IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHRISTOPHER LAMONT PENN, §

§

Plaintiff, §

§

v. § 2:22-CV-089-Z-BR

§

BOBBY LUMPKIN, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO GRANT IN PART

AND DENY IN PART MOTIONS TO DISMISS

 Plaintiff Christopher Lamont Penn (“Plaintiff”) brings this civil rights action pursuant to 

42 U.S.C. § 1983, claiming his treatment in the Clements Unit of the Texas Department of Criminal 

Justice (“TDCJ”) violated his rights. (ECF 3). By Order dated February 15, 2023, Plaintiff was 

directed to clarify his claims, (ECF 6), which he did on March 7, 2023. (ECF 7). Defendants were 

ordered to respond to the Complaint, which they did by filing Motions to Dismiss, (ECF 10; ECF 

12), which now come before the undersigned for consideration. 

I. INTRODUCTION

In his statement of claim, Plaintiff alleges his “rights were violated” by Defendant 

Cabrera at the Clements Unit of TDCJ, who forced him to walk barefoot, in “freezing 

conditions,” around the facility. (ECF 3 at 4; ECF 7 at 1). Plaintiff further alleges Defendant 

Mitchell forced him to stay in an unheated shower, without sufficient clothes, for an extended 

period of time. (Id.). These events, in Plaintiff’s telling, occurred on February 20, 2021. (ECF 3 

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at 9). Plaintiff also brings claims for inadequate resolution of his claims via TDCJ’s internal 

grievance process. 

The Attorney General of Texas (“OAG”), representing the Defendants in this action, 

moves to dismiss the Complaint on a variety of grounds. (ECF 10; ECF 12). First, as to 

Defendants Lumpkin, Bristow, Cabrera, and Back, OAG argues that Plaintiff failed to allege 

personal involvement, Plaintiff does not possess a due process right in the grievance process, and 

that Defendants hold Eleventh Amendment immunity and qualified immunity. (ECF 10). As to 

Defendant Mitchell, OAG makes the same arguments. (ECF 12). 

II. ANALYSIS

a. Personal Involvement

The undersigned begins with OAG’s Motion on lack of personal involvement grounds. 

When determining whether a plaintiff has stated a claim sufficient to avoid dismissal, courts are 

to accept well-pleaded allegations and construe them in a light most favorable to the nonmovant, but need not accept “conclusory allegations, unwarranted factual inferences, or legal 

conclusions.” Arias-Benn v. State Farm Fire & Cas. Ins. Co., 495 F.3d 228, 230 (5th Cir. 2007). 

Government officials cannot be held responsible for the conduct of their subordinates. Ashcroft 

v. Iqbal, 556 U.S. 662, 676 (2009). Therefore, plaintiffs “must plead that each [g]overnment 

official defendant, through the official’s own actions, has violated the Constitution.” Id.

Plaintiff’s allegations broadly fall into two categories. First, he alleges Defendants 

Mitchell and Cabrera violated his Eighth Amendment rights. Second, he alleges the remaining 

Defendants violated his free speech and due process rights by failing to appropriately act upon 

his grievances and I-60 requests. Whatever the ultimate merits of his allegations, Plaintiff 

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carefully and methodically set out an action or inaction against each Defendant in his original 

Complaint. (ECF 3 at 6–14).

To be sure, if Plaintiff’s allegations against Defendants Lumpkin, Bristow, Back only 

consisted of their failure to appropriately supervise others, they would fail. But that is not the 

case here. As to Defendant Lumpkin, Plaintiff writes, “Mr. Bobby Lumpkin did not respond to 

Plaintiff Penn’s constant unit I-60’s in request to this matter [sic].” (ECF 3 at 10). Plaintiff also 

claims Defendant Bristow “did not properly investigate Plaintiff Penn’s grievance,” and 

Defendant Back stated to him that “no further action is warranted.” (Id.). These statements 

adequately alleges personal involvement to a degree sufficient to survive a Motion to Dismiss.1

b. Due Process Rights in Grievance Process

Having concluded that Plaintiff has stated a personal allegation against each Defendant, 

the undersigned now turns to the grievance process, the basis for Plaintiff’s claims against 

Defendants Lumpkin, Bristow, and Back. It is black letter law in this circuit that prisoner 

plaintiffs do not have a protected liberty interest, rooted in due process rights or otherwise, in 

prison grievance procedures. Mahogany v. Miller, 252 F. App’x 593, 595 (5th Cir. 2007) (citing 

Geiger v. Jones, 404 F.3d 371, 373–74 (5th Cir. 2005)). Therefore, prisoners cannot sustain a 

cause of action alleging some sort of failure on the part of prison officials to act on filed 

grievances in a timely or appropriate fashion. Id. Because that due process complaint forms the 

basis of Plaintiff’s allegations against Defendants Lumpkin, Bristow, and Back, OAG’s Motion 

as to them should be granted and they be dismissed from this action. 

1 OAG also asserts Plaintiff does not state personal involvement as to Defendant Cabrera. (ECF 10 at 3). 

OAG’s position, though, is plainly contradicted by Plaintiff’s Complaint: “On Feb 20, 2021 Defendant Officer 

Cabrera (female) handcuffed Penn and escorted him to 11 bld... [sic].” (ECF 3 at 9). 

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c. Eighth Amendment

The Eighth Amendment does not require comfortable prisons, but it does not tolerate 

inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Extreme conditions of 

confinement, then, can amount to a constitutional violation. Ball v. LeBlanc, 792 F.3d 584, 592 

(5th Cir. 2015). The test to determine whether prison conditions violate the Eighth Amendment 

is two-fold. First, prison conditions must pose an unreasonable risk of serious damage to a 

prisoner’s health. Id. Second, prison officials must have acted with deliberate indifference to the 

risk posed; in fact, the prison official must be aware of the risk and fail to take steps to abate it. 

Id.; Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Momentary and transient discomfort 

does not amount to reflect the denial of a basic human need required under the test. Id. 

With those principles in mind, the undersigned must examine the particulars of Plaintiff’s 

Complaint. Plaintiff is entitled to a liberal reading of his filings. Andrade v. Gonzales, 459 F.3d 

538, 543 (5th Cir. 2006).

Plaintiff alleges he was made to walk in mid-February an unknown distance, barefoot, by 

Defendant Cabrera, after which he was made to stand, nearly naked, in a freezing shower by 

Defendant Mitchell. The exact sequence of events is unclear, with the undersigned left only with 

Plaintiff’s version of events. Tellingly, OAG did not supplement Plaintiff’s facts with its own, 

though this is not needed. The undersigned is obliged to accept well-pled allegations by Plaintiff 

as true at this stage. Arias-Benn, 495 F.3d at 230. 

Prisoners have a right to protection from extreme cold. Palmer v. Johnson, 193 F.3d 346, 

353 (5th Cir.1999) (quoting Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997)). Such exposure 

is a violation of the Eighth Amendment. Id.; see also Withrow v. Heaton, 275 F.3d. 42 (5th Cir. 

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2001). Plaintiff has clearly stated at least a threadbare complaint on that front. After initially 

offering an ipse dixit assertion that Plaintiff’s complaints do not amount to cruel and unusual 

punishment, (ECF 10 at 6), OAG attempts to justify Plaintiff’s treatment by pointing to the 

allegation that Plaintiff was put in the shower for threatening another inmate. (ECF 12 at 4). 

OAG is wrong on both scores. Withrow, the facts of which bear a striking resemblance to those 

here, makes clear that exposure to extreme cold does state a case under the Eighth Amendment. 

275 F.3d. 42. Furthermore, surrounding circumstances, no matter how extreme, do not justify a 

violation of anyone’s constitutional rights. Accordingly, the undersigned finds that Plaintiff has 

stated a claim under the Eighth Amendment as to Defendants Cabrera and Mitchell, the alleged 

perpetrators of the exposure incident. 

1. Qualified Immunity

Even so, Defendants Cabrera and Mitchell may ultimately escape liability if they cloak 

themselves in 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 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 

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when its applicability involves disputed issues of fact. Heaney v. Roberts, 846 F.3d 795, 802 (5th 

Cir. 2017). 

The undersigned, having already concluded that, at least as is appropriate at this stage, a 

constitutional violation occurred, will address the question of whether the right in question, 

namely, to be protected from extreme cold in the context of the Eighth Amendment, was clearly 

established at the time. 

The ‘clearly established’ test does not require that the very action in question has 

previously been held unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The facts do 

not even have to be materially similar. Hope v. Pelzer, 536 U.S. 730, 739 (2002). The central 

concept is one of fair warning – officials must reasonably be on notice regarding the lawfulness 

of their conduct. Id. at 740. 

Though they need not be, the facts in this case are materially similar to those in Withrow, 

where the Fifth Circuit held, in a per curiam opinion, that exposure to the cold is unlawful. 275 

F.3d. 42. That decision was over twenty years old at the time of the alleged conduct in question 

here and, the Fifth Circuit implies by virtue of the unsigned opinion, the conduct was clearly 

unlawful then. Accordingly, the undersigned finds and concludes Defendants Cabrera and 

Mitchell are not entitled to qualified immunity in this matter.2 

2 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 

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2. Eleventh Amendment Immunity

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). Plaintiff’s claims 

against Defendants Cabrera and Mitchell are those that have survived to this point. To the extent 

Plaintiff brings claims in Defendants Cabrera and Mitchell’s official capacity, they are barred by 

the Eleventh Amendment. 

III. RECOMMENDATION

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

States District Judge that the Motions to Dismiss, (ECF 10; ECF 12), be denied as to Plaintiff’s 

Eighth Amendment claims against Defendants Cabrera and Mitchell in their individual capacities 

and granted in all other respects. 

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 

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. 

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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).

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