IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CLIFFORD CLARK, §

TDCJ No. 02239054, §

 §

Plaintiff, §

 §

v. § Civil Action No. 7:22-cv-00059-M-BP

 § 

MICHAEL WADDELL and §

BRICE BYRD, §

§ 

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are the Motion for Summary Judgment (the “Motion”) and brief in 

support filed by Defendants Michael Waddell and Brice Byrd (“Defendants”) on July 1, 2024.

ECF Nos. 81-82. Plaintiff did not file a response. Having considered the pleadings, summary 

judgment evidence, and legal authorities, the undersigned RECOMMENDS that Senior United 

States District Judge Barbara M. G. Lynn GRANT Defendants’ Motion (ECF No. 81) and 

DISMISS Plaintiff’s claims. 

I. BACKGROUND

This is an equal protection case brought by Clifford Clark (“Clark”), an inmate in the 

custody of the Texas Department of Criminal Justice (“TDCJ”) at the Smith Unit in Lamesa, 

Texas. ECF Nos. 1, 65. On July 1, 2022, he brought this action pursuant to 42 U.S.C. § 1983, 

alleging a slew of claims against numerous defendants. ECF No. 1. The Court has dismissed all of 

Clark’s claims except for his Fourteenth Amendment equal protection claim against Defendants

in their individual capacity for punitive damages. ECF Nos. 37, 60. 

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Clark alleges that while he was incarcerated at the Allred Unit in Iowa Park, Texas, he was 

“racially profiled and discriminated against due to . . . growing [his] hair because of [his] religious 

beliefs.” ECF No. 1 at 4. TDCJ requires its male inmates to keep their hair “neatly cut” and it 

prohibits “extreme hairstyles” (the “Policy”). ECF No. 82-1. Clark admits that he refused to obey 

the Policy. See ECF Nos. 1; 14 at 2, 7; 53 at 2. But he alleges that Defendants specifically targeted 

“black people . . . who had long hair” in enforcing it. ECF Nos. 8 at 2, 3; 14 at 7 (alleging that 

Defendants targeted “mainly blacks, [Latinos], and gays [sic] with long hair”), 34 (alleging that 

the wardens targeted “blacks with fro’s [sic].”). Additionally, he claims that TDCJ personnel did 

not enforce the Policy against other racial groups. ECF No. 15 at 45 (alleging that many people 

were allowed to grow “mohawks and [other] extreme haircuts, whites and Mexicans with long hair 

[were] not getting disciplined,” and “transexuals [sic] with long hair . . . [were] not harassed or 

targeted”). 

He also alleges that Waddell wrote up disciplinary violations of black people with long 

hair, and Byrd would then “upgrade it to a major case.” ECF Nos. 8 at 2; 13 at 5-6, 4 (“Byrd uses 

Waddell . . . to do his dirty work.”). Clark claims that one such incident occurred on or around July 

27, 2021 (ECF No. 13 at 5), and another occurred on August 3, 2021 (Id. at 6). According to Clark, 

TDCJ always graded disciplinary cases involving hair as minor violations. ECF No. 13 at 5 

(“Everyone knows hair cases are minor.”), 8 (alleging that hair cases are supposed to be minor).

Defendants now move for summary judgment on the grounds that (1) they are entitled to 

qualified immunity; (2) Heck v. Humphrey, 512 U.S. 477 (1994), bars Clark’s claim for 

reinstatement of lost good time credit; and (3) Clark did not establish a Fourteenth Amendment 

Equal Protection claim. ECF No. 82. To date, Clark has filed no response. Under the Local Civil 

Rules, a “response and brief to an opposed motion must be filed within 21 days from the date the 

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motion is filed.” L. Civ. R. 7.1(e). Additionally, the Court ordered Clark to file any response to the 

Motion on or before July 23, 2024. ECF No. 83. The Court warned Clark that failure to file a 

response by July 23 “may result in a ruling on the Motion without a response from” him. Id. The 

Court therefore finds that the Motion is ripe for review. 

