IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JOSE ESCOBAR, §

§

Plaintiff, §

§

v. § 2:22-CV-082-Z-BR

§

ROBERT ALMANZA, JR., et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO GRANT IN PART AND

DENY IN PART MOTION TO DISMISS

On April 15, 2022, Plaintiff Jose Escobar (“Plaintiff”) tendered to the Court a Complaint 

initiating a civil rights action under 42 U.S.C. § 1983. (ECF 3). Plaintiff was granted permission 

to proceed in forma pauperis by the Court, (ECF 26), and he has subsequently filed an Amended 

Complaint, (ECF 14), to which he has attached additional documents. (ECF 27). The Attorney 

General of Texas (“OAG”) has responded to the Second Order to Answer on behalf of all 

Defendants, (ECF 34), by filing a Motion to Dismiss. (ECF 40). Such Motion now comes before 

the undersigned for consideration. 

I. INTRODUCTION

At all times relevant to this matter, Plaintiff was incarcerated at the Rufe Jordan Unit of 

the Texas Department of Criminal Justice, Correctional Institutions Division (‘TDCJ”). (ECF 14 

at 7). On two separate occasions, Plaintiff filed for Offender Protection Investigations, OPIs, 

alleging personal threats from other inmates. (ECF 40 at 6, 16). Plaintiff also raised the same 

concerns via Offender Grievance Forms, TDCJ’s internal administrative process for inmates to 

contest various aspects of their incarceration. (ECF 3 at 6–9). TDCJ rejected Plaintiff’s OPI 

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 1 of 6 PageID 212
requests as “unsubstantiated” on November 30, 2021 and December 2, 2021. (ECF 3 at 12, 13). 

This rejection resulted in Plaintiff being returned to regular housing on December 22, 2021. (ECF 

40 at 6). 

Plaintiff was assaulted by his cellmate a mere three days later, on December 25, 2021. (Id.). 

Following the incident, when Plaintiff apparently renewed his complaints, TDCJ reversed itself 

and found his concerns to be “substantiated.” (ECF 3 at 14). Plaintiff now brings suit against nine 

TDCJ-affiliated Defendants whom he alleges played some part in that course of events. Although 

he does not so state specifically, it is obvious from the face of the Amended Complaint that Plaintiff 

asserts an Eighth Amendment claim in this action. 

II. ANALYSIS

a. Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

Eleventh Amendment immunity bars suits against state employees in their official capacity. 

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To the extent Plaintiff brings a 

money damages claim against any Defendant in their official capacity, it is barred by the Eleventh 

Amendment. 

b. Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

Although Plaintiff does not specifically state in which capacity he brings his suit against 

Defendants, he is entitled to a liberal reading of his action. Andrade v. Gonzales, 459 F.3d 538, 

543 (5th Cir. 2006). Accordingly, the undersigned will construe the Complaint as stating a cause 

of action against Defendants in their individual capacities; those claims brought against 

Defendants in their official capacity being barred. 

When a complaint is attacked by a motion to dismiss under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure, courts must be able to locate more than labels, conclusions, or a 

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 2 of 6 PageID 213
formulaic recitation of the legal elements supporting a cause. Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 556 (2007). Indeed, factual allegations must rise above the level of speculation. Id.

i. Eight Amendment

The Attorney General moves to dismiss Plaintiff’s individual capacity claims for failure to 

state a claim under the Eighth Amendment. (ECF 40 at 12, 13). In support, it casts the allegations 

against all Defendants as a barebones recitation of the legal elements necessary to sustain a claim 

for failure to protect an inmate in prison. (Id.). 

Prison officials have a constitutional duty to protect prisoners from violence at the hands 

of their fellow inmates. Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006). Under the framework 

announced by our federal Supreme Court in Farmer v. Brennan, an inmate must show that he was 

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

were deliberately indifference to that risk. Id. at 593 (citing Farmer v. Brennan, 511 U.S. 825, 

832–33 (1994). 

The Attorney General’s presentation of Plaintiff’s allegations as thin and unsubstantiated 

is not supported by the record. Instead of “unadorned” and “conclusory” as Defendants would 

have the undersigned believe, Plaintiff’s submissions tell a compelling story. Plaintiff submitted 

multiple grievances to prison administrators requesting, and eventually begging, to be moved to 

safer housing. (ECF 3; 27). His requests were denied as “unsubstantiated.” (ECF 3 at 7). Worse, 

instead of taking Plaintiff’s concerns seriously, prison officials disciplined Plaintiff for refusing 

to cooperate on the issue housing. (ECF 27). This pattern of conduct plainly satisfies the standard 

to state a claim under Farmer and Rule 12(b)(6). See also White v. Fox, 470 Fed. App’x 214, 220 

(5th Cir. 2012) (citing West v. Rowe, 448 F. Supp. 58 (N.D. Ill. 1978), for the principle that a 

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 3 of 6 PageID 214
prisoner’s repeated requests for help placed prison officials on notice for Eighth Amendment 

purposes.). 

