials violate the Eighth Amendment only if they are both (1) aware of a 

substantial risk to inmate safety and (2) fail to respond properly. Johnson, 385 F.3d at 525. As the 

Johnson court noted, Farmer emphasizes that “there is no Eighth Amendment violation if the 

official ‘responded reasonably to the risk, even if the harm ultimately was not averted.” Id., citing 

Farmer, 511 U.S. at 844. “Even assuming that all of the defendants knew of the substantial risk to 

[plaintiff’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.” Id. at 526.

2The evidence also indicates that Ramirez performed the strip search of Escobar and Garza after Garza’s 

assault on Escobar (ECF 56-3 at 6); however, Escobar makes no complaints about the strip search and it is, 

therefore, immaterial to the qualified immunity analysis regarding his failure to protect claim.

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Therefore, the salient inquiry is whether the undisputed evidence shows that the UCC 

Defendants’ response to the known threat to Escobar was reasonable. After receiving each of 

Escobar’s requests for protection, the UCC Defendants promptly removed him from general 

population, put him in OPI status, and initiated an investigation, as set forth above. (ECF 56-1, 56-

2, 56-3). Courts have found such actions to be a reasonable response to perceived threats to inmate 

safety. Taking action in response to threats, such as ordering further investigation or separating the 

plaintiff from a particular inmate who had been threatening him “may well have been reasonable 

methods of addressing the risk that [plaintiff] faced.” Id.; see also Howard v. Blanchard, No. W13-CA-327, 2016 WL 9080941 *7 (W.D. Tex. Feb. 17, 2016) (“Responding to an inmate’s 

complaints by referring them for further investigation, separating the inmate from others who 

allegedly pose a threat, interviewing the inmate, conducting medical exams of the inmate, 

ultimately transferring the inmate to another prison unit and taking other administrative action 

fulfills a prison official’s duties under the Eighth Amendment.”); Longoria, 473 F.3d at 594 (5th 

Cir. 2006) (“We have previously held that responding to an inmate’s complaints “by referring the 

matter for further investigation” or taking other appropriate administrative action fulfills an 

official’s protective duties under the Eighth Amendment.”) (citing Johnson, 385 F.3d at 526). 

Escobar essentially argues that, because he was attacked, the UCC Defendants’ actions 

must have been unreasonable. However, such ipso facto evaluation is not the proper standard by 

which to determine whether the UCC Defendants are entitled to qualified immunity. Escobar 

provides no evidence showing that the UCC Defendants’ response to his complaints was 

unreasonable, even if such actions ultimately did not prevent the attack. “Deliberate indifference 

encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of 

mankind.” McClain v. Galvan, No. 2:18-CV-192-Z-BR at *2 (N.D. Tex. Feb. 16, 2022) 

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(Kacsmaryk, J.), citing McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir 1999). To satisfy the 

exacting deliberate indifference standard, a defendant’s conduct must rise “to the level of 

egregious intentional conduct.” McClain, 2022 WL at *2 (citing Gobert, 463 F.3d at 351). Escobar 

provided no evidence of “egregious intentional conduct” sufficient to create a material fact 

question as to whether the UCC Defendants were deliberately indifferent to his safety by failing 

to respond reasonably to his requests for protection.3 Because Escobar failed to create a fact 

question as to whether the UCC Defendants’ conduct violated his constitutional rights, the UCC 

Defendants are entitled to qualified immunity and their Motion should be granted.

E. Defendant Benjamin Minyard.

Minyard conducted the investigation into Escobar’s first request for protection and the first 

kite he received. (ECF 56-1). Escobar essentially contends that Minyard should have discovered 

the danger to Escobar, arguing that “the very lack of thoroughness in Minyard’s investigation is 

itself evidence of deliberate indifference.” (ECF 62 at 6). However, he provides no evidence that 

Minyard knew of a substantial risk to Escobar either before or after his investigation. The Fifth 

Circuit has declined to find deliberate indifference when an official “should have” inferred a risk 

posed to an inmate; the official must actually draw such an inference. See Adames, 331 F.3d at 

514. There is no evidence that Minyard subjectively knew of the risk to Escobar such that he was 

deliberately indifferent to the danger to Escobar. Further, assuming the truth of Escobar’s assertion 

that Minyard’s investigation was insufficient, Escobar provides no evidence that raises such 

insufficiency from mere negligence to deliberate indifference. See Farmer, 511 U.S. at 837 (mere 

negligence is not sufficient to state a constitutional violation). Escobar provided no evidence of 

3Again, the Court is unsympathetic to Escobar’s belated complaints about a lack of discovery since he did 

not request discovery or seek a Rule 56(d) extension of his response date. 

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“egregious intentional conduct” to create a material fact question as to whether Minyard was 

deliberately indifferent to Escobar’s safety. See McClain, 2022 WL at *2. Because Escobar failed 

to create a fact question as to whether Minyard’s conduct violated his constitutional rights, 

Minyard is entitled to qualified immunity and his Motion should be granted.