II. LEGAL STANDARDS

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper when the 

pleadings and evidence illustrate that no genuine issue exists as to any material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Slaughter v. S. Talc Co., 949 F.2d 

167, 170 (5th Cir. 1991). Disputes concerning material facts are “genuine” if, based on the 

evidence, “a reasonable jury could return a verdict for the nonmoving party.” Douglass v. United 

Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it might affect the outcome of the 

suit under the governing law. Anderson, 477 U.S. at 248; Burgos v. Sw. Bell Tele. Co., 20 F.3d 

633, 635 (5th Cir. 1994). “The movant bears the burden of identifying those portions of the record 

it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. 

Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-

25 (1986)).

Generally, when a movant carries his initial burden, the burden then shifts to the 

nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-

24; Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). Although the 

nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent 

evidence, “conclusory allegations, speculation, and unsubstantiated assertions are inadequate to 

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satisfy the nonmovant's burden[.]” Douglass, 79 F.3d at 1429. Further, merely colorable evidence, 

evidence not significantly probative, or only a scintilla of evidence will not defeat a motion for 

summary judgment. Anderson, 477 U.S. at 249-250, 252; Davis v. Chevron U.S.A., Inc., 14 F.3d 

1082, 1086 (5th Cir. 1994).

Courts view summary judgment evidence in the “light most favorable to the party opposing 

the motion.” Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986); 

Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). And factual controversies are resolved in favor 

of the nonmovant, but only when “both parties have submitted evidence of contradictory facts,” 

thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) 

(en banc). In the absence of any proof, however, the Court does not assume that the nonmovant 

could or would prove the necessary facts. Id. Failure to respond to a summary judgment motion 

“effectively waives” the nonmovant’s “opportunity to offer evidence or legal argument in 

opposition to summary judgment.” Ervin v. Sprint Commc'ns Co. LP, 364 F. App'x 114, 116 (5th 

Cir. 2010).

In making its determination on the motion, the Court “need consider only the cited 

materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c). But “the judge's 

function is not himself to weigh the evidence and determine the truth of the matter but to determine 

whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “[S]ummary judgment is 

appropriate when ‘the nonmoving party has failed to make a sufficient showing on an essential 

element of her case with respect to which she has the burden of proof.’” Edwards v. Oliver, 31 

F.4th 925, 929 (5th Cir. 2022) (quoting Celotex, 477 U.S. at 323).

Courts employ summary judgment cautiously in the context of pro se inmate litigation. See 

Murrell v. Bennett, 615 F.2d 306, 309 (5th Cir. 1980). They must “guard against premature 

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truncation of legitimate lawsuits merely because of unskilled presentations.” Id. at 311 (footnote 

omitted); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se documents should be liberally 

construed). “Indigent prisoners are hampered in their access to the proof necessary to ward off 

summary judgment.” Murrell, 615 F.2d at 310. Accordingly, “on summary judgment, factual 

allegations set forth in a verified complaint may be treated the same as when they are contained in 

an affidavit.” Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003). Further, the inmate's “other 

verified pleadings serve as competent summary judgment evidence.” Falcon v. Holly, 480 F. App'x 

325, 326 (5th Cir. 2012) (citing Hart, 343 F.3d at 765). Under these authorities, the Court views 

Clark’s verified complaint, questionnaire answers, pleadings, and other filings (see ECF Nos. 1, 

8, 13-15) as competent summary judgment evidence.

B. 42 U.S.C. § 1983

The proper vehicle for a Fourteenth Amendment claim is 42 U.S.C. § 1983 (“Section 

1983”). Burns–Toole v. Byrne, 11 F.3d 1270, 1273 n.3 (5th Cir. 1994). Section 1983 creates a 

remedy against any “person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other 

person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution.” 42 U.S.C. § 1983. To properly bring a Section 1983 action, a plaintiff

“must specify the personal involvement of each defendant.” Murphy v. Kellar, 950 F.2d 290, 292 

(5th Cir. 1992). This is because Section 1983 “does not create supervisory or respondeat superior

liability.” Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). Consequently, the plaintiff must 

demonstrate an affirmative link between the constitutional violation and an act of each defendant 

he sues. Murphy, 950 F.2d at 292 n.7.

