V

N THE L]-NITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHRISTOPHER LAMONT PENN,

Plaintiff,

2:22-CV-089-Z-BR

DIRECTOR, TDCJ-CID, €t al.,

Defendants.

ORI}ER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Before the Court are the findings, conclusions, and recommendation ("FCR") of the United

States Magistrate Judge to grant in part and deny in part the Motions to Dismiss filed by

Defendants. ECF No. 13. Objections to the findings, conclusions, and recommendation have been

filed. See ECF No. 14. After making an independent review of the pleadings, files, and records in

this case, the Court concludes that the findings, conclusions, and recommendation of the

Magistrate Judge are correct. It is therefore ORDERED that the findings, conclusions, and

recommendation of the Magistrate Judge are ADOPTED and the Motions are GRANTED IN

PART and DENIED IN PART as discussed in the FCR.

The Court writes fuither to address Defendants' objections. Defendants object that Plaintiff

"has not stated an Eighth Amendment claim." ECF No. 14 at3. Defendants correctly recite the

test for when "prison conditions violate the Eighth Amendmenl" 

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i1"is two-fold" Id. (citing Ball

v. LeBlanc,792 F .3d 584, 592 (5th Cir. 2015)). First, "conditions must pose an unreasonable risk

of serious damage to a prisoner's health 

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an objective test." Ball,792 F .3d at 592 (internal marks

omitted). Second, "prison officials must have acted with deliberate indifference to the risk posed

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a subjective test." /d

Case 2:22-cv-00089-Z-BR Document 15 Filed 09/18/23 Page 1 of 5 PageID 86
Defendants misunderstand the test in two closely-related ways. First, Defendants object

that Plaintiff "failed to plead any injury in fact." ECF No. 14 at 4. Elevating the requisite showing

from "unreasonable risk" to "injury in fact" would be an improper interpretation of the objective

portion of the test. Cf, Ball, 792 F.3d at 592. Second, Defendants reverse the perspective of the

test, objecting that Plaintiff s complaint lacks "mention of harm incurred" or "the potential for

harm in the future." ECF No. 14 at 3. The objective testisforward-loolctng rather than considered

in hindsight 

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no past "harm incurred" is required. And neither is the present existence of

"potential for harm in the future" required. Instead, the test is whether, at the time of the alleged

violative condition, "prison officials . . . acted with deliberate indifference" to an "umeasonable

risk." Ball, 792 F.3d at 592. It is of no import that Plaintiff suffered no lasting injury if the

conditions "pose[d] an unreasonable risk of serious damage" and officials "acted with deliberate

indifference to the risk." ld

In support of their objection, Defendants contest the Magistrate Judge's reliance on

Withrow v. Heaton,275 F.3d 42 (5th Cir. 2001). See ECF No. 14 at 4. At the outset, Defendants

assert a bare conclusion: "This case is distinguishable because the Withrow plaintiff sufficiently

alleged that prison officials were indifferent to the health and safety of inmates." Id. (intemal marks

omitted). That is the legal conclusion firmly within the province of the Court.

InWithrow, "prison officials refused to repair windows during the winter despite extremely

cold temperatures in the prison" and forced the plaintiff "to walk 400 feet to the shower room in

his underwear every day despite the extreme cold." 275 F.3d 42. Defendants emphasize the

repeated 

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daily 

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repetition of the walk. See ECF No. 14 at 4. Defendants again read something

absent into the test. In effect, Withrow concerns a prisoner who was subjected to the same set of

conditions 

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conditions remarkably similar to those in this case: prolonged exposure to the

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Case 2:22-cv-00089-Z-BR Document 15 Filed 09/18/23 Page 2 of 5 PageID 87
extreme cold and a barefoot walk in the extreme cold. The Withrow plaintiff, like Sisyphus,

suffered the same peril each day. While repetition augments the severity of malice, it is not a

requirement to state a valid claim.