F. Defendant Tyler Maxwell.

Escobar claims that Maxwell forced him out of his OPI cell and back to general population 

after the conclusion of the second investigation by threatening Escobar with chemical spray if he 

failed to comply with Maxwell’s orders. (ECF 62). Escobar claims in his Declaration that he told 

Maxwell that “they will kill me” but Maxwell still forced him out of protective custody. (ECF 62-1 

at 2). At best for Escobar, the evidence shows that Maxwell perhaps “should have” inferred a risk 

to Escobar; however, there is no evidence that Maxwell actually drew such an inference. See 

Adames, 331 F.3d at 514. Again, Escobar provided no evidence of “egregious intentional conduct” 

sufficient to create a material fact question as to whether Maxwell was deliberately indifferent to 

Escobar’s safety. Because Escobar failed to create a fact question as to whether Maxwell’s conduct 

violated his constitutional rights, Maxwell is entitled to qualified immunity and his Motion should 

be granted.

G. Defendant April Stevens.

In response to the Motion, Escobar states that he is abandoning his claims against Stevens. 

Therefore, it is recommended that Stevens be dismissed from this case.

H. Qualified Immunity: No Violation of Clearly Established Law.

1. Clearly Established Law.

Even assuming that Defendants’ conduct as set forth above resulted in a fact question as to 

whether Escobar’s constitutional rights were violated, Escobar provided no evidence that 

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Defendants’ conduct was not objectively reasonable in light of clearly established law. “A clearly 

established right is one that is sufficiently clear that every reasonable official would have 

understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) 

(internal quotation omitted). There are two ways for a plaintiff to demonstrate that a defendant’s 

conduct violated clearly established law. Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021). 

Under the first, more typical approach, the plaintiff must “identify a case” or “body of relevant 

case law” in which “an officer acting under similar circumstances ... was held to have violated the 

[Constitution].” Id. While there need not be a case directly on point, the unlawfulness of the 

challenged conduct must be beyond debate. Id. Under the second approach, there can be the rare 

“obvious case,” where the unlawfulness of the officer’s conduct is so egregious that it is 

sufficiently clear although existing precedent does not address similar factual circumstances. See 

Doege, 994 F.3d at 726 (citing Dist. of Columbia v. Wesby, 538 U.S. 48, 65 (2018)); see also 

Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

“In determining what constitutes clearly established law, [the Fifth Circuit] looks to 

Supreme Court precedent and then to [its] own.” Hicks v. LeBlanc, 81 F.4th 497, 503 (5th Cir. 

2023), (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)). When there is no 

direct controlling authority, “[the Fifth Circuit] may rely on decisions from other circuits to the 

extent that they constitute a robust consensus of cases of persuasive authority.” Id. “It is the 

plaintiff’s burden to find a case in his favor that does not define the law at a high level of 

generality.” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019). 

This is not the rare “obvious case” in which the unlawfulness of an officer’s conduct is so 

egregious that it is sufficiently clear such actions violate a prisoner’s rights. Further, Escobar 

provided no case law in response to the Motion that supports his position that any Defendant’s 

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alleged conduct violated clearly established law at the time in question. Specifically, Escobar 

provided no case law to show the following: (1) that Collier’s failure to respond to Escobar’s 

efforts to reach him equates to personal involvement in the alleged violation of Escobar’s 

constitutional rights; (2) that Rodriguez’s mere presence during Acosta’s interview with Escobar, 

without more, equates to personal involvement in the alleged violation of Escobar’s constitutional 

rights; (3) that the actions taken by the UCC Defendants as set forth above are an unreasonable 

response to the substantial risk of harm faced by Escobar; (4) that Minyard’s alleged insufficient 

investigation into the first kite meets the deliberate indifference standard under federal law; or (5) 

that Maxwell ordering Escobar out of his cell and into general population after Escobar told him 

that his life was in danger, without more, constitutes deliberate indifference under federal law. 

Therefore, Escobar has failed to show that any Defendant’s conduct violated “clearly established” 

law.

2. Defendants’ conduct was objectively reasonable.

“Even if the government official’s conduct violates a clearly established right, the official 

is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.” Wallace 

v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (internal marks omitted). “The defendant’s 

acts are held to be objectively reasonable unless all reasonable officials in the defendant’s 

circumstances would have then known that the defendant’s conduct violated the plaintiff’s asserted 

constitutional or federal statutory right.” Cozzo v. Tangipahoa Parish Council—President Gov’t, 

279 F.3d 273, 284 (5th Cir. 2002); see also Stanton v. Sims, 571 U.S. 3, 6 (2013) (government 

officials are given “breathing room to make reasonable but mistaken judgments”). Thus, denial of 

an official’s motion for summary judgment predicated upon qualified immunity requires two 

distinct determinations: (1) “a certain course of conduct would, as a matter of law, be objectively 

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unreasonable in light of clearly established law”; and (2) “a genuine issue of fact exists regarding 

whether the defendant(s) did, in fact, engage in such conduct.” Hogan v. Cunningham, 722 F.3d 

725, 730 (5th Cir. 2013).

In this case, there is no genuine issue of fact as to the actions taken by the Defendants, as 

set forth above. Further, as discussed supra, the undisputed evidence shows that Defendants’ 

actions were objectively reasonable; therefore, Defendants are entitled to summary judgment on 

Escobar’s claims.

RECOMMENDATION

As set forth above, the U.S. Magistrate Judge recommends that Defendants’ Motion For 

Summary Judgment be GRANTED as to Defendants Collier, Almanza, Alexander, Rodriguez, 

Osborne, Maxwell, Minyard and Ramirez. It is further recommended that Defendant Stevens be 

dismissed from this case.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions 

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED May 15, 2024. 

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28 

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), 

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery 

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 

276–77 (5th Cir. 1988).

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