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To prove a Section 1983 claim, a plaintiff “must first show a violation of the Constitution,” 

and “then show that the violation was committed by someone acting under color of state law.” 

Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008) (footnote and internal quotation marks omitted). 

Defendants do not contest the “under color” requirement. See ECF No. 82. 

C. Qualified Immunity

Qualified immunity “protects government officials ‘from liability for civil damages insofar 

as their conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is an “immunity from suit rather than a mere 

defense to liability[.]” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The Court considers: “(1) whether the facts that a plaintiff has shown establish a violation 

of a constitutional right; and (2) whether the right was clearly established at the time of the 

defendant's alleged misconduct.” Wilkerson v. Goodwin, 774 F.3d 845, 851 (5th Cir. 2014) (citing 

Pearson, 555 U.S. at 232). The second prong involves “two separate inquiries: whether the 

allegedly violated constitutional rights were clearly established at the time of the incident; and, if 

so, whether the conduct of the defendants was objectively unreasonable in the light of that then 

clearly established law.” Hare v. City of Corinth, Miss., 135 F.3d 320, 326 (1998) (emphasis in 

original). To be clearly established, the “contours of the right must be sufficiently clear that a 

reasonable official would understand that what he is doing violates that right.” Anderson v. 

Creighton, 483 U.S. 635, 640 (1987).

“A qualified immunity defense alters the usual summary judgment burden of proof,” 

shifting it “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.” Brown v. 

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Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “On summary judgment, the judge appropriately may 

determine, not only the currently applicable law, but whether that law was clearly established at 

the time an action occurred.” Harlow, 457 U.S. at 818. The Court considers the defense for each 

defendant individually. Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007).

III. ANALYSIS

A. Clark did not overcome Defendants’ qualified immunity. 

Clark bears the burden of rebutting Defendants’ qualified immunity defense. Brown, 623 

F.3d at 253. Although the Court found that at the pleading stage, Clark pleaded facts sufficient to 

“draw a reasonable inference” that Defendants violated a constitutional right that was clearly 

established at the time of the challenged conduct, Edmiston v. Borrego, 75 F.4th 551, 558 (5th Cir. 

2023), cert. denied sub nom. Crandel v. Hall, 144 S. Ct. 1002 (2024), Clark, by not responding to 

Defendants’ Motion, fails to carry his summary judgment burden. See Juarez v. Pizana, No. 3:17-

cv-00368-KC, 2018 WL 7198152, at *8 (W.D. Tex. Dec. 12, 2018) (finding that because the 

plaintiff failed to respond to the defendant’s motion for summary judgment, she did not overcome 

the defendant’s qualified immunity defense) (collecting cases); Fields v. Fisher, No. 1:15-CV241-JCG, 2017 WL 1015011, at *4 (S.D. Miss. Mar. 15, 2017) (The plaintiff “did not respond to 

[the defendants’] Motion for Summary Judgment and [did] not overcome [the] defense of qualified 

immunity.”). Accordingly, Judge Lynn should GRANT the Motion and DISMISS Clark’s claims 

on this ground alone.

B. Heck v. Humphrey bars Clark’s claim for good time. 

Defendants assert that Clark’s claims for reinstatement of lost good time credit survived 

dismissal. ECF No. 82 at 2. Defendants cite to Clark’s answer to the Court’s Second Questionnaire, 

in which he clarified that he was seeking $300,000.00 in compensatory damages, which 

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“cover[ed]” (among other things) the “[t]aking of his good time and chances for parole.” ECF No. 

14 at 9. On December 12, 2023, Judge Lynn accepted the undersigned’s findings, conclusions, and 

recommendation, which recommended that she dismiss Clark’s claim for compensatory damages. 