Similarly, Defendants contrast llithrow because that case noted special protective

measures provided to the guards that were denied to inmates. Id. (citing Withrow,275 F.3d 42

("[W]hile officers wore heavy winter coats, caps, and gloves and acquired space heaters for their

station to cope with the cold, they forced inmates to walk to the shower in their underwear.") But

Plaintiff alleges "Officer Mitchell also took my shoes, thermal tops and bottom, along with my

T.D.C.J. pants and shirt." ECF No. 3 at 9 (emphasis added). Plaintiff was denied protective

measures 

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thermals 

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and thereafter subjected to a "freezing" shower and barefooted walk back

from one building to another "in icy conditions." ECF No. 3 at 16-17.

Moreover, Llrithrow relies on another case that refutes Defendants' characterization of

Plaintiff s complaint as "[m]omentary and transient discomfort." 275 F.3d at 42 n.8 (citing Palmer

v. Johnson, 193 F.3d 346 (5th Cir. 1999)). Palmer instructs courts "[i]n addition to duration" to

"consider the totality of the specific circumstances that constituted the conditions of [the

plaintiff s] confinement, with particular regard for the manner in which some of those conditions

had a mutually enforcing effect." 193 F.3d at 353-54 (finding the Eighth Amendment forbids

prison officials from "depriv[ing]" inmates "of any protection from excessive cold and wind").

Palmer, in turn, cites to a Seventh Circuit case Dixon v. Godinez, observing that "most successful

Eighth Amendment claims often involve allegations of cold in conjunction with other serious

problems." Id (citing I14 F.3d 640 (7thCir. 1997)).

Considering "the totality of the specific circumstances that constituted the conditions,"

Plaintiff s claim has plausible merit. Plaintiff states that the alleged misconduct occurred on

a

J

Case 2:22-cv-00089-Z-BR Document 15 Filed 09/18/23 Page 3 of 5 PageID 88
February 20,2021- which was during "a historical winter event" when "[a] deep freeze impacted

parts of the continental United States, remarkably engulfing the entire state of Texas. Every county

in the state. . . was placed under a Winter Storm Warning, with many experiencing wind chill

values below zero. It was the coldest winter storm for Texas since December 1989."1 And that

Plaintiff s timeline seems to be that he spent "2 Yzhours in the shower under freezing conditions"

and then was made to "walk back barefoot," ECF No. 3 at 9, "those conditions had a mutually

enforcing effect," and posed a greater risk to Plaintiffs safety than would the reverse order.

Palmer,l93 F.3d at 353.

Finally, as to Defendants' objection that Plaintiff "fails to make any attempt to suggest the

Defendants were subjectively aware of conditions that posed a risk to his own health and safety,"

ECF No. 14 at 4, that is refuted by the totality of the circumstances. The prison apparently issued

thermal clothing to protect inmates during a "historical winter event" 

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known colloquially as the

"Snowpocalypse" that resulted in many reported extreme cold exposure-related deaths in this state.

That his thermals were taken and he was also made to "walk back barefoot" "in icy conditions

from I I [building] to 8 [building]", ECF No. 3 at 17) after a prolonged cold shower supports that

Plaintiff was exposed to an unreasonable risk of serious cold-related damage and that officials

were aware of the risk and failed to stake steps to abate it by, for instance 

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at a minimumreturning his thermals and shoes.

Therefore, Defendants' objections to the FCR are unavailing. The Motions to Dismiss

(ECF Nos. 10, l2) are DENIED as to Plaintiff s Eighth Amendment claims against Defendants

Cabrera and Mitchell in their individual capacities and GRANTED in all other respects.

I The Great Texas Freeze: February ll-20,2021, National Oceanic and Atmospheric Administration,

hftps://www.ncei.noaa.gov/news/great-texas-freeze-february-2021 (last visited September 13,2023).

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IT IS SO ORDERET)

September d2023

W J. KACSMARYK

LINITED STATES DISTRICT JUDGE

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