While the undersigned, Plaintiff, Defendants, and the Attorney General can now look 

back on the events with hindsight and conclude that Plaintiff’s complaints to officials were 

reasonable because he was in fact assaulted by other inmates, that is not what drives the 

undersigned’s conclusion. Instead, it is the obviousness of Plaintiff’s beliefs about his safety that 

bleeds through the documents before the undersigned – in that he resorted to civil disobedience 

to make his point, even while incarcerated. (ECF 3 at 8). Prison officials even implicitly admit 

this by virtue of their galling reversal on Plaintiff’s safety concerns after he was assaulted.1 In 

short, Plaintiff has certainly raised the specter of deliberate indifference.2

ii. Qualified Immunity

The qualified immunity inquiry for public officers, such as Defendants Cabrera and 

Mitchell, includes two prongs: “(1) whether the officer's alleged conduct has violated a federal 

right and (2) 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.” Davis v. 

Hodgkiss, 11 F.4th 329, 333 (5th Cir. 2021) (quotation marks omitted). “The officer will be entitled 

1 The Attorney General argues that prison officials’ conduct could not possibly be deliberately indifferent 

because they investigated his safety complaints on multiple occasions. (ECF 40 at 14, 15). That officials undertook 

an investigation hardly means they were not deliberately indifferent. The mere existence of an investigation means 

little without factual support or documentation. If the Attorney General can show that an actual, proper investigation 

took place, then it may yet be victorious in this matter, albeit at summary judgment. Bald assertions on this issue are 

not sufficient. 

2 The Attorney General focuses its efforts on pointing out the supposed frailties in Plaintiff’s allegations 

rather than demonstrating which Defendants did not have actual knowledge of Plaintiff’s safety concerns. Because it 

is appropriate at this stage to accept Plaintiff’s well pled allegations as true, the undersigned has no choice but to 

conclude and recommend that no Defendants should be dismissed from this action. If the Attorney General can 

differentiate who had actual knowledge at a later point, in their individual capacities, dismissal may be appropriate 

via summary judgment. 

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 4 of 6 PageID 215
to qualified immunity if no constitutional violation occurred or if the conduct did not violate law 

clearly established at the time.” Id. (quotation marks omitted). A clearly established constitutional 

right is one that is sufficiently clear such that every reasonable officer would have understood that 

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

immunity is a question of law, it must be presented to a jury when its applicability involves 

disputed issues of fact. Heaney v. Roberts, 846 F.3d 795, 802 (5th Cir. 2017). 

The Fifth Circuit characterized the right of prisoners to be free from the violence of their 

fellow inmates as “well established” in 2006. Longoria, 473 F.3d at 592. There can be no 

question then that the law at issue here was clearly established at the time of events that gave rise 

to this action. However, Defendants will be permitted to reassert arguments as to qualified 

immunity at a later date.3

III. RECOMMENDATION

It is the recommendation of the undersigned United States Magistrate Judge to the United 

States District Judge that the Motion to Dismiss, (ECF 40), be granted as to Plaintiff’s official 

capacity claims against Defendants for money damages and be denied in all other respects. 

3 Defendants do not dispute Plaintiff’s account of the events. As such, the undersigned deems them 

admitted. Ramming v. U.S., 281 F.3d 158, 162 (5th Cir. 2001). It is of course true that the ability of Defendants to 

dispute the factual assertions of Plaintiff is limited by their pursuit of a motion under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure. At least one other judge in this district has observed that 12(b)(6) motions are poor 

vehicles for assertions of qualified immunity because they lack the needed factual development that would often be 

helpful. Reitz v. City of Abilene, 2017 WL 3046881, at *12 (N.D. Tex. May 25, 2017) (Frost, J.), report and 

recommendation adopted by 2017 WL 3034317 (N.D. Tex. Jul. 17, 2017). 

In short, the decision by the Attorney General to assert qualified immunity via a motion to dismiss has 

hamstrung the ability of the undersigned to assess its arguments. Further factual development is needed, 

development that is not available in this context. As quoted by Judge Frost, “summary judgment is the right way to 

handle claims of immunity.” Reitz, 2017 WL 3046881, at *13 (quoting Jacobs v. City of Chicago, 215 F.3d 758, 775 

(7th Cir. 2000) (Easterbrook, J., concurring)). Therefore, the question of qualified immunity should remain open at 

this time.

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 5 of 6 PageID 216
IV. INSTRUCTIONS FOR SERVICE

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

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

IT IS SO RECOMMENDED. 

ENTERED August 16, 2023.

* 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 Services 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).

Case 2:22-cv-00082-Z-BR Document 41 Filed 08/16/23 Page 6 of 6 PageID 217