ECF Nos. 59-60. To the extent that Clark seeks reinstatement of that lost good time credit, 

Defendants argue that an action under Section 1983 is not a proper vehicle for Clark’s equal 

protection challenge because the decision in Heck bars it. ECF No. 82 at 3-4. Defendants submit 

that because Clark lost good time credits at his disciplinary hearing, his sole avenue to challenge 

the hearing was through a habeas corpus proceeding. Id.; see also ECF No. 82-2 at 45.

The Heck doctrine precludes inmates from recovering damages under Section 1983 for an 

allegedly unconstitutional “conviction or sentence” without first showing that the conviction or 

sentence has been invalidated. See 512 U.S. at 486-87. The rationale for the doctrine is that such a 

constitutional challenge to one's conviction or sentence sounds in habeas corpus, not in tort, of 

which Section 1983 is a species. See id. at 483-86. Therefore, Heck bars an inmate's Section 1983 

suit to the extent that a favorable judgment “would necessarily imply the invalidity of his 

conviction or sentence.” Id. at 487. Heck extends to prison disciplinary convictions, including “a 

ruling in a prison disciplinary proceeding that results in a change to the prisoner’s sentence, [such 

as] the loss of good-time credits.” Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (citing 

Edwards v. Balisok, 520 U.S. 641, 644 (1997)); see also Bourne v. Gunnels, 921 F.3d 484, 490 

(5th Cir. 2019) (footnote omitted). Heck bars Clark’s suit to the extent that Clark seeks

reinstatement of lost good time credits or to recover damages for loss of those credits, and he has 

not offered evidence to show that his disciplinary case was invalidated. Accordingly, summary 

judgment is appropriate on this claim.

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C. Defendants are entitled to summary judgment on Clark’s Section 1983 claim. 

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 

deny to any person within its jurisdiction the equal protection of the laws, which is essentially a 

direction that all persons similarly situated should be treated alike.” Duarte v. City of Lewisville, 

Tex., 858 F.3d 348, 353 (5th Cir. 2017) (internal quotation marks omitted) (quoting City of 

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To prevail on a Fourteenth 

Amendment equal protection claim under Section 1983, the plaintiff must show that “(1) he or she 

received treatment different from that received by similarly situated individuals and that (2) the 

unequal treatment stemmed from a discriminatory intent.” Fennell v. Marion Indep. Sch. Dist., 

804 F.3d 398, 412 (5th Cir. 2015) (cleaned up) (quoting Priester v. Lowndes Cty., 354 F.3d 414, 

424 (5th Cir. 2004)). “To establish discriminatory intent, a plaintiff must show ‘that the decision 

maker singled out a particular group for disparate treatment and selected his course of action at 

least in part of the purpose of causing the adverse effect on an identifiable group.’” Id. (quoting 

the same). Merely conclusory allegations of discriminatory intent, “without reference to specific 

facts, will not suffice.’” Id. (quoting the same). A plaintiff may not rest on “his personal belief that 

discrimination played a part” in the defendant’s actions to show discriminatory intent. Woods v. 

Edwards, 51 F.3d 577, 580 (5th Cir. 1995).

Clark accuses TDCJ personnel generally of not enforcing the Policy against other racial 

groups. ECF No. 15 at 45. But he does not specify that Defendants selectively enforced the Policy. 

Thus, Clark has not shown that Defendants subjected him to unequal treatment. Moreover, while 

Clark’s allegations of discriminatory intent were, liberally construed, sufficient to state a claim

under Section 1983, his allegations of Defendants’ motive are too conclusory to survive summary 

judgment. Therefore, Defendants have carried their burden of showing no genuine issue of material 

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fact. Clark did not respond to the Motion, and thus has not carried his burden of showing that a 

fact issue exists for trial on this claim. Accordingly, Judge Lynn should grant summary judgment 

in favor of Defendants.

IV. CONCLUSION

The undersigned therefore RECCOMENDS that Judge Lynn GRANT Defendants’

Motion (ECF No. 81) and DISMISS Clark’s claims. 

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within 14 days after being served with 

a copy. See 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1). In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, 

and recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1417 (5th Cir. 1996) (en banc), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) 

(extending the time to file objections to 14 days).

SIGNED on July 31, 2024.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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