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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RONALD COKER, JR., §

 §

Plaintiff, §

 §

v. § Civil Action No. 3:05-CV-005-M (BH)

 §

DALLAS COUNTY JAIL, et al., §

 §

Defendants. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

Pursuant to the District Court’s Standing Order of Reference, filed October 11, 2006, this

case has been referred to the undersigned Magistrate Judge for pretrial management, including the

determination of non-dispositive motions and issuance of findings of fact and recommendations to

the District Court on dispositive motions. Before the Court are the following:

(1) Motion for Summary Judgment of Defendants Dallas County, Texas, Charles Prater,

Anthony Porter, and Eleazar Chapa (“Dallas MSJ”), filed September 2, 2008;

(2) Plaintiff Ronald Coker Jr.’s Motion to Strike Defendant Dallas County, Texas,

Charles Prater, Anthony Porter, and Eleazar Chapa’s Summary-Judgment Evidence

and Brief in Support (“Pl. Mot. Strike”), filed September 22, 2008;

(3) Defendants UTMB, Bowers, and Moody’s Motion for Summary Judgment (“UTMB

MSJ”), filed September 22, 2008;

(4) Objections and Motion to Strike Exhibits Contained in Appendix to Plaintiffs’

Response to Motion for Summary Judgment of Defendants Dallas County, Texas,

Charles Prater, Anthony Porter, and Eleazar Chapa (“Dallas Mot. Strike”), filed

October 20, 2008;

(5) Defendant UTMB’s Motion for Leave to File Answer to Plaintiff’s Second Amended

Complaint Out of Time (“Mot. Leave”), filed October 27, 2008; and 

(6) Defendants UTMB, Bowers, and Moody’s Motion to Strike and Objections to

Plaintiff’s Appendix in Support of His Response to Defendants’ Motion for Summary
1

 Plaintiff was convicted of these charges and is currently incarcerated at the Texas Department of Criminal

Justice (TDCJ) – Institutional Division Jester III Unit, in Richmond, Texas. (See Dallas App. at 32). 

2

 This Court previously discussed Plaintiff’s medical record in detail and provides only a brief summary

here. See Coker v. Dallas County Jail, 2007 WL 3022575, at *2-5 (N.D. Tex. Oct. 17, 2007).

3

 Defendants Charles Prater, Anthony Porter, Eleazar Chapa were Detention Service Officers of the Dallas

County Sheriff’s Department (“DCSD”) assigned to duty in the Jail. (Dallas App. at 278, 281, 284). Defendants

Linda Moody was a registered nurse employed by UTMB to provide medical services at the Jail. (UTMB App. Ex.

F at 3-4). Defendant Steven Bowers, M.D., was employed by UTMB as the medical director of correctional

managed care at the Jail. (Id. Ex. G at 3).

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Judgment (“UTMB Mot. Strike”), filed October 27, 2008.

Based on filings and applicable law, the Court recommends that the motions for summary judgment

be GRANTED in part and DENIED in part. The motions to strike are hereby GRANTED in part

and DENIED in part, and UTMB’s motion for leave to file an amended answer is hereby DENIED.

I. BACKGROUND

A. Factual Background

Plaintiff Ronald Coker, Jr. (“Plaintiff”) was incarcerated at the Dallas County Jail (the “Jail”)

as a pretrial detainee from November 17, 2003 to April 7, 2005, on charges of aggravated robbery

and parole violation. (Dallas App. at 76).1

 He has a history of bipolar disorder, diabetes, heart

disease, hypertension, seizures, and paralysis of his right side. (Dallas App. at 81; Dallas Resp. App.

at 190). Due to his partial paralysis, or hemiparesis, he is confined to a wheelchair.2

 (UTMB App.

Ex. F at 41). 

Plaintiff brings this suit against Defendants Charles Prater, Anthony Porter, Eleazar Chapa,

Dallas County (collectively, the “Dallas County Defendants”), Linda Moody, Steven Bowers, and

the University of Texas Medical Branch (“UTMB”) (with the Dallas County Defendants,

collectively referred to as “Defendants”).3

 He claims that they violated his rights under the United

States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act by: (1) forcing
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him to bathe in a dangerously unsafe and unsanitary shower facility; (2) delaying treatment of

infections to his left leg; and (3) depriving him of his wheelchair for approximately three months

and not providing him a handicapped-accessible shower chair and van. 

Wheelchair-bound inmates such as Plaintiff used a handicapped shower in the Jail’s medical

unit. (Dallas App. at 32-35). Sworn reports by Plaintiff and two other inmates, Vandrick Jones

(“Jones”) and Ronald Stribling (“Stribling”), attest to deplorable conditions in the shower. They

aver that the floor and shower chair were constantly covered with blood, feces, and other human

waste. (Dallas Resp. App. at 39-30, 265, 255-56). Plaintiff also avers that the shower drain

frequently stopped up and that inmates had to wheel through the contaminated water that pooled on

the floor. (Id. at 246-247). Additionally, Plaintiff and Jones aver there was no trash can to dispose

of waste, so the floor was constantly littered with blood- and feces-covered clothing, used urine and

colostomy bags, and dirty diapers. (Id. at 246-47, 265).

Shortly after Plaintiff arrived at the Jail, he began to suffer infections in his lower left leg.

(See Dallas Resp. App. at 192; Answers to Magistrate Judge’s Questionnaire (“MJQ”) (docket #8)).

Specifically, he suffered recurring infections in his left leg, marked by redness, blanching, swelling,

and the development of pus-filled abscesses. (Dallas Resp. App. at 152, 153-157, 162-166, 171-

173). He tested positive for methicillin-resistant Staphylococcus aureus (“MRSA”) and was

diagnosed with cellulitis, a diffuse and subcutaneous inflammation of connective tissue that can lead

to ulceration and abscess. (Id. at 153-61, 174-179, 185-88, 193, 195, 196; see Medical Dictionary,

Nat’l Library of Medicine, available at http://www.nlm.nih.gov (last visited Feb. 1, 2009)). As a

result of these infections, he repeatedly went to Parkland Health & Hospital System (“Parkland”)

for surgery and treatment. See id. His condition improved once he was admitted to Parkland, but
4

 Trazadone is a serotonin modulator prescribed to treat depression. Xanax is the brand name for

alprazolam, a medication prescribed to treat anxiety disorders and panic attacks. Darvocet is the brand name for

acetominophen and propoxyphene, a drug combination prescribed to treat mild to moderate pain. Tylenol #3 is a

prescription form of acetominophen that contains codeine. See Drugs & Supplements, Nat’l Library of Medicine,

available at http://www.nlm.nih.gov (last visited Feb. 1, 2009). 

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upon returning to the Jail each time, it deteriorated until he needed to go to Parkland again. Id.

On October 30, 2004, Jail officials, on an anonymous tip from another inmate, searched

Plaintiff’s wheelchair and uncovered Trazadone, Xanax, Darvocet, Tylenol #3, tweezers, medical

scissors, syringes, a scalpel, an 18-gauge needle, an intravenous flush, and a 5-inch piece of metal.4

(Dallas App. at 76-77; UTMB App. Ex. I at 98; Ex. L at 13-14). Based upon discovery of these

contraband items, the very next day Jail staff placed Plaintiff on administrative custody in a single

cell and confiscated his wheelchair. (Dallas App. at 77; UTMB App. Ex. N at 17, 41). Plaintiff did

not have a wheelchair for approximately three months (the duration of his confinement to a single

cell) although security officers provided him with a wheelchair whenever he left his cell, such as for

clinic appointments and showers. (See Dallas Resp. App. at 216). Plaintiff avers that because he

did not have access to his wheelchair, he was forced to sleep on the floor and crawl around his cell

using his left arm and infected left leg. (Dallas Resp. App. at 114, 120-21). The Defendants do not

deny that Plaintiff did not have his wheelchair for approximately three months while confined to a

single cell. They contend, however, that the wheelchair’s absence did not restrict his movement

because the cell, which measured 8'9" x 6', was small and because he could stand on one leg.

(Dallas App. at 77; UTMB App. Ex. F. at 40, 181). 

B. Procedural History

This case presents a convoluted procedural history. On January 24, 2005, Plaintiff,

proceeding pro se, filed an amended complaint under 42 U.S.C. § 1983 and alleged that various
5

 Defendant Bowers did not move for summary judgment on the issue of qualified immunity for Plaintiff’s

wheelchair deprivation claim asserted against him in the Rule 7(a) reply. Coker v. Dallas County Jail, 2007 WL

4104357, at *1 (N.D. Tex. Nov. 19, 2007).

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individuals violated his constitutional rights by failing to provide adequate medical care, failing to

provide adequate sanitation, depriving him of a wheelchair, and by sexually assaulting him. (See

docket #4). A Magistrate Judge’s Questionnaire was sent to Plaintiff in order to clarify his claims,

and his response was received on March 3, 2005. (Docket #8). After service and upon motion, the

Court also ordered Plaintiff to submit a Rule 7(a) reply to address the defense of qualified immunity

raised by Defendant Bowers. (Docket #122). These three pleadings - the amended complaint, the

responses to the MJQ, and the Rule 7(a) reply - embody Plaintiff’s original claims. Coker, 2007 WL

3022575, at *5; see id. at *1 (District Court determining that Plaintiff alleged wheelchair deprivation

claim against Defendant Bowers in his Rule 7(a) reply).

Because Defendants asserted the defense of qualified immunity in their answers, this Court

ordered Defendants to file a joint motion for summary judgment on the issue of qualified immunity.

(Docket #122). The District Court adopted this Court’s recommendation on October 17, 2007, and

granted the motion in part. The District Court dismissed Plaintiff’s claims of (1) sexual assault

against Defendant Prater; (2) failure to train and supervise against Defendant Bowers; and (3) denial

of medical care against Defendants Bowers and Moody. Coker, 2007 WL 3022575, at *11-17. The

District Court denied Defendants’ motion for summary judgment as to the claims of (1) delay of

medical care against Defendant Moody; and (2) unsanitary conditions against all defendants.5

 Id.

at *21-22. Since Plaintiff’s claims survived summary judgment on the issue of qualified immunity,

the Court sua sponte reconsidered Plaintiff’s prior motion for appointment of counsel. (Docket

#155). After appointing counsel, the Court granted Plaintiff leave to file his Second Amended
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Complaint, which is the live pleading in this case. (Docket #175). 

The Second Amended Complaint (hereinafter, complaint, or “Compl.”) further clarified the

issues and parties before the Court. It alleged violations under (1) 42 U.S.C. § 1983 against the

Dallas County Defendants, UTMB, Moody, and Bowers; and (2) Title II of the Americans with

Disability Act (42 U.S.C. § 12131) and the Rehabilitation Act (29 U.S.C. § 794) against Dallas

County and UTMB. (Compl. at 9-17). The District Court subsequently dismissed the § 1983 claims

and the ADA and Rehabilitation Act claims for lack of a handicapped-accessible shower chair and

van against UTMB on the grounds of sovereign immunity and untimeliness, respectively. Coker

v. Dallas County Jail, 2008 WL 763166 (N.D. Tex. Mar. 19, 2008) (Lynn, J.); (Docket #201; see

docket #194). Accordingly, the following remain:

(1) Claims under the Americans with Disabilities Act and the Rehabilitation Act

against Dallas County and UTMB;

(2) Claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth

Amendments to the United States Constitution by subjecting plaintiff to (a)

unsanitary conditions, (b) wheelchair deprivation (including lack of

handicapped-accessible shower chair and van) against Dallas County

Defendants, Moody, and Bowers; and

(3) Claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth

Amendments to the United States Constitution by failing to provide plaintiff

adequate and prompt medical treatment against Dallas County and Moody.

(Compl. at 9-17; see docket #201). Plaintiff seeks compensatory damages, future medical expenses,

past and future physical pain and suffering, past and future mental anguish, punitive damages,

attorney’s fees, pre- and post-judgment interest, costs of court, and any other relief in law or equity

to which he is entitled. (Compl. at 17). 

The Dallas County Defendants filed their motion for summary judgment on September 2,

2008. (Docket #217). Plaintiff filed his response on September 22, 2008 (docket #225); the Dallas
6

 It is undisputed that UTMB’s deadline to file its answer to the complaint has expired. On October 25,

2007, this Court issued a scheduling order that established November 21, 2007, as the deadline for the parties to

amend their pleadings. (Docket #171, at 1). Plaintiff filed his complaint on November 9, 2007 (docket #175), but

UTMB never filed an answer. (See docket sheet). 

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County Defendants did not file a reply. Defendants UTMB, Moody, and Bowers (collectively,

“UTMB Defendants”) filed their motion for summary judgment on September 22, 2008. (Docket

#228). Plaintiff filed his response on October 14, 2008 (docket #234); the UTMB Defendants filed

their reply on October 20, 2008. (Docket #237). The parties also filed objections and motions to

strike supporting evidence (dockets ##224, 238, 244), and Defendant UTMB filed a motion for leave

to file an answer to Plaintiff’s complaint. (Docket #243). After adequate time for responses and

replies, the issues are now ripe for review. 

II. MOTION FOR LEAVE TO FILE ANSWER

The Court first considers Defendant UTMB’s motion for leave to file an out-of-time answer

to Plaintiff’s complaint.6

 (Mot. Leave at 1, 4). Plaintiff does not oppose allowing UTMB to file an

answer out of time as long as the answer does not raise any affirmative defenses not included in

prior responsive pleadings. (Mot. Leave Resp. at 1). UTMB seeks to amend its pleadings out-oftime to assert an affirmative defenses not previously raised, lack of exhaustion of administrative

remedies.

Federal Rule of Civil Procedure 16(b) governs the amendment of pleadings after a deadline

in a scheduling order has expired. Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221,

227 (5th Cir. 2005); Am. Tourmaline Fields v. Int’l Paper Co., 1998 WL 874825, at *1 (N.D. Tex.

Dec. 7, 1998) (Fitzwater, J.). “Only upon the movant’s demonstration of good cause to modify the

scheduling order will the more liberal standard of Rule 15(a) apply to the district court’s decision

to grant or deny leave.” S&W Enters., L.L.C. v. South Trust Bank of Ala., N.A., 315 F.3d 533, 536
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(5th Cir. 2003). In S&W Enterprises, the Fifth Circuit considered the following four factors to

decide whether an untimely motion for leave to amend should be granted: (1) the explanation for

the failure to timely move for leave to amend; (2) the importance of the amendment; (3) the potential

prejudice in allowing the amendment; and (4) the availability of a continuance to cure such

prejudice. Id. (citing Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.

1997)).

UTMB’s motion makes no apparent effort to establish good cause or even set forth the

relevant standard. (See Mot. Leave). The only factor mentioned is the explanation for failure to

timely move for leave to amend, which UTMB characterizes as “an oversight by the undersigned

counsel, who believed that an answer on behalf of UTMB had been filed.” (Id. at 4). Under the

good cause standard, inadvertence or oversight by counsel is “tantamount to no explanation at all.”

S&W Enters., 315 F.3d at 536; Am. Tourmaline, 1998 WL 874825, at *1. This factor therefore

favors Plaintiff. As for the second factor, the importance of the amendment, UTMB’s failure to

assert exhaustion of administrative remedies raises the possibility of waiver for this affirmative

defense. (See Part IV.B, infra). Exhaustion, however, was not the only argument raised in favor of

granting summary judgment since UTMB also contends that Plaintiff failed to state an actionable

claim under Title II of the ADA and the Rehabilitation Act. (UTMB MSJ at 6-8). The second factor

therefore slightly favors UTMB. With regards to the third factor, potential prejudice in allowing the

amendment, it favors Plaintiff because he has already gone through the time and expense of

responding to UTMB’s motion for summary judgment. See In re Enron Corp., 2007 WL 207028,

at *3 (S.D. Tex. Jan. 23, 2007) (considering time and expense of preparing a motion to dismiss as

prejudicial to opponent of an untimely motion for leave to amend). The fourth factor, the
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availability of a continuance, also favors Plaintiff since a continuance is unlikely. The case has been

pending for almost four years and is far along in the litigation process. 

Considering the four factors together, the Court finds that UTMB did not meet its burden to

establish good cause for leave to file its untimely answer to Plaintiff’s complaint. S&W Enters., 315

F.3d at 536. UTMB’s motion for leave to file an amended answer to assert new affirmative defenses

is therefore DENIED. 

III. MOTIONS TO STRIKE EVIDENCE

A. Plaintiff’s Objections and Motion to Strike

Plaintiff filed a motion to strike portions of the Dallas County Defendants’ summary

judgment evidence on September 22, 2008.

1. Exhibit 4: Sweet Affidavit and Jail Records

a. Double Hearsay

Plaintiff first objects to pages 100-26, 141-58, and 173 of the Dallas County Defendants’

appendix and pages 76-77 of the Sweet Affidavit because they contain inadmissible hearsay within

hearsay. (Pl. Mot. Strike at 2). The portions of the Sweet Affidavit and jail records to which

Plaintiff objects consist of incident reports (pages 100-26), disciplinary board proceedings (141-58),

a note from the jail infirmary (173), and statements by the records custodian based on the

information therein (76-77). The incident reports, disciplinary board proceedings, and infirmary

note contain statements from unidentified inmates, Jail officers and jail staff, and remarks allegedly

made by Plaintiff himself.

For hearsay within hearsay to be admissible, each part of the combined statement must

conform to an exception to the hearsay rule. Fed. R. Evid. 805. Dallas County Defendants assert
7

While the statements in the jail records made by unidentified inmates are outside sources of information

that would ordinarily be excluded from the exception, see Wilson, 939 F.2d at 271, the Court does not consider the

statements to have been offered for the truth of the matter, but rather, as operative facts showing why the Jail staff

conducted their investigations. Plaintiff’s objections to these statements are therefore OVERRULED.

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that the records are admissible because they fall within the business records and official records

hearsay exceptions. (Pl. Mot. Strike Resp. at 4) (citing Fed. R. Evid. 803(6) and (8)). Prison

systems, such as the Jail, lie within Federal Rule of Evidence 803(6)’s conception of a business.

Payne v. Collins, 986 F.Supp. 1036, 1058 n.47 (E.D. Tex. 1997) (citing Wheeler v. Sims, 951 F.2d

796, 802 n.5 (7th Cir. 1992)). “Double hearsay in the context of a business record exists when the

record is prepared by an employee with information supplied by another person. If both the source

and the recorder of the information, as well as every other participant in the chain producing the

record, are acting in the regular course of business, the multiple hearsay is excused.” Wilson v.

Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991). If the source of the information is an

outsider, the outsider’s statement must fall within another hearsay exception to be admissible. Id.

The jail records recount investigations performed by the Jail staff or incident reports by jail

staff or medical personnel. Although the impetus for some of the investigations were reports from

unidentified inmates, Jail staff investigated the anonymous reports and summarized their own

findings in the jail records. (See e.g., Dallas MSJ App. at 104, 107, 115). Since employees of the

Dallas County Sheriff’s Department and its medical staff acted in the regular course of business in

preparing the jail records, instances of multiple hearsay are excused by the business records

exception.7

 Wilson, 939 F.2d at 271. Plaintiff’s statements in the jail records are also admissible

since they are admissions by party-opponent and are not hearsay. Fed. R. Evid. 801(d)(2).

Accordingly, Plaintiff’s objections to these jail records are OVERRULED and the motion to strike

statements from employees of the Dallas County Sheriff’s Department, its medical staff, and
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Plaintiff is DENIED. 

b. Conclusory Statements

Plaintiff next objects to the Sweet affidavit because portions contain unsupported conclusory

statements that are not credible and invade the province of the jury. (Pl. Mot. Strike at 2). The

statements to which Plaintiff objects are as follows: Plaintiff’s wheelchair was withheld due to

security concerns; DCSD informs inmates of the two step grievance procedure through receipt of

a handbook and closed circuit television; the summary of the steps of the grievance procedure; and

the assertion that no evidence shows deliberate indifference to Plaintiff’s medical needs, a risk of

harm or injury from the conditions of confinement, or denial of benefits based on Plaintiff’s

disability. (Id. at n.2, objecting to Dallas MSJ App. at 77-78). 

Affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient

to either support or defeat a motion for summary judgment. Galindo v. Precision Am. Corp., 754

F.2d 1212, 1216 (5th Cir. 1985). Such unsupported conclusory statements in an affidavit should be

stricken from the record. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). The statement

about Plaintiff’s wheelchair being withheld for security concerns is based upon the reason set forth

in jail disciplinary records attached to the Sweet affidavit. Since the statement is not about an

ultimate issue, and is not a conclusory fact or conclusion of law, it is admissible. See Galindo, 754

F.2d at 1216. Plaintiff’s objection to this statement in the Sweet affidavit is therefore

OVERRULED and the motion to strike is DENIED. 

The two statements about the grievance procedure are not based upon any of the jail records

attached in support. There is no supporting document showing the ways in which Dallas County

allegedly informs inmates of the grievance procedure. The Court notes that even if there were such
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a document, it would not establish that Plaintiff was advised of the grievance procedure. Likewise,

there is no supporting document setting forth the steps of the grievance procedure in place at the

Dallas County Jail. See Part III.A.d (striking 2005 version of handbook). Since the two statements

about the grievance procedures set forth conclusory facts unsupported by the record, they are

inadmissible. Salas, 980 F.2d at 305. Plaintiff’s objections to these two statement are

SUSTAINED, and the motion to strike is GRANTED. 

Finally, the assertion about there being “no evidence” of deliberate indifference attests to an

ultimate issue in this case and is insufficient to support a motion for summary judgment. Galindo,

754 F.2d at 1216. It is therefore inadmissible. Plaintiff’s objection to this statement is

SUSTAINED and the motion to strike is GRANTED.

c. Irrelevant Records

Plaintiff next objects to the relevance of the records contained on pages 82-91 (offense

sheets), 100-26 and 141-58 (incident reports), and 127-39 (medication refusal forms). (Pl. Mot.

Strike at 3). 

The Court did not consider the offense sheets in deciding the motions for summary judgment.

Accordingly, Plaintiff’s objection to pages 82-91 of Defendant’s appendix is OVERRULED and

the motion to strike is DENIED as moot. See Continental Casualty Co. v. St. Paul Fire & Marine

Ins. Co., 2006 WL 984690, at *1 n.6 (N.D. Tex. Apr. 14, 2006) (Fitzwater, J.) (overruling as moot

objections to evidence that is not considered by the court in deciding motion for summary

judgment).

As for the remaining records, all relevant evidence is admissible. Fed. R. Evid. 402.

“Relevant evidence” means evidence that has a tendency to make the existence of a consequential
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fact more or less probable than it would be without the evidence. Fed. R. Evid. 401. The incident

reports and medication refusal forms all pertain to the medical care Plaintiff received while detained

in the Jail, his conditions of confinement, or the reasons for the confiscation of his wheelchair.

These records are therefore relevant to Plaintiff’s claim and are admissible. Plaintiff’s objections

to pages 100-26, 127-39, and 141-58 are OVERRULED, and the motion to strike these exhibits is

DENIED. 

d. Documents not Produced

Finally, Plaintiff objects to the inclusion of the Inmate Handbook on pages 227-40 of the

appendix because it was not produced and there is no evidence that it is the same handbook Plaintiff

allegedly received while at the jail. (Pl. Mot. Strike at 4). The handbook in Dallas County

Defendant’s appendix was revised in February 2002; the handbook produced at Plaintiff’s June 3,

2008 deposition was revised in May of 2005. (See Dallas MSJ App. at 227; Pl. Mot Strike App. at

2, 13). The Dallas County Defendants do not dispute that they failed to produce the 2002 version

to Plaintiff. (Pl. Mot. Strike Resp. at 5).

Under the Federal Rules of Civil Procedure governing disclosures and discovery, if a party

fails to provide information requested during discovery, the party is not allowed to use that

information on a motion, at a hearing, or at a trial unless the failure was substantially justified or is

harmless. Fed. R. Civ. P. 37(c). In deciding whether a failure to produce is harmless and thus

whether to strike evidence, the Court considers the following four factors: (1) the importance of the

evidence; (2) the potential prejudice of including the evidence; (3) the possibility of curing such

prejudice by granting a continuance; and (4) the explanation for the party’s failure to disclose. Tex.

A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003); Jacobs v.
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Tapscott, 2006 WL 2728827, at *12 (N.D. Tex. Sep. 25, 2006) (Fitzwater, J.) (applying Fifth

Circuit’s harmless error analysis for abuse of discretion to determine whether a district court should

strike evidence). 

With regards to the first factor, the 2002 version is important to the Dallas County

Defendants because the grievance procedures it contains are those on which they base their motion

for summary judgment. The 2002 version is not critical, however, because the parties do not dispute

the mechanics of the two-step grievance procedure. This factor therefore slightly favors the Dallas

County Defendants. As for the second factor, Plaintiff contends that due to the failure to timely

provide the 2002 version, he was unable to ask questions during depositions about the policies and

procedures in place during his detention in the Jail, which ended on April 7, 2005. (Pl. Mot. Strike

Reply at 4; see Dallas App. at 76). Instead, he had to ask questions about policies established in

May of 2005, almost a month after he left the Jail. The Dallas County Defendants assert there is no

prejudice because there is no material difference between the two versions, (Pl. Mot. Strike Resp.

at 5), but there are some differences. The second factor therefore favors Plaintiff. Third, a motion

for continuance is unlikely since the case has been pending for almost four years and is far along in

the litigation process. This factor favors Plaintiff. With regards to the fourth factor, the Dallas

County Defendants contend that Plaintiff did not specifically request the 2002 version. (Pl. Mot.

Strike Resp. at 5). Under the Federal Rules of Civil Procedure, a party has a duty to disclose all

documents it may use to support its claims or defenses. Fed. R. Civ. P. 26(a)(1)(A)(ii). The

grievance procedure in place at the Jail most certainly falls within the documents to be disclosed

since the Dallas County Defendants rely upon it for their affirmative defense of exhaustion. Thus,

their contention that Plaintiff did not specifically request the 2002 version is irrelevant.
8

 The Court notes that Plaintiff relies on the concurring opinion from First United Financial Corp. v. U.S.

Fidelity & Guaranty Co., 96 F.3d 135, 141 (5th Cir. 1996) to support his contention that the affidavit should be

stricken because it fails to include an indication of Dr. Skinner’s reasoning process. (Pl. Mot. Strike at 5; Pl. Mot.

Strike Reply at 5). The majority in First United Financial struck an expert opinion because it went beyond the scope

of expertise, not because it failed to describe the reasoning process. 96 F.3d at 136. Additionally, the majority

explicitly found the concurring opinion “both unnecessary and unhelpful.” Id.

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Additionally, Plaintiff disputes this assertion. In his reply, he states that he submitted several

requests for production seeking “documents sufficient to describe the manner in which inmates were

required to assert grievances,” “documents setting forth the Jail’s official disciplinary policies and

procedures,” and “all documents the County relied on to support its defenses.” (Pl. Mot. Strike

Reply at 3). These specific requests for production were sufficiently detailed to request the 2002

version the Dallas County Defendants now rely upon in their motion for summary judgment. 

Considering the four factors, the first factor slightly favors the Dallas County Defendants and

the second, third, and fourth factors favor Plaintiff. The Court therefore concludes that the Dallas

County Defendants’ failure to produce the 2002 handbook, which detailed the grievance procedures

in place during Plaintiff’s detention at the Jail, was not harmless. Tex. A&M Research Found., 338

F.3d at 402. Accordingly, Plaintiff’s objection to pages 227-40 of Defendant’s Exhibit is

SUSTAINED and the motion to strike is GRANTED. 

2. Exhibit 5: Skinner Affidavit

Plaintiff objects to portions of the affidavit of Walter Skinner, M.D. because they contain

improper conclusions that invade the province of the jury.8

 (Pl. Mot. Strike at 4 (objecting to Def.

App. at 243-44)). The Dallas County Defendants designated Dr. Skinner as an expert witness to

provide expert testimony about Plaintiff’s medical condition and treatment during his confinement

in the Jail. (See docket #200). Plaintiff objects to portions of the affidavit averring that there is no

evidence in the approximately 800 pages of medical records to support Plaintiff’s allegations of
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constitutional deprivations.

Expert witnesses may perform two roles: (1) they may explain evidence to a fact finder, and

(2) they may act as the source of evidence for a fact finder. Salas, 980 F.2d at 305 (citing In re Air

Crash Disaster at New Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)). The standard in deciding

whether an expert’s opinion should be admitted is stated in Rule 702: whether the testimony will

“assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702;

Salas, 980 F.2d at 305 (citing 3 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence

¶702[01] (1992)). “Stated more directly, the trial judge ought to insist that a proffered expert bring

to the jury more than the lawyers can offer in argument.” Air Crash at New Orleans, 795 F.2d at

1233.

Dr. Skinner’s affidavit contains only his conclusion concerning counsel’s factual and legal

arguments. It does it cite to any of the underlying facts contained in the medical record. Nor does

it provide any indication of how Dr. Skinner, in his expert opinion, determined that Plaintiff received

adequate and timely care for his afflictions. Additionally, the affidavit does not address the evidence

supporting Plaintiff’s claims identified in this Court’s previous order denying qualified immunity

for the individual defendants. See Coker, 2007 WL 3022575, at *13-22. Nevertheless, because the

affidavit is not being presented to a jury, the Court will not strike the affidavits but instead will only

consider it to the extent it complies with Rule 702. Anderson v. Dallas County, Texas, 2007 WL

1148994, at *5 (N.D. Tex. Apr. 18, 2007) (Fish, C.J.). Plaintiff’s objections to the Skinner Affidavit

are therefore OVERRULED and the motion to strike is DENIED. 

3. Exhibits 7, 8, and 9: Prater, Porter, and Chapa Affidavits

Finally, Plaintiff objects to the affidavits of three DCSD officers assigned to duty in the Jail.
- 17 -

(Pl. Mot. Strike at 5). Specifically, Plaintiff objects to the testimony concerning responsibility for

cleaning and sanitation because it contradicts the officers’ earlier deposition testimony without

explanation. Plaintiff contends these are sham affidavits that cannot be used in support of summary

judgment. Id. Merely because there is a discrepancy between deposition testimony and the

deponent’s later affidavit does not require the Court to disregard the affidavit. Kennett-Murray

Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). Such a discrepancy in an affidavit, however, must

only explain certain aspects of a deposition, not contradict it. S.W.S. Erectors, Inc. v. Infax, Inc.,

72 F.3d 489, 496 (5th Cir. 1996).

During their depositions, the officers testified that they made sure the handicapped shower

was clean before and after each use. (Pl. Mot. Strike App. at 19-21, 25-27, 32, 34, 35, 37).

Defendant Chapa testified more specifically that Jail officers supervised the trustees while they

cleaned, and that if the shower was not clean, he would personally clean it. (Id. at 32, 36). Yet it

in their affidavits, each of the officers testified that “all cleaning and sanitation services in the Dallas

County Jail were performed by the jail trustees in the areas where Plaintiff was confined and not by

me.” (Dallas App. at 279, 282, 285). These affidavits contradict prior sworn statements in the

depositions without explanation and are therefore inadmissible. S.W.S. Erectors, 72 F.3d at 496.

Accordingly, Plaintiff’s objections to these exhibits as they pertain to who is responsible for

cleaning and sanitation services are SUSTAINED and the motion to strike is GRANTED. 

B. Dallas County Defendants’ Objections and Motion to Strike

On October 20, 2008, the Dallas County Defendants presented a laundry list of objections

to five of Plaintiff’s exhibits. (See Dallas Mot. Strike) (objecting to Dallas Resp. App. Ex. L, M,

N, Q, and R). They made no effort whatsoever to identify the portions of the exhibits to which each
9

 The UTMB Defendants also objected on the grounds of lack of personal knowledge and hearsay. In an

earlier ruling on the same affidavit, the Court overruled these objections and will not reconsider its prior ruling. See

Coker, 2007 WL 3022575, at *8.

- 18 -

objection applies, nor did they offer any explanation to substantiate their objections. Such general

objections do not comply with the requirements of the Federal Rules of Evidence, and the Court will

not ferret through Plaintiff’s lengthy appendix in search of objectionable statements. Tucker v. SAS

Inst., Inc., 462 F.Supp.2d 715, 722 (N.D. Tex. 2006) (Fish, C.J.) (denying motion to strike because

movant offered only vague assertions and a list of challenged paragraphs). Consistent with the

practice of other judges in this district, the Dallas County Defendants’ objections are

OVERRULED and the motion to strike is DENIED. See e.g., Shepherd v. Dallas County, 2008

WL 656889, at *6 (N.D. Tex. Mar. 6, 2008) (Fitzwater, C.J.) (overruling objections because Dallas

County failed to point to inadmissible components); Palo v. Dallas County, 2007 WL 2140590, at

*8 (N.D. Tex. July 26, 2007) (Fitzwater, J.) (same). 

C. UTMB Defendants’ Objections and Motion to Strike

Defendants UTMB, Bowers, and Moody (collectively, the “UTMB Defendants”) filed a

motion to strike portions of Plaintiff’s summary judgment evidence on October 27, 2008. 

1. Stribling Affidavit

The UTMB Defendants first object to the affidavit of Ronald Stribling on the grounds that

it fails to state a specific time frame and contains impermissible expert testimony.9

 (UTMB Mot.

Strike at 1-3). 

Citing to Richardson v. Oldham, the UTMB Defendants contend that the affidavit is not

competent summary judgment evidence because Mr. Stribling averred that he witnessed events over

the course of a two year period. (UTMB Mot. Strike at 2) (citing 12 F.3d 1373, 1378-79 (5th Cir.
- 19 -

1994)). In Richardson, the Fifth Circuit found no abuse of discretion when the district court

determined an affidavit was insufficiently specific because the affiant could not identify the season

in which an allegedly illegal search of his home took place. 12 F.3d at 1378. In this case, Mr.

Stribling does not describe a single event, but rather conditions of the handicapped shower that

persisted over a two year period or events that occurred multiple times. Richardson is therefore

distinguishable from the case before the Court, and the Court finds that the Stribling affidavit

provides competent summary judgment evidence about the conditions of the Jail. 

Without elaboration, the UTMB Defendants also move to strike paragraphs 6-8, 10, and 13-

15 as conclusory and paragraphs 13 and 14 as containing impermissible expert testimony. (UTMB

Mot. Strike at 3). These paragraphs describe the conditions of the handicapped shower or

procedures for ensuring its sanitation. They are neither conclusory nor present expert testimony. 

Accordingly, the UTMB Defendants’ objections to the Stribling Affidavit are

OVERRULED and the motion to strike is DENIED. 

2. Jones Affidavit

The UTMB Defendants similarly object to the affidavit of Vandrick Jones because it is not

based on personal knowledge, is insufficiently specific, and contains unsupported speculation,

inadmissible hearsay, and expert testimony. (UTMB Mot. Strike at 3-4). 

In his affidavit, Mr. Jones avers that he is “personally acquainted with the facts herein

stated,” and he provides an account of the handicapped shower’s typical condition and his own

account of the Jail staff’s knowledge of the shower’s typical condition. (See UTMB Resp. App. at

251-54). He also avers that he was incarcerated at the jail with Plaintiff and witnessed many of the

events or circumstances that gave rise to this action. To the extent that Mr. Jones’s affidavit
- 20 -

provides a personal account of the handicapped shower’s typical condition and the Jail staff’s

knowledge of the shower’s typical condition, this testimony is sufficiently specific and constitutes

relevant summary judgment evidence. To the extent that Mr. Jones’s affidavit contains statements

that constitute hearsay, expert testimony, or are conclusory, the Court does not consider such

statements in reaching its conclusions on the UTMB Defendants’ motion for summary judgment.

Salas, 980 F.2d at 304 (holding that a court should not strike an entire affidavit when portions are

inadmissible); see also Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 383 (5th Cir. 1987)

(holding that a court should disregard the inadmissible portions of a challenged affidavit).

Accordingly, the UTMB Defendant’s objections to Mr. Jones’s affidavit are OVERRULED and

the motion to strike is DENIED.

3. Plaintiff’s 2007 Declaration

Finally, the UTMB Defendants object to Plaintiff’s 2007 Declaration in its entirety because

it is based upon unsupported speculation, subjective beliefs, impermissible expert testimony, and

inadmissible hearsay. (UTMB Mot. Strike at 4). The UTMB Defendants do not identify which

portions of the 42 page declaration are improper. (See id.; see UTMB Resp. App. at 195-237). As

with the Dallas County Defendants’ objections, the Court will not ferret through the 42 page

declaration in search of objectionable statements. See Tucker, 462 F.Supp.2d at 722. To the extent

that the 2007 declaration contains inadmissible statements, the Court does not consider such

statements in reaching its conclusions. Salas, 980 F.2d at 304. Accordingly, the UTMB

Defendant’s objections to Plaintiff’s 2007 affidavit are OVERRULED and the motion to strike is

DENIED.
- 21 -

IV. SUMMARY JUDGMENT MOTIONS

A. Legal Standard

Summary judgment is appropriate when the pleadings and evidence on file show that no

genuine issue exists as to any material fact and that the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

The movant makes a showing that there is no genuine issue of material fact by informing the court

of the basis of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

discovery and disclosure materials on file, and affidavits, if any, must demonstrate that no genuine

issue of material fact exists. Fed. R. Civ. P. 56(c).

Once the movant makes this showing, the non-movant must then direct the court’s attention

to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.

Celotex, 477 U.S. at 324. To carry this burden, the non-movant “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the

evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S.

at 249.

While all of the evidence must be viewed in a light most favorable to the motion’s opponent,

id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)), neither conclusory

allegations nor unsubstantiated assertions will satisfy the non-movant’s summary judgment burden,
10 Although the Defendants raise exhaustion as their second and third bases for summary judgment, (see

Dallas MSJ Br. at 10; UTMB MSJ Br. at 9), the Court addresses this argument first since exhaustion under the

PLRA is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 740-41 (2001). 

- 22 -

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian v. Ehrman, 954

F.2d 1125, 1131 (5th Cir. 1992). Summary judgment in favor of the movant is proper if, after

adequate time for discovery, the motion’s opponent fails to establish the existence of an element

essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at

322-23. “The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports his or her claim.” Ragas

v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

B. Exhaustion of Administrative Remedies Defense10

Defendants assert that they are entitled to summary judgment because there is no genuine

issue of fact that Plaintiff failed to exhaust administrative remedies as required by 42 U.S.C. §

1997(e)(a), the Prison Litigation Reform Act (“PLRA”). (Dallas MSJ Br. at 10-11; UTMB MSJ Br.

at 9-10).

Failure to exhaust administrative remedies under the PLRA is an affirmative defense. Jones,

549 U.S. at 216; Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Defendants therefore have the

burden on summary judgment to establish that Plaintiff did not make use of the available

administrative remedies at the Jail. See Crescent Towing & Salvage Co., Inc. v. M/V Anax, 40 F.3d

741, 744 (5th Cir. 1994) (affirmative defense requires the movant on summary judgment to establish

each element of defense as a matter of law) (citing Celotex, 477 U.S. at 322-23); Fontenot v. Upjohn

Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (where the movant bears the burden of proof on an issue,

he must establish all of the essential elements of a claim to warrant judgment in his favor).
- 23 -

1. Waiver by Defendant UTMB

As a preliminary matter, the Court considers Plaintiff’s contention that Defendant UTMB

waived this affirmative defense by failing to assert it in its first responsive pleading. (UTMB Resp.

at 12). Affirmative defenses such as exhaustion of administrative remedies must be set forth in a

responsive pleading. Fed. R. Civ. P. 8(c); Jones v. Bock, 549 U.S. 199, 216 ( 2007) (exhaustion

under the PLRA is an affirmative defense). A defendant’s post-claim motions are “pleadings” if

they respond to the substance of the allegations. U.S. v. Burzynski Cancer Res. Inst., 819 F.2d 1301,

1307 (5th Cir. 1987). 

Defendant UTMB never filed an answer (see Part II, supra), and it did not assert exhaustion

as a defense in the Rule 12(b)(6) motion it filed on December 6, 2007. (See docket #182). UTMB’s

December 6, 2007 motion to dismiss set forth the affirmative defenses of immunity and statute of

limitations but not lack of exhaustion of administrative remedies. (Docket #182, 4-7). Because the

first motion to dismiss addressed the substance of Plaintiff’s allegations, it was a responsive pleading

under Rule 7(a). Burzynski, 819 F.2d at 1307 (motion that first raised affirmative defense of

immunity was the first responsive pleading). An affirmative defense may not be raised on a motion

for summary judgment unless that motion is the first responsive pleading to the substance of the

allegations. Id. Since Defendant UTMB failed to raise exhaustion in its December 6, 2007 motion

to dismiss, under Burzynski it may not now raise the affirmative defense.

As a general rule, failure to assert an affirmative defense in a responsive pleading results in

waiver. See Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92 (5th Cir. 2001). Noncompliance can be

excused if the defendant raises the issue at a “pragmatically sufficient time” and there is no prejudice

to the plaintiff. Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir.
- 24 -

2007). Courts that have considered the issue of what constitutes a “pragmatically sufficient time”

have declined to establish a bright line; some have found more than one year before trial to be

pragmatically sufficient time, others have found issues first raised during trial to be made in a

pragmatically sufficient time. Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 860 (5th Cir. 2000)

(more than a year before trial); Lucas v. U.S., 807 F.2d 414, 418 (5th Cir. 1986) (at trial). 

Plaintiff contends that UTMB’s year-long delay in raising exhaustion is not a pragmatically

sufficient time. (Mot. Leave Resp. at 3). Although all of the pretrial deadlines have expired, no trial

date has been set. (See docket #171, at 3). Thus, if the Court were to use the amount of time

remaining before trial as a marker for what constitutes a pragmatically sufficient time, ample time

remains. As for prejudice, Defendant UTMB did not raise the affirmative defense of exhaustion

until the instant motion, but all of the other defendants raised it in their answers to Plaintiff’s

complaint. (See docket #179 at 4; #185 at 8). Plaintiff therefore cannot claim to be surprised by

Defendant UTMB’s assertion of exhaustion. See Bayou Fleet, 234 F.3d at 860. Additionally,

Plaintiff had the opportunity to respond to Defendant UTMB’s argument in his response to the

instant motion for summary judgment. Briggs v. Dallas Area Rapid Transit, 2003 WL 21804264,

at *2 n.1 (N.D. Tex. Mar. 14, 2003) (Godbey, J.). Given that a trial date has not yet been set, that

the other defendants raised exhaustion more than a year ago, and that Plaintiff had the opportunity

to respond to UTMB’s arguments in the instant motion, UTMB’s noncompliance for failing to assert

exhaustion in its first responsive pleading is excused. Arismendez, 493 F.3d at 610. Accordingly,

UTMB did not waive its affirmative defense of exhaustion.

2. Exhaustion

The Court now turns to Defendant’s claim that Plaintiff failed to exhaust administrative
- 25 -

remedies as required by the PLRA. (Dallas MSJ Br. at 10-11; UTMB MSJ Br. at 9-10).

The PLRA provides that “[n]o action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. §

1997(e)(a)(2003). The “PLRA’s exhaustion requirement applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion

under the PLRA is mandatory, and the requirement is strictly construed. See Days v. Johnson, 322

F.3d 863, 866 (5th Cir. 2003) (per curium). Exhaustion is a prerequisite to suit even when the

prisoner seeks relief not available in grievance proceedings such as money damages. See Booth v.

Churner, 532 U.S. 731, 740-41 (2001). The Court does not “inquire whether administrative

procedures satisfy minimum acceptable standards of fairness and effectiveness;” prisoners simply

“must exhaust such administrative remedies as are available, whatever they may be.” Alexander v.

Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (citations and internal quotation marks omitted).

“The exhaustion requirement may be subject to certain defenses such as waiver, estoppel, or

equitable tolling.” Days, 322 F.3d at 866. Additionally, a district court must afford a prisoner an

opportunity to show that he has either exhausted the available administrative remedies or that he

should be excused from this requirement. Miller v. Stanmore, 636 F.2d 986, 991 (5th Cir. 1981).

One such excuse is when administrative remedies are inadequate because prison officials have

ignored or interfered with a prisoner’s pursuit of an administrative remedy. Holloway v. Gunnell,

685 F.2d 150, 154 (5th Cir. 1982). 

In this case, the parties do not dispute the mechanics of the Jail’s two-step procedure used
- 26 -

by inmates to present grievances. The first step requires the inmate to submit a grievance to any

staff member. After noting the date and time the grievance is received, the staff member delivers

the grievance to the on-duty shift supervisor who, in turn, forwards it to the Grievance Board for

review. Upon receipt of a written decision from the Grievance Board, the inmate has five days to

initiate the second step of the grievance procedure, which is the submission of a written appeal to

the Inmate Grievance Appeal Board. The Appeal Board reviews all documents submitted in

connection with the appeal and then issues a decision. An inmate must pursue his grievance at both

steps in order to exhaust his administrative remedies. Johnson v. Johnson, 385 F.3d 503, 515 (5th

Cir. 2004) (citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)).

Defendants assert that Plaintiff failed to exhaust his available administrative remedies

because he never filed a step 2 grievance with the Inmate Grievance Appeal Board. (Dallas MSJ

Br. at 11; UTMB MSJ Br. at 10). In support of this assertion they cite to Plaintiff’s grievance

submissions, which contain 11 step 1 grievances but no step 2 grievances. (See Dallas MSJ App.

Ex. H; UTMB MSJ App. Ex. N). The UTMB Defendants also cite to Plaintiff’s deposition, during

which he acknowledged receipt of responses to each of the step 1 grievances presented to him at the

deposition. (UTMB MSJ App. Ex. H at 51-53). By pointing the Court to the absence of any step

2 grievances, Defendants met their initial summary judgment burden to show there is no genuine

issue of material fact that Plaintiff failed to exhaust his administrative remedies. See Celotex, 477

U.S. at 323-25. 

The burden now shifts to Plaintiff to direct the court’s attention to evidence in the record

sufficient to establish that there is a genuine issue of material fact for trial. Id. at 324. Plaintiff

contends there is evidence in the summary judgment record showing that jail officials prevented him
- 27 -

from knowing the grievance procedure. (Dallas Resp. at 21-24; UTMB Resp. at 14-17). The Jail

purports to notify inmates about the grievance procedure in three ways. First, inmates are supposed

to be given a copy of the Inmate Handbook explaining the grievance procedure when they are

booked into the Jail. (UTMB Resp. App. at 47-48). Plaintiff, however, testified that he never

received a copy of the Inmate Handbook (id. at 66), and Defendants failed to identify anything in

their supporting evidence to show that Plaintiff received a copy of the handbook. In fact, Chief

Deputy Edgar McMillian, testifying for Dallas County, confirmed that Plaintiff’s “buff card”

contained no signature acknowledging receipt of the handbook as he believed was required by

standard procedure. (Id. at 49-50); see Alexander, 351 F.3d at 630 (evidence that inmate received

handbook showed grievance procedure was available). Second, the Inmate Grievance Board’s

procedures specify that it “will notify the Grievant in writing, on all grievances in which no action

is taken, that the Grievant may make written notice of appeal regarding the finding.” (UTMB Resp.

App. at 263). In violation of its own procedures, none of the step 1 grievance responses received

by Plaintiff say anything about an appeal; they simply deny the request. (See UTMB App. Ex. N

at 5, 11, 17, 22, 26, 32, 37, 42, 48, 55, 60). Third, Chief McMillian testified that Jail rules and

regulations, including the grievance procedure, occasionally are posted on closed-circuit television.

(UTMB Resp. App. 50-51). Plaintiff testified that he did not know the rules and regulations were

sometimes available on the Jail’s closed-circuit television. (UTMB MSJ App. Ex. H at 56). While

lack of knowledge or ignorance about a grievance procedure does not excuse exhaustion, see Fisher

v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), a question about whether the grievance procedures

actually were posted on closed-circuit television remains because in addition to Plaintiff, Defendant

Chapa, an officer at the jail, testified that he never saw the grievance procedure played on a closed-
- 28 -

circuit television. (UTMB Resp. App. at 59).

Plaintiff further contends that jail officials ignored his complaints and thereby frustrated his

attempt to file a step 2 grievance. During his deposition, Plaintiff testified that he filed grievances

that were never answered and did not appear in his file. (UTMB Resp. App. at 66, 69). Chief

McMillian could not say with certainty that all submitted grievances were reviewed by the grievance

review board. (Id. at 43-44). As for the step 2 appeals, when asked specifically whether he appealed

any of the unfavorable step 1 responses, Plaintiff testified, “I redone them [the grievances] again,

you know, because I felt like I wasn’t satisfied, you know. I wasn’t satisfied with what they said

and I tried to write it again and sometime I wouldn’t get the answer back.” (Id. at 68). The

appendix supports Plaintiff’s belief that he appealed unfavorable step 1 grievance determinations.

He submitted multiple grievances regarding his wheelchair deprivation claim (see e.g., UTMB App.

Ex. N at 14, 27), and one medical staffer returned a wheelchair deprivation grievance to the

investigating office without answering the allegations because the general complaint had been

“answered over and over again.” (Id. at 25). Additionally, on at least one occasion, the jail staff

considered what is clearly an appeal of an unfavorable step 1 grievance to be a new step 1 grievance,

not a step 2 appeal. (See id. at 35-37).

In the UTMB Defendants’ reply, they contend that Plaintiff’s ignorance of the Jail’s

grievance procedures does not excuse him from failing to file a step 2 appeal. (UTMB Reply at 4)

(citing Aguirre v. Dyer, 233 Fed.Appx. 365 (5th Cir. 2007) (unpublished) (citing Fisher, 174 F.3d

at 714). The issue in this case, however, is the Defendants’ alleged failure to make any reasonable

effort to inform him of the procedures as well as their alleged actions that frustrated his attempts to

file both initial grievances and appeals. Plaintiff identified specific evidence in the record that could
11 Defendants Prater, Porter, and Chapa also move for summary judgment on Plaintiff’s ADA and

Rehabilitation Act claims. (See Dallas MSJ Br. at 7). Plaintiff, however, only raised these claims against

Defendants Dallas County and UTMB, not the individual defendants. (See Compl. at 9-10). Moreover, the ADA

and Rehabilitation Acts only provide for relief against public entities, which do not include individual defendants. 

See 42 U.S.C. § 12131; 29 U.S.C. § 794; Meredith v. Nowak, 2008 WL 4808905, at *4 n.4 (E.D. La. Oct. 31, 2008)

(citing cases). Accordingly, their motion for summary judgment should be DENIED as moot.

- 29 -

lead a reasonable jury to conclude that the grievance process in place at the Jail was not an available

remedy and that Plaintiff should be excused from the exhaustion requirement. Holloway, 685 F.2d

at 154; Arnold v. Goetz, 245 F. Supp.2d 527, 537 (S.D.N.Y. 2003) (“[a] grievance procedure which

is not made known to inmates is not an ‘available’ administrative remedy”). Since genuine issues

of material fact remain, Defendants’ motion for summary judgment on the issue of exhaustion

should be DENIED. Celotex, 477 U.S. at 322-23.

C. Americans with Disability Act and Rehabilitation Act Claims

Defendants Dallas County and UTMB also move for summary judgment on Plaintiff’s claims

under Title II of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.11 (Dallas

MSJ Br. at 7; UTMB MSJ Br. at 6). 

Title II of the ADA provides that “no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42

U.S.C. § 12132; Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). The language of Title II

generally tracks the language of Section 504 of the Rehabilitation Act of 1973; in fact, the statute

specifically provides that “the remedies, procedures and rights” available under Section 504 shall

be the same as those available under Title II. 42 U.S.C. § 12133; Hainze, 207 F.3d at 799. Under

both the ADA and the Rehabilitation Act, a claimant must demonstrate that: (1) he is a qualified

individual with a disability; (2) he was excluded from participation in, or denied benefits of,
- 30 -

services, programs, or activities by a public entity; and (3) that such exclusion, denial of benefits,

or discrimination was by reason of his disability. See Lightbourn v. County of El Paso, 118 F.3d

421, 428 (5th Cir. 1997).

None of the parties dispute that Plaintiff is a qualified individual with a disability or that

Dallas County and UTMB are public entities subject to the provisions of the ADA and

Rehabilitation Act. Defendants Dallas County and UTMB move for summary judgment on the

grounds that there is an absence of evidence to establish that (1) Plaintiff was excluded from

participating in, or denied benefits of, services, programs or activities at the Jail and (2) such

exclusion was due to discrimination on account of Plaintiff’s disability. (Dallas MSJ Br. at 9;

UTMB MSJ Br. at 7). UTMB also moves for summary judgment on grounds that Plaintiff cannot

show UTMB or any of its employees deprived him of his wheelchair. (UTMB MSJ Br. at 7). 

1. Exclusion from Services, Programs, or Activities

Plaintiff’s pending ADA and Rehabilitation Act claims are based on the undisputed fact that

he was confined in a single cell and deprived of the use of his wheelchair for approximately three

months. Under the ADA, discrimination includes a defendant’s failure “to make reasonable

modification in policies, practices, or procedures when the modifications are necessary to avoid

discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7); Melton v. Dallas Area Rapid

Transit, 391 F.3d 669, 673 (5th Cir. 2004). Because public entities must make modifications that

are necessary to avoid discrimination on the basis of disability, liability does not depend on evidence

of purposeful discrimination. See Patterson v. Kerr County, 2007 WL 2086671, at *7 (W.D. Tex.

July 18, 2007). A plaintiff simply must show that “but for” his disability, he would not have been

deprived of the services or benefits he desired. See id. (citing Wisconsin Cmty. Servs., Inc. v. City
- 31 -

of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006)). In the prison context, failure to accommodate the

needs of a disabled prisoner is discrimination if it causes the disabled prisoner to suffer more pain

and punishment than non-disabled prisoners. See McCoy v. Tex. Dep’t of Crim. Justice, 2007 WL

2331055, at *7 (S.D. Tex. Aug. 9, 2006) (citing U.S. v. Georgia, 546 U.S. 151, 157 (2006) (“[I]t is

quite plausible that the alleged deliberate refusal of prison officials to accommodate [the inmate’s]

disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all

other prison programs constituted ‘exclu[sion] from participation in or . . . deni[al of] the benefits

of’ the prison’s ‘services, programs, or activities.’”).

Defendants Dallas County and UTMB contend that although Plaintiff did not have access

to a wheelchair while in his single cell, there is no evidence that he was not deprived of any services,

programs, or activities because whenever he left his cell for any reason, jail staff provided him with

a wheelchair. (Dallas MSJ Br. at 9; UTMB MSJ Br. at 8). These Defendants also contend that

Plaintiff’s 8'9" x 6' cell was small enough that he could move about on his own without use of his

wheelchair. (Dallas MSJ Br. at 9). In support of these contentions, they cite to Plaintiff’s deposition

testimony where he stated the jail staff provided him with a wheelchair whenever he left his cell.

(Dallas App. at 77; UTMB App. Ex. H at 29:2-4). Based on this deposition testimony, Defendants

Dallas County and UTMB have met their initial summary judgment burden. Celotex, 477 U.S. at

317.

The burden now shifts to Plaintiff to direct the court’s attention to evidence in the record

sufficient to establish that there is a genuine issue of material fact for trial. Id. at 324. Plaintiff

testified in his deposition that his wheelchair would have fit in his single cell, and that without it,

he was forced to sleep on the floor, crawl to the toilet, and crawl to the window to get his food and
- 32 -

medication. (UTMB Resp. App. 38, 156-57). Given this evidence, a reasonable jury could find that

the deprivation of Plaintiff’s wheelchair subjected him to more pain and punishment than

non-disabled prisoners. See U.S. v. Georgia, 546 U.S. at 157; McCoy, 2007 WL 2331055, at *7.

A reasonable jury could also conclude that the deprivation of Plaintiff’s wheelchair excluded him

from participating in, or denied benefits of, services, programs or activities at the Jail. See id.

Accordingly, a genuine issue of material fact exists.

2. Discrimination on Account of Plaintiff’s Disability

Defendants Dallas County and UTMB also contend that there is no evidence to show that

the decision to withhold Plaintiff’s wheelchair was on account of his disability. (Dallas MSJ Br. at

9; UTMB MSJ Br. at 8). Rather, the decision to withhold his wheelchair was based on legitimate

security concerns because Plaintiff allegedly concealed contraband in it. On October 30, 2004,

based on a tip from an anonymous inmate, two officers at the Jail searched Plaintiff’s wheelchair

and discovered Trazadone, Xanax, Darvocet, Tylenol #3, tweezers, medical scissors, syringes, a

scalpel, an 18-gauge needle, an intravenous flush, and a 5-inch piece of metal. (UTMB App. Ex.

I at 98; Ex. L at 13-14). Based upon discovery of these contraband items, Jail staff placed Plaintiff

on administrative custody in a single cell and confiscated his wheelchair. (Id. Ex. N at 17, 41). By

identifying evidence in the record showing that Jail staff confiscated Plaintiff’s wheelchair due to

the discovery of contraband, Defendants Dallas County and UTMB have met their initial burden to

show that they did not deprive Plaintiff of his wheelchair on account of his disability. 

The burden now shifts to Plaintiff to identify evidence that the wheelchair confiscation

occurred on account of his disability. Plaintiff contends that the issue is not whether Defendants

Dallas County and UTMB had a valid reason for confiscating the wheelchair, but rather whether
- 33 -

reasonable accommodations were made for his disability as required under the ADA and

Rehabilitation Act. (UTMB Resp. at 10). For instance, Defendants could have confiscated the

contraband without depriving Plaintiff of his wheelchair for three months. In other words, the

reason for confiscating Plaintiff’s wheelchair is a fact issue that must be weighed along with other

facts about whether the accommodations were reasonable. Other courts that have considered this

issue have found that safety and security concerns are fact issues relevant to the question of whether

accommodations were reasonable. Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996);

Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999). Accordingly, the determination of whether

the confiscation of Plaintiff’s wheelchair and his confinement to a single cell unequipped for

disabled inmates for three months was justified under the circumstances is a question of fact.

3. UTMB’s Involvement in Wheelchair Deprivation

Finally, Defendant UTMB contends it was not responsible for confiscating Plaintiff’s

wheelchair. (UTMB MSJ Br. at 7). In support, it cites to an incident report from the Jail in which

Officer Olubode physically confiscated the wheelchair. (UTMB App. Ex. L at 13-14). According

to UTMB, since the Jail employs Officer Olubode, it was not responsible for confiscating Plaintiff’s

wheelchair. (See UTMB MSJ Br. at 7-8; UTMB Reply at 1). 

In response, Plaintiff cites to evidence in the record that the decision to provide a wheelchair

to an inmate was a medical decision and that UTMB was the ultimate authority on medical issues.

(UTMB Resp. App. Ex. A at 5-6 (stating that the decision whether an inmate needed or was to

receive a wheelchair was a medical decision); Ex. F at 89 (Defendant Bowers stating that physicians

could prescribe wheelchairs to disabled inmates); Ex. R at 300 (“Decisions and actions regarding

the health care services provided to jailees are the sole responsibility of qualified health care
- 34 -

personnel and will not be compromised for security reasons”)). Additionally, Plaintiff’s grievances

concerning the deprivation of his wheelchair were classified as medical grievances and sent to

medical staff for resolution. (See e.g. id. Ex. I at 178-79). From this evidence, Plaintiff has shown

that genuine issues of material fact remain as to whether UTMB was responsible for confiscating

and returning Plaintiff’s wheelchair.

In summary, Plaintiff has shown that genuine issues of material fact remain regarding

whether he was excluded from participating in, or denied benefits of, services, programs or activities

at the Jail and whether such exclusion was due to discrimination on account of his disability.

Accordingly, Defendants Dallas County and UTMB’s motions for summary judgment on Plaintiff’s

ADA and Rehabilitation Act claims should be DENIED. Celotex, 477 U.S. at 322-23.

D. 42 U.S.C. § 1983 Claims

Defendants next move for summary judgment on Plaintiff’s claims arising under 42 U.S.C.

§ 1983 for alleged unsanitary conditions of confinement, failure to provide prompt and adequate

medical treatment, and failure to accommodate his disability through deprivation of his wheelchair,

including failing to provide a handicapped-accessible shower chair and van. (Compl. at 10-17).

Section 1983 “provides a federal cause of action for the deprivation, under color of law, of

a citizen’s ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United

States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, Plaintiff

must allege facts that show (1) he has been deprived of a right secured by the Constitution and the

laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg

Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th

Cir. 1999). Section 1983 reaches only those constitutional injuries caused by persons acting under
12 Although Defendant Dallas County raises limitations as its final basis for summary judgment (see Dallas

MSJ Br. at 14-15), the Court considers this issue before addressing the merits of Plaintiff’s § 1983 claims since

timeliness is a jurisdictional prerequisite to suit. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.

2001).

- 35 -

color of state law. Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980). 

1. Statute of Limitations Defense by Dallas County12

Defendant Dallas County initially contends that Plaintiff’s § 1983 claims are barred by the

statute of limitations. (Dallas MSJ Br. at 14). Plaintiff left the Jail on April 11, 2005, but did not

effect service on Defendant Dallas County until November 15, 2007. (Docket # 177). According

to Defendant Dallas County, Plaintiff’s claims are barred because he failed to exercise due diligence

and did not effect service until seven months after the two-year limitations period expired. 

Plaintiff contends his claims against Dallas County are not barred because they relate back

to his original complaint, which was filed on January 5, 2005, during his confinement in the Jail and

before the limitations period began to run. Under Rule 15(c), an amendment to a pleading relates

back to the date of the original pleading when “the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). When an amendment changes the party or the naming of

the party against whom a claim is asserted, it relates back to the original pleading only if Rule

15(c)(1)(B) is satisfied and if, “within the period provided by Rule 4(m) for serving the summons

and complaint, the party to be brought in by amendment: (i) received such notice of the action that

it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the

action would have been brought against it, but for a mistake concerning the proper party’s identity.”

Fed. R. Civ. P. 15(c)(1)(C). 

This Court previously determined that Plaintiff’s original claims were embodied in his
- 36 -

January 24, 2005, amended complaint (docket #4), his response to the MJQ questionnaire (docket

#8), and his Rule 7(a) reply (docket #123). See Coker, 2007 WL 3022575, at *5 n.6. The only

claims not stated in the original complaint were those for lack of a handicapped accessible shower

chair and van. See Coker v. Dallas County Jail, 2008 WL 763166, at *1 (N.D. Tex. Mar. 19, 2008)

(Lynn, J.) (dismissing ADA and Rehabilitation Act claims for lack of handicapped shower chair and

van against Defendant UTMB as barred by limitations because not stated in the original complaint

and did not relate back). Plaintiff stated the remaining § 1983 claims as original claims, therefore

satisfying the requirements of Rule 15(c)(1)(B). 

As for Plaintiff naming Defendant “Dallas County” instead of “Dallas County Jail,” Plaintiff

served the Jail and the individual Dallas County Defendants within the Court-granted extensions of

the 120-day time period prescribed by Rule 4(m). (See docket ##19, 24-27). Dallas County had

notice of this action because it shares counsel and therefore an identity in interest with the original

defendants. Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (notice imputed to the newly

added city defendant through shared counsel with the original defendant officer). Furthermore,

Defendant Dallas County knew or should have known that in filing suit against the Dallas County

Jail, Plaintiff would file suit against the county itself. See Chancery Clerk of Chickasaw County,

Miss. v. Wallace, 646 F.2d 151, 160 (5th Cir. 1981) (allowing plaintiff who had sued the wrong

parties to amend his pleadings on appeal); Darby v. Pasadena Police Dep’t, 939 F.2d 311, 315 (5th

Cir. 1991) (holding that the city defendant was not prejudiced by the plaintiff’s failure to file suit

against the proper legal entity because the city received notice conducted its case exactly as it would

have had the plaintiff sued the proper entity).

In summary, Dallas County’s motion for summary judgment on the basis of limitations
13 Although Defendants Porter, Prata, and Chapa raise qualified immunity as their fourth grounds for

summary judgment (see Dallas MSJ Br. at 12-13), the Court considers the issue prior to their motion on the merits of

Plaintiff’s § 1983 claims since immunity is a threshold question. See Anderson v. Creighton, 483 U.S. 635, 646 n.5

(1987).

- 37 -

should therefore be GRANTED as to the lack of handicapped accessible shower chair and van

claims but DENIED in all other respects.

2. Qualified Immunity Defense for Individual Defendants13

The individual defendants move for summary judgment on Plaintiff’s § 1983 claims against

them in their individual capacities on the basis of qualified immunity. (Dallas MSJ Br. at 12-13;

UTMB MSJ Br. at 11-13).

A governmental employee who is sued for a constitutional violation pursuant to § 1983 may

assert the affirmative defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir.

1992). Qualified immunity protects government officials performing discretionary functions from

suit and liability for civil damages to the extent their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Whether the conduct

of which the plaintiff complains violated clearly established law is essentially a legal question.

White, 959 F.3d at 544.

The plaintiff has the burden to show the inapplicability of an asserted qualified immunity

defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam).

To satisfy that burden, the plaintiff must present specific facts to defeat the claimed immunity.

Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2003); Wicks v. Miss. State Employment Servs., 41 F.3d

991, 995 (5th Cir. 1995).
- 38 -

a. Constitutional Violation

 The threshold question to a determination of whether Defendants are entitled to qualified

immunity is whether, taken in the light most favorable to the Plaintiff, the facts alleged show a

violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 200 (2001). The Court need

inquire no further if no constitutional right would have been violated based on the facts alleged by

Plaintiff and taken in the light most favorable to him. Id. at 201.

A pre-trial detainee’s treatment and his conditions of confinement flow from the substantive

due process guarantees of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535

(1979). The Fifth Circuit recognizes, however, that “there is no significant distinction between

pretrial detainees and convicted inmates concerning basic human needs such as medical care.”

Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). As a result, the Fifth Circuit applies “the

same standard for assessing the constitutional claims of both pretrial detainees and state inmates”

under the Eighth Amendment. Id. The Eighth Amendment to the Constitution of the United States

proscribes cruel and unusual punishments. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The

amendment requires that conditions of confinement be humane, and prison officials must ensure that

inmates receive adequate food, clothing, shelter, and medical care as well as take reasonable

measures to guarantee their safety. Id. A prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement absent a showing of

“deliberate indifference” to a substantial risk of serious harm to an inmate. Id. at 828, 834. To

establish deliberate indifference, an inmate must show that the prison official (1) was “aware of the

facts from which an inference of excessive risk to the prisoner’s health or safety could be drawn,”

and (2) “actually drew an inference that such potential for harm existed.” Estelle v. Gamble, 429
- 39 -

U.S. 97, 106 (1976); see also Farmer, 511 U.S. at 837 (noting that deliberate indifference under the

Eighth Amendment occurs only where a prison official subjectively knows of and disregards a

substantial risk to the inmate’s health or safety). Deliberate indifference “describes a state of mind

more blameworthy than negligence” but is “satisfied by something less than acts or omissions for

the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at

835. Deliberate indifference is “an extremely high standard to meet.” Domino v. Texas Dept. of

Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).

In this case, none of the individual defendants dispute that the rights they allegedly violated

were clearly established. (See UTMB MSJ Br. at 13-15 and 19-20 (wheelchair deprivation and

unsanitary conditions); Dallas MSJ Br. at 5-7 (same); see also Ruiz v. Estelle, 503 F.Supp. 1265,

1345 (S.D. Tex. 1980) (disabled inmates must be provided with physical accommodations necessary

because of their disabilities, including adequate toilet and shower facilities, as well as wheelchairs

and other mobility aids), aff’d in part and rev’d in part, 679 F.2d 1115 (5th Cir. 1982), amended in

part, vacated in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103; Gates v. Cook,

376 F.3d 323, 338 (5th Cir. 2004) (citing Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999))

(filthy cell conditions may constitute an Eighth Amendment violation); Reed v. Dallas County

Sheriff’s Dept., 2004 WL 2187104, at *4 (N.D. Tex. Sept. 28, 2004) (citing Sanford v. Brookshire,

879 F. Supp. 691, 693 (W.D. Tex. 1994))(“[P]rison authorities may not withhold from prisoners the

basic necessities of life, which includes reasonably adequate sanitation”)).

b. Objective Reasonableness

 If the Court can find a constitutional violation under the favorable view of the submissions,

the next sequential step is to determine whether the violated constitutional right was clearly estab-
- 40 -

lished within the specific context of the case. Saucier, 533 U.S. at 201. “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

1.) Unsanitary Conditions

With regard to the individual Dallas County Defendants, the Court previously denied

summary judgment on the basis of qualified immunity for on Plaintiff’s claim of unsanitary

conditions. Coker, 2007 WL 3022575, at *21-22. Because this determination has already been

made, the Court should not reconsider its prior ruling.

As for Defendants Moody and Bowers, they assert they are entitled to qualified immunity

as to this claim because their actions were objectively reasonable. (UTMB MSJ Br. at 19-20).

Plaintiff contends their actions were not objectively reasonable because they had knowledge of the

filthy conditions in the handicapped shower, knew of the risk such conditions posed, and yet did

nothing. (UTMB Resp. at 28) (citing UTMB Resp. App. at 82-86, 98, 100-03; see Part IV.D.3.c.,

infra). Given the evidence in the record regarding the medical staff’s responsibility for controlling

infection and ensuring sanitary conditions at the Jail, and viewing it in the light most favorable to

Plaintiff as the Court must, the Court cannot find that the alleged failure to address the deplorable

conditions in the shower was objectively reasonable.

Defendant Bowers and Moody assert in their reply that Plaintiff’s lay opinion is insufficient

to overcome Dr. Mayhall’s expert opinion that there was no evidence that Plaintiff received care in

an unsanitary or unsafe environment. (UTMB Reply at 6; see UTMB App. Ex. B, at ¶5). Dr.

Mayhall contends there is no evidence of unsanitary conditions, but his February 23, 2007 affidavit

does not acknowledge the findings of the February 2005 Health Management Associates report,
- 41 -

which found deplorable sanitary conditions in the Jail, including the presence of MRSA.

Additionally, Dr. Mayhall’s assertion of “no evidence” is contradicted by the sworn affidavits of

several inmates, including Plaintiff, attesting to the presence of human waste, blood, and discarded

colostomy bags in the handicapped shower. While these inmates are not medical doctors, it does

not take a licensed physician to say that the presence of human waste and blood in a shower is

unsanitary. 

Accordingly, the motion of Defendants Bowers and Moody for summary judgment on the

basis of qualified immunity from Plaintiff’s claim of unsanitary conditions should be DENIED.

Saucier, 533 U.S. at 202; see Coker, 2007 WL 3022575, at *22 (denying qualified immunity

summary judgment motion of the individual Dallas County Defendants on Plaintiff’s claim of

unsanitary conditions) (citing Gates, 376 F.3d at 338).

2.) Wheelchair Deprivation

Defendants Porter, Prater, and Chapa contend they are entitled to qualified immunity because

they were not personally involved in the decision to take or withhold Plaintiff’s wheelchair. (Dallas

MSJ Br. at 13). As discussed in Part IV.D.5.a, infra, Plaintiff identified evidence in the record to

rebut this assertion. Given the fact issues concerning their involvement, it would not be reasonable

to deprive a wheelchair-bound inmate of his means of mobility. By doing so, Plaintiff was forced

to crawl on the ground using his left arm and infected left leg to attend to basic human needs. Such

conduct on the part of Defendants Prater, Porter, and Chapa clearly would be unlawful to a

reasonable officer. Saucier, 533 U.S. at 202. The individual Dallas County Defendant’s motion for

summary judgment on the grounds of qualified immunity for Plaintiff’s wheelchair deprivation

claim should be DENIED.
- 42 -

Defendants Bowers and Moody assert they are entitled to qualified immunity on Plaintiff’s

wheelchair deprivation claim because their actions were objectively reasonable. (UTMB MSJ Br.

at 19-20). Plaintiff identified evidence in the record to show that he required use of his wheelchair

at all times and that he struggled and experienced pain when he had to stand. (See Part IV.D.5.c,

infra). He cited to evidence in the record to raise a question of fact as to whether Defendant Bowers

ignored his frequent pleas for assistance when he walked past his cell. (UTMB Resp. App. at 241-

242, ¶11). Plaintiff also cited to evidence showing that Defendant Moody knew he experienced pain

when he stood and that it would be difficult for him to get anywhere in his cell. (Id. at 104-05, 108-

09). Given Plaintiff’s constitutional right to reasonable accommodation in a wheelchair, the

knowing deprivation of his means of mobility would clearly be unlawful to a reasonable officer in

the same situation. Saucier, 533 U.S. at 202. Defendant Bowers and Moody’s motion for summary

judgment on the grounds of qualified immunity for Plaintiff’s wheelchair deprivation claim should

be DENIED. 

3.) Delay of Medical Care

The Court also previously denied Defendant Moody’s qualified immunity summary

judgment motion as to Plaintiff’s claim against her for delay in medical care. Coker, 2007 WL

3022575, at *21-22. This ruling should likewise not be reconsidered.

In summary, the individual defendants’ motions for summary judgment on Plaintiff’s § 1983

claims against them in their individual capacities on the basis of qualified immunity should be

DENIED.

3. Unsanitary Conditions Claim

Defendants also move for summary judgment on the merits of Plaintiff’s § 1983 unsanitary
14Plaintiff’s suit against Defendants Porter, Prater, and Chapa in their official capacities is treated as an

action against the entity that employs the individual or agent sued so long as the government entity receives notice

and an opportunity to respond. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Here, Dallas County, the

employer for Defendants Porter, Prater, and Chapa, received notice and had an opportunity to respond. The suit

against these individuals in their official capacity is therefore one against Dallas County. Id. 

15 Plaintiff does not pursue claims against Defendants Bowers and Moody in their official capacities. 

(UTMB Resp. at 18; see Compl.). Even if he had, no such claims would remain because the Court previously

dismissed Plaintiff’s § 1983 claims against UTMB. (Docket ##194, 201). Accordingly, the motion for summary

judgment by Defendants Bowers and Moody on the grounds of Eleventh Amendment immunity should be DENIED

as moot. (See UTMB MSJ Br. at 10-11) (asserting Eleventh Amendment immunity). 

- 43 -

conditions claim against Prater, Porter, and Chapa in their individual and official capacities,14

Defendant Dallas County, and Defendants Moody and Bowers in their individual capacities.15

In order for a prisoner to establish a “conditions-of-confinement” claim under the Eighth

Amendment, the prisoner must show that the deprivation alleged was sufficiently serious and that

the prison official possessed a sufficiently culpable state of mind. Herman v. Holiday, 238 F.3d 660,

664 (5th Cir. 2001); Harper v. Showers, 174 F.3d 716, 719-20 (5th Cir. 1999). “[P]rison authorities

may not withhold from prisoners the basic necessities of life, which includes reasonably adequate

sanitation.” Reed, 2004 WL 2187104, at *4. Filthy cell conditions may constitute an Eighth

Amendment violation. Gates, 376 F.3d at 338. Other circuits have made similar holdings; the

Eighth Circuit has held that a prisoner being placed in a cell covered with filth and human waste for

a two-year period without proper cleaning supplies constitutes cruel and unusual punishment.

Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989) (“[I]nmates are entitled to reasonably

adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of

time.”); see also McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (holding that three days

in a feces-covered cell states a claim upon which relief could be granted). 

a. Defendants Prater, Porter, and Chapa

Defendants Prater, Porter, and Chapa move for summary judgment on the grounds that there
- 44 -

is “no evidence” to show that they were aware of the unsanitary shower conditions or that the

unsanitary conditions were implemented or maintained with the intent punish Plaintiff or other

inmates. (Dallas MSJ Br. at 5-6). They also assert that Plaintiff failed to allege personal

involvement, and they deny responsibility for performing sanitation services. Id. 

The Court previously considered the same arguments set forth by Defendants Prater, Porter,

and Chapa and found that Plaintiff’s evidence contradicted the assertion of lack of awareness, lack

of punitary intent, and lack personal involvement. Coker, 2007 WL 3022575, at *18-21. Based on

the evidence already submitted, the Court found that genuine issues of material fact remained as to

whether the unsanitary conditions were sufficiently serious and whether these defendants possessed

a sufficiently culpable state of mind. 

Additionally, in his response to the instant motion Plaintiff provided additional evidence to

support his original claims. (Dallas Resp. at 11). He testified in his deposition that he personally

complained to Defendants Prater, Porter, and Chapa about the conditions of the shower and that they

ignored his request for cleaning supplies. (Dallas Resp. App. at 113, 119). All three officers agreed

that it would be unsanitary and potentially dangerous to have blood and waste in the shower, and

all three stated that they were responsible for making sure the shower was clean. (Id. at 75-78, 83-

86, 97, 99-101). Based on the evidence previously considered and the supplemental evidence

submitted in support, the Court finds that Plaintiff identified genuine issues of material fact in the

record such that a reasonable jury could find in his favor on his claim of unsanitary conditions.

Accordingly, Defendants Prater, Porter, and Chapa’s motion for summary judgment on Plaintiff’s

claim of unsanitary conditions against them in their individual and official capacities should be

DENIED. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249
- 45 -

b. Defendant Dallas County

It is not apparent whether Defendant Dallas County moves for summary judgment on

Plaintiff’s § 1983 claim for unsanitary conditions. The body of the brief only references alleged

evidentiary deficiencies against the individual defendants, but the last sentence moves on behalf of

the Dallas County Defendants, which includes Defendant Dallas County. (Dallas MSJ Br. at 5-6;

see Dallas MSJ at 2 (“Dallas County Defendants” includes Defendant Dallas County)). Defendant

Dallas County did not contend that Plaintiff lacked evidence of municipal liability for unsanitary

conditions at the Jail, nor did it present any arguments or evidentiary support other than those

advanced by Defendants Porter, Prata, and Chapa. (See Dallas MSJ Br. at 5-6). Plaintiff asserted

in his response that Defendant Dallas County’s failure to contest municipal liability means that the

motion is limited to the individual Dallas County Defendants. (Dallas Resp. at 10). Defendant

Dallas County did not file a reply to contest this assertion. Given the failure to present any evidence

or arguments particular to municipal liability, the Court finds that the instant motion is limited to

the individual Dallas County Defendants.

c. Defendants Bowers and Moody

Defendants Bowers and Moody move for summary judgment on Plaintiff’s § 1983 claim

against them in their individual capacities for unsanitary conditions on the grounds that neither

UTMB nor its employees were responsible for sanitation at the Jail. (UTMB MSJ Br. at 19). In

support, they cite to the deposition of Leslie Sweet, who acknowledged that the County was

responsible for maintaining sanitation in the cells, bathrooms, and showers through the use of inmate

trustees for the cleaning itself. (UTMB App. Ex. G at 17:21-18:9). They also cite to Defendant

Moody’s deposition, who testified that those in charge of security at the Jail were responsible for
- 46 -

cleaning. (Id. Ex. F at 64:8-65:6). They also cite to Plaintiff’s deposition testimony, in which he

admitted he never saw Defendants Bowers or Moody clean the handicapped shower, and he never

asked either of them to clean it. (Id. Ex. H at 110). Based on this evidence, they met their initial

summary judgment burden. Celotex, 477 U.S. at 324. 

The burden now shifts to Plaintiff to direct the court’s attention to evidence in the record

sufficient to establish that there is a genuine issue of material fact for trial. Id. Plaintiff relies on

the testimony of Defendants Bowers and Moody to rebut their assertion that they were not

responsible for sanitation at the Jail. (UTMB Resp. at 27-28). He cites to Defendant Bowers’

testimony that UTMB was responsible for infection control at the Jail, that it had a role to play in

ensuring sanitary conditions at the jail, and that it had the authority to make requests that areas in

the infirmary be cleaned. (UTMB Resp. App. at 83-86 (61:14-62:22, 67:3-68:2)). He also cites to

the acknowledgment of Defendants Bowers and Moody that failing to clean the shower areas could

spread infectious disease and that allowing human blood and waste to remain in the shower could

pose a significant health concern. (Id. at 82 (57:9-16), 86 (68:14-17), 98 (63:10-18), 100 (91:19-23),

101-02 (103:11-104:8)). They also acknowledge that if they had known there was blood and feces

in the shower, they should have notified security. (Id. at 85 (67:3-12), 98-99 (63:19-64:12), 103

(105:14-22)). Finally, he cites to evidence that Defendants Bowers and Moody knew the floor of

the handicapped shower was covered with blood, feces, and other waste but did nothing about it.

(Id. at 241-42). 

Given the conflicting interpretations of the testimony, the Court finds that genuine issues of

material fact remain as to whether the shower conditions were sufficiently serious and whether

Defendants Bowers and Moody’s failure to act indicated a sufficiently culpable state of mind.
- 47 -

Accordingly, summary judgment for Defendants Bowers and Moody in their individual capacities

on Plaintiff’s claim of unsanitary conditions should be DENIED. Celotex, 477 U.S. at 324.

4. Denial of Adequate and Prompt Medical Treatment Claim

Defendants also move for summary judgment on the merits of Plaintiff’s § 1983 claim for

denial of adequate and prompt medical treatment claim against Defendant Dallas County and against

Defendant Moody in her individual capacity. (Compl. at 12-14). 

Denying or delaying access to medical care can constitute deliberate indifference to the

medical needs of an inmate, as can interfering with treatment once prescribed. Estelle, 429 U.S. at

105; see e.g. Harris v. Hegman, 198 F.3d 153, 159 (5th Cir. 1999); Mendoza v. Lynaugh, 989 F.2d

191, 195 (5th Cir. 1993); Walker v. Butler, 967 F.2d 176, 178 (5th Cir. 1992); Wesson v. Oglesby,

910 F.2d 278, 284 (5th Cir. 1990). To establish deliberate indifference to medical needs, the

plaintiff must show that the officials “refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly evidence a wanton

disregard for any serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

An incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate

indifference. (Id.) Nor does the failure to alleviate a significant risk that the official should have

perceived, but did not. Farmer, 511 U.S. at 838. Mere negligence or medical malpractice does not

rise to the level of a constitutional violation, Domino, 239 F.3d at 756, nor does disagreement with

a prescribed course of treatment, Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citing

cases). For a delay in medical care to constitute an Eighth Amendment violation, the delay must

result in substantial harm, such as lasting complications. Easter v. Powell, 467 F.3d 459, 464 (5th

Cir. 2006) (citing Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). 
- 48 -

a. Defendant Dallas County

To hold a municipality liable for an episodic act or omission, the plaintiff must show: (1) that

a municipal employee acted with subjective deliberate indifference; and (2) that the municipal

employee’s act resulted from a municipal policy or custom adopted or maintained with objective

deliberate indifference to the plaintiff’s constitutional rights. Olabisiomotosho v. City of Houston,

185 F.3d 521, 526 (5th Cir. 1999). The subjective deliberate indifference standard focuses on what

the municipal employee actually knew. The objective deliberate indifference standard considers not

only what the policy maker actually knew, but what he should have known, given the facts and

circumstances surrounding the official policy and its impact on the plaintiff’s rights. Lawson v.

Dallas County, 286 F.3d 257, 264 (5th Cir. 2002).

1.) Subjective Deliberate Indifference

The Court first considers the required showing of subjective deliberate indifference by the

municipal employees. Defendant Dallas County asserts there is no evidence that the detention

authorities deliberately or recklessly ignored a substantial risk of serious harm arising from

Plaintiff’s medical care at the Jail. (Dallas MSJ Br. at 4). Specifically, it contends that Plaintiff’s

medical record shows receipt of extensive medical care and treatment during his confinement.

Defendant Dallas County also contends there is no competent summary judgment evidence to show

that Plaintiff sustained any harm or injury as a result of any act or omission of his medical care in

the Jail. Id. In support, it cites to an affidavit by its medical expert, Dr. Skinner, averring there is

“no evidence” to support Plaintiff’s constitutional claims. (See Dallas MSJ at 7, ¶¶13-15) (citing

to Dallas App. at 243-44). Dr. Skinner’s affidavit does not address Plaintiff’s claim about how the

medical care he received at the Jail or delay in transferring him to Parkland caused him to suffer for
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weeks and caused his condition to worsen requiring surgery, debridement, and permanent

disfigurement; it only references Plaintiff’s numerous clinic visits and hospital admissions during

his confinement and draws conclusory assertions. 

To rebut Dr. Skinner’s averment, Plaintiff provided specific references to the summary

judgment record to show that questions of fact remain as to whether the employees of Dallas County

exhibited subjective deliberate indifference to Plaintiff’s medical needs. For instance, he referenced

this Court’s previous finding of evidence that he suffered from multiple infections in his left leg that

led to at least three surgeries, and that these infections persisted for weeks before he was taken to

Parkland Hospital. (Dallas Resp. at 7) (citing Coker, 2007 WL 3022575, at *17). He also cited to

two of Defendants’ own experts, who agreed that his infections improved when he went to Parkland

and worsened when he returned to the Jail. Id. (citing Dallas Resp. App. at 127-28, 136-48). His

medical records corroborate these opinions. Id. (citing Dallas Resp. App. at 167). Plaintiff also

identified evidence to show that Defendants Prater, Porter, and Chapa knew that he suffered a

substantial risk of harm, and that they were responsible for delaying his treatment. Id. (citing Dallas

Resp. App. at 92, 258, 263). Given this evidence, Plaintiff has met his burden to show that genuine

issues of material fact remain as to whether the employees of Defendant Dallas County exhibited

subjective deliberate indifference to his constitutional right to adequate and prompt medical

treatment.

2.) Custom or Policy 

Defendant Dallas County asserts there is no evidence of a custom or policy adopted or

maintained with objective deliberate indifference to deprive Plaintiff of essential medical care and

treatment during his confinement. (Dallas MSJ Br. at 4). 
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An official policy is a “policy statement, ordinance, regulation or decision that is officially

adopted and promulgated” by the county’s lawmaking officers or official to whom the lawmakers

have delegated policy-making authority. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)

(per curiam). A custom, on the other hand, is a “persistent, widespread practice of city officials or

employees, which, although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents municipal policy.” Id. To

show that a policy or custom was adopted and maintained with deliberate indifference to the known

or obvious fact that constitutional violations would result “generally requires that a plaintiff

demonstrate at least a pattern of similar violations.” Johnson v. Deep East Texas Reg’l Narcotics

Trafficking Task Force, 379 F.3d 293, 309-10 (5th Cir. 2004). Unlike the deliberate indifference

standard applied to individual employees, this standard is an objective one; it considers not only

what the policymaker actually knew, but what he should have known, given the facts and

circumstances surrounding the official policy and its impact on the plaintiff’s rights. Lawson, 286

F.3d at 264 (citing Farmer, 511 U.S. at 841; Hare, 74 F.3d at 643 n. 4). Therefore, constructive

notice is adequate. Id.

Plaintiff, as the non-movant, must now direct the Court’s attention to evidence in the record

sufficient to establish a genuine issue of material fact regarding an unconstitutional custom or policy

in place at the Jail. Celotex, 477 U.S. at 323-24. Plaintiff cites to corroborating testimony from

inmates about his delay in receiving care and to Defendant Porter’s knowledge of his complaints and

need for medical care. (Id. at 92 (Porter deposition), 258 (Jones affidavit), 263 (Stribling affidavit)).

He also cites to a February 2005 evaluation from Health Management Associates (“HMA”) that

found systemic failures in medical care at the Jail, including barriers to inmate requests for medical
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attention, life-threatening housing arrangements, lack of infection control, and poor to non-existent

monitoring of chronically ill inmates. (Id. at 317, 328-29, 339-40, 343). See Duvall v. Dallas

County, 2008 WL 4561563, at *8 (N.D. Tex. Oct. 10, 2008) (Lindsay, J.) (relying, in part, on the

same HMA report to deny summary judgment on defendant’s claim of no evidence of

unconstitutional policy or custom). Given the affidavits from the other inmates and the HMA report,

Plaintiff has met his burden to identify evidence in the record of a municipal policy or custom

adopted or maintained with objective deliberate indifference.

Since Plaintiff has shown that fact issues remain concerning subjective deliberate

indifference by Dallas County employees and a municipal policy or custom adopted or maintained

with objective deliberate indifference, he has met his burden to show that issues of fact remain about

whether Defendant Dallas County is subject to municipal liability. See Olabisiomotosho, 185 F.3d

at 526. Based on these remaining issues of genuine material fact, the Court finds that a reasonable

jury could find in Plaintiff’s favor on his claim of denial of adequate and prompt medical treatment.

Accordingly, Defendant Dallas County’s motion for summary judgment should be DENIED as to

this claim. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249.

b. Defendant Moody

Defendant Moody moves for dismissal of Plaintiff’s claim on the grounds that Plaintiff failed

to state an actionable claim under § 1983 because his medical records show she did not delay in

providing adequate treatment for his recurrent cellulitis and leg infections. (UTMB MSJ Br. at 17).

In support, she refers the Court to Plaintiff’s medical records from his incarceration at the Jail and

Parkland Hospital but does not provide any references to any specific records. (Id. at 17) (citing

UTMB App. Ex. I and J). She also references the affidavit of Dr. Glen Mayhall, M.D., who
- 52 -

reviewed Plaintiff’s medical records and determined that in contrast to Plaintiff’s assertion of

delayed medical care, UTMB personnel worked aggressively with Parkland medical providers to

determine appropriate care. (Id. Ex. B at 2-3, ¶8). 

In the previous motion for summary judgment on the issue of qualified immunity, the Court

considered the same evidence presented here and found that genuine issues of material fact remained

as to Plaintiff’s claim of delay in medical care against Defendant Moody. Coker, 2007 WL

3022575, at *18. Indeed, the Mayhall affidavit is identical to the one submitted earlier. (See UTMB

App. Ex. B; docket #133 at 5-7). In its previous findings, the Court noted that 

[w]hile Defendant Moody presented evidence that shows she provided Plaintiff with

extensive medical treatment for his lower leg infections, she provides no evidence

that addresses Plaintiff’s claim that the delay in transferring him to Parkland caused

him to suffer for weeks, and caused his conditions to worsen requiring surgery and

debridement and permanent disfigurement.

Coker, 2007 WL 3022575, at *18 (emphasis added). The same deficiency is present here. 

In her reply, Defendant Moody asserts that she offers a “substantial amount of new evidence”

to support her claim that Plaintiff does not have an actionable § 1983 claim. (UTMB Reply at 5).

She then refers the Court to the three-page Mayhall affidavit, the Mayhall deposition (approximately

209 pages), Defendant Bowers’s deposition (approximately 217 pages), her own deposition

(approximately 221 pages), the UTMB medical records (217 pages), and the Parkland Hospital

medical records (58 pages). (Id. citing UTMB App. Ex. B, C, E, F, I, and J). She fails, however,

to provide a single citation to a specific record within the almost 1,000 pages she submits in support

of her assertion that she did not delay access to Plaintiff’s medical treatment. (See id.). The Court

is under no duty to sift through the record in search of evidence to support a party’s motion for

summary judgment, and it will not do so here. See Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
16 See note 13, supra. 

- 53 -

915-16 & n.7 (5th Cir. 1992). 

By failing to identify portions of the record to support her claim, Defendant Moody is left

with only conclusory, unsubstantiated assertions that she did not violate Plaintiff’s constitutional

rights by delaying access to medical care. Such assertions are insufficient to meet her summary

judgment burden. Additionally, Defendant Moody failed to address the factual issues the Court

identified in its previous motion, and those same factual issues remain at this stage of the litigation.

Defendant Moody’s motion for summary judgment in her individual capacity on Plaintiff’s claim

of denial of adequate and prompt medical treatment should be DENIED. Celotex, 477 U.S. at 323.

5. Wheelchair Deprivation

Defendants move for summary judgment on Plaintiff’s wheelchair deprivation claim arising

under § 1983 against Defendants Prater, Porter, and Chapa in their individual and official capacities;

Defendant Dallas County; and Defendants Moody and Bowers in their individual capacities.16

(Compl. at 14-17).

Deliberate indifference to the serious medical needs of prisoners constitutes the unnecessary

and wanton infliction of pain proscribed by the Eighth Amendment. Estelle, 429 U.S. at 104.

Disabled inmates must be provided with physical accommodations necessary because of their

disabilities, including adequate toilet and shower facilities, as well as wheelchairs and other mobility

aids. Ruiz, 503 F.Supp. at 1345. The failure to provide wheelchairs to mobility-impaired inmates

who require them can violate the Eighth Amendment if the failure to provide poses a substantial risk

of serious harm. See Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993) (granting summary

judgment for the plaintiff inmate based on undisputed evidence that prison authorities denied him
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the use of his wheelchair); Lavender v. Lampert, 242 F.Supp.2d 821, 849 (D. Or. 2002) (deliberate

indifference to deny use of a wheelchair to inmate who lacks mobility); Beckford v. Irvin, 49

F.Supp.2d 170, 180-181 (W.D.N.Y. 1999) (regularly deprivation of wheelchair for extended periods

of time held to be evidence of a serious medical need that defeated defendants’ motion for judgment

as a matter of law). 

a. Defendants Prater, Porter, and Chapa

Defendants Prater, Porter, and Chapa move for summary judgment on Plaintiff’s wheelchair

deprivation claim on three grounds. First, they assert that the decision to temporarily withhold

Plaintiff’s wheelchair was based on valid security concerns because detention authorities found

contraband items concealed in his wheelchair. (Dallas MSJ Br. at 6-7; see Dallas MSJ at 7, ¶6

(citing Dallas App. at 76-77). Second, they assert that Plaintiff could move around in his cell

without the use of his wheelchair. (Id.; see Dallas MSJ at 7, ¶8 (citing Dallas App. at 77)). Third,

they assert that they were not personally involved in the decision to take or withhold the wheelchair

and did not have the authority to return the wheelchair. For these last two assertions, the individual

Dallas County Defendants fail to identify any evidentiary support in the record. (See Dallas MSJ).

The burden now shifts to Plaintiff to direct the court’s attention to evidence in the record

sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324.

With regards to the valid security reason for confiscating Plaintiff’s wheelchair, Plaintiff contends

the issue is not whether Plaintiff misused his wheelchair by concealing contraband, but rather

whether confiscating the wheelchair for almost three months amounted to the unnecessary infliction

of pain proscribed by the Constitution. (Dallas Resp. at 14). In support, he cites to the deposition

of Chief Deputy Edgar McMillian, who testified that it would be improper to withhold the
- 55 -

wheelchair once the contraband was removed and that ongoing deprivation would only be justified

if Plaintiff continued to hide contraband in the wheelchair. (Dallas Resp. App. at 57-58, 59-60).

Plaintiff then cites to his disciplinary record, which records only two instances in which jail officials

found contraband in Plaintiff’s wheelchair. (Id. at 211-213). By citing to McMillian’s testimony

about the circumstances under which depriving an inmate of his wheelchair might be acceptable, and

then showing how Plaintiff’s two incident reports do not comport with those circumstances, Plaintiff

has identified a genuine issue of material fact as to whether the individual Dallas County Defendants

exhibited deliberate indifference. 

Plaintiff next challenges the motion on the grounds that he could move about his cell without

the assistance of his wheelchair. Plaintiff testified that he could move about his cell – by crawling,

using his left arm and infected leg since his right side was paralyzed. (Dallas Resp. App. at 120-21).

He was, however, unable to walk the short distance from his bunk to either his toilet or to the

window for his food and medication. Id. The individual Dallas County Defendants do not dispute

that Plaintiff was forced to crawl to move about his cell. (See Dallas Resp. App. at 9-11; Dallas MSJ

Br. at 6-7). As with the security reason for confiscating his wheelchair, Plaintiff has identified a

question of material fact as to whether the individual Dallas County Defendants exhibited deliberate

indifference by forcing him to crawl about on his cell for approximately three months. Lavender,

242 F.Supp.2d at 849; Beckford v. Irvin, 49 F.Supp.2d 170, 180-181 (W.D.N.Y. 1999). 

Plaintiff also challenges the assertion that Defendants Prater, Porter, and Chapa were not

personally involved in the decision to take or withhold the wheelchair and did not have the authority

to return the wheelchair. