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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHRISTOPHER LAMONT PENN §

TDCJ-CID No. 1847503, §

§

Plaintiff, §

§

v. § 2:22-CV-089-Z-BR

§

BOBBY LUMPKIN, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO 

GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court is a Motion for Summary Judgment (the “Motion”) filed by Defendants 

Marissa Cabrera and Phillip Mitchell. (ECF 22). For the reasons stated herein, the Magistrate Judge 

recommends that the Motion be GRANTED.

I. BACKGROUND

On February 20, 2021, Plaintiff Christopher Lamont Penn (“Penn”), an inmate at the 

Clements Unit of the Texas Department of Criminal Justice, was detained and handcuffed by 

Defendant Marissa Cabrera (“Cabrera”) after he allegedly threatened to harm another inmate. 

(ECF 3 at 9; ECF 25 at 5). Cabrera then escorted Penn from 8 Building to 11 Building, where 

Defendant Phillip Mitchell (“Mitchell”) placed Penn in a shower cell, which doubles as a holding 

cell. (ECF 3 at 9). Mitchell removed Penn’s shoes and clothing, except for his boxer briefs, and 

Penn remained there for approximately two and a half hours under what he describes as “freezing 

conditions.” (ECF 3 at 9). At the end of this two-and-a-half-hour period, Cabrera escorted a 

barefoot Penn back to 8 Building. (Id.) The record does not show what clothing, if any, was 

returned to Penn for his return to 8 Building.

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Defendants state that the shower holding cells in 11 Building are inside and heated. (ECF 

25 at 8). Although 11 Building is not climate controlled, there are heated vents outside the shower 

doors that heat the shower cells. (Id.). The showers customarily double as a holding cell when the 

facility’s pre-hearing detention cells are at capacity. (Id.). As a matter of prison policy, when an 

offender is taken to a pre-hearing detention cell, the inmate is strip searched, after which his 

underwear is returned. (Id.). The prisoner is left in his underwear until he is taken to a different 

cell. (Id.). Defendants state that the distance between 8 Building and 11 Building is 727 feet. (Id.).

In their Motion, Defendants contend they are entitled to qualified immunity because Penn 

cannot show a constitutional violation and, further, he cannot provide sufficient evidence to create 

a fact question as to whether Defendants are entitled to qualified immunity. Penn did not respond 

to the Motion.

II. LEGAL 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 

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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. 

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 

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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 

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

the qualified-immunity framework, however, the government official must “satisfy his burden of 

establishing that the challenged conduct was within the scope of his discretionary authority.” 

Sweetin v. City of Texas City, 48 F.4th 387, 392 (5th Cir. 2022) (quoting Cherry Knoll, L.L. C. v. 

Jones, 922 F.3d 309, 318 (5th Cir. 2019)). For example, in Sweetin, the Fifth Circuit held this “oftoverlooked threshold requirement” was dispositive “because state law does not give a permit 

officer the authority to conduct stops of any kind.” Sweetin, 48 F.4th at 392. In this case, however, 

Penn does not dispute that Defendants were acting within the scope of their duties.

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 

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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 is entitled to qualified immunity. 

C. Plaintiff’s Failure to Respond is Not Dispositive.

When a nonmoving party does not file a response to a motion for summary judgment, the 

failure to respond “does not permit the court to enter a ‘default’ summary judgment.” Boyd v. Fam. 

Dollar Stores of Texas, LLC, No. 3:22-cv-1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 22, 

2023). As the United States Court of Appeals for the Fifth Circuit has explained:

[a] motion for summary judgment cannot be granted simply because there is no 

opposition, even if failure to oppose violated a local rule. John v. La. (Bd. of 

Trustees for State Colleges & Universities), 757 F.2d 698, 709 (5th Cir. 1985). 

The movant has the burden of establishing the absence of a genuine issue of 

material fact and, unless he has done so, the court may not grant the motion, 

regardless of whether any response was filed. Id. at 708. Therefore, if the district 

judge’s decision was to grant summary judgment solely because of a default, such 

decision constituted reversible error.

Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 

1985); see also Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 & n.3 (5th Cir. 1995) (citing 

Hibernia). Moreover, FED. R. CIV. P. 56(e) provides that:

[i]f a party fails . . . to properly address another party’s assertion of fact as required 

by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of 

the motion [and] (3) grant summary judgment if the motion and supporting 

materials—including the facts considered undisputed—show that the movant is 

entitled to it[.]

Therefore, Defendants still must provide sufficient evidence upon which the Court may base a 

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summary judgment. Failure to do so requires the Court to deny the Motion, even if it is unopposed.

III. LEGAL ANALYSIS

To defeat the Motion, Penn must show that Defendants’ 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)).

To establish a constitutional violation based on the conditions of his confinement, a 

prisoner must satisfy a two-part test, consisting of an objective and a subjective component. Davis 

v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998). First, the prisoner must provide evidence of the 

objective component: conditions “so serious as to deprive prisoners of the minimal measure of 

life’s necessities, as when it denies the prisoner some basic human need.” Harper v. Showers, 174 

F.3d 716, 720 (5th Cir. 1999). “[E]xtreme deprivations are required to make out a conditions-ofconfinement claim.” Davis, 157 F.3d at 1006 (internal quotations omitted). “Second, under a 

subjective standard, the prisoner must establish that the responsible prison officials acted with 

deliberate indifference to his conditions of confinement.” Harper, 174 F.3d at 720. To establish 

deliberate indifference, the prisoner must show that the defendants “(1) were aware of facts from 

which an inference of an excessive risk to the prisoner’s health or safety could be drawn and (2) 

that they actually drew an inference that such potential for harm existed.” Bradley v. Puckett, 157 

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F.3d 1022, 1025 (5th Cir. 1998), citing Farmer v. Brennan, 511 U.S. 825, 837 (1994).

For cold temperatures to give rise to a constitutional violation, the plaintiff must show that 

the cold conditions were sufficiently serious that he was denied “the minimal civilized measure of 

life’s necessities.” Johnson, 281 F. App’x at 321 (holding there was not a viable claim for being 

held in extreme heat where plaintiff alleged the temperatures were uncomfortably hot but failed to 

allege any heat-related injuries); Porter v. Werner, No. 1:16CV69-RHW, 2017 WL 599418, at *3 

(S.D. Miss. Feb. 14, 2017) (“Plaintiff’s conclusory assertions that the temperatures were “ice cold” 

or “real cold” [when held in a jail cell for approximately 8 hours during month of August in 

Mississippi] do not rise to the level of severity needed to state an unconstitutional condition of 

confinement”); Young v. McCain, 760 F. App’x 251, 257 (5th Cir. 2019) (finding no Eighth 

Amendment violation when prisoner alleged that “he was sentenced to ‘strip cell/isolation,’ that 

he was deprived of a mattress, sheets, and blankets for 60 days, and that in the fall and winter of 

2015 he was given only ‘a very very light fabric material,’ two undershirts, and two pairs of socks, 

and was not provided with a mattress and bedding between 5:30 a.m. and 8:30 p.m. each day.”).

Cold conditions, however, may give rise to unconstitutional conditions when they are in 

combination with other untenable conditions. See Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 

1999) (“We find that the totality of the specific circumstances presented by [Plaintiff’s] claim—

his overnight outdoor confinement with no shelter, jacket, blanket, or source of heat as the 

temperature dropped and the wind blew along with the total lack of bathroom facilities for fortynine inmates sharing a small bounded area—constituted a denial of the minimal civilized measure 

of life’s necessities.” (internal quotation marks and citation omitted)); Alex v. Stalder, 225 F. 

App’x 313, 314 (5th Cir. 2007) (holding that prisoner’s allegations that “he was held in very cold 

conditions, for an extended period in November and December, wearing nothing but a paper gown 

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during the daytime, and that he was ordered to remain on the cold concrete whenever he attempted 

to sleep on the warmer, metal bunk” stated a “nonfrivolous Eighth Amendment contention”); 

Foulds v. Corley, 833 F.2d 52, 54 (5th Cir. 1987) (noting that, if proven, conditions of solitary 

confinement where inmate alleged he was forced to sleep on floor with rats crawling on him in 

extremely cold temperatures “would contravene the eighth amendment”); Bienvenu v. Beauregard 

Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983) (noting that state pretrial detainee’s 

statements that he was “intentionally subjected ... to a cold, rainy, roach-infested facility with 

inoperative, scum-encrusted washing and toilet facilities sufficiently alleges a cause of action 

cognizable under 42 U.S.C. § 1983 and the eighth and fourteenth amendments.” (citations 

omitted)).

In this case, Defendants provide evidence that Penn was placed in the shower cell from 

approximately 4:15 p.m. to 6:45 p.m. (ECF 25 at 5), assuming that Penn’s Complaint is correct 

that he was in the shower cell for two and a half hours. During that time frame, according to 

documentation provided by Defendants and not disputed by Penn, the outside temperature in 

Amarillo dropped from 56.5 degrees at 4 p.m. to 44.6 degrees at 7 p.m. (Id. at 10). 

Penn provides no evidence that these temperatures were so cold that they constituted a 

violation of his constitutional rights. Johnson, 281 F. App’x at 321. Further, he alleges no other 

conditions that, when combined with the cold temperature, show that he was deprived of “the 

minimal civilized measure of life’s necessities.” Sitting in a presumably cold cell for more than 

two hours and then walking barefoot outdoors for 727 feet in 44-degree weather was no doubt 

unpleasant. However, without more, such transitory discomfort does not rise to the level of an 

“extreme deprivation” such that Penn’s Eighth Amendment rights were violated. Porter, 2017 WL 

599418, at *3.

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Because Penn has failed to provide evidence sufficient to show a constitutional violation, 

there is no evidence that Defendants acted with deliberate indifference regarding Penn’s 

constitutional rights. Specifically, he provides no evidence that either Cabrera or Mitchell knew 

that placing Penn in a heated shower cell for a short period of time would result in an excessive 

risk to Penn’s health or safety. Penn also has not shown that either Cabrera or Mitchell drew the 

inference that a potential for harm existed for Penn due their conduct. See Bradley, 157 F.3d at 

1025 (5th Cir. 1998). As a result, the Court does not reach the second prong of the qualified 

immunity analysis: whether, despite deliberate indifference, Defendants acted reasonably. 

Defendants are entitled to qualified immunity on Penn’s claims and their Motion should be 

granted.

RECOMMENDATION

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

Summary Judgment be GRANTED.

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 17, 2024. 

* NOTICE OF RIGHT TO OBJECT *

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

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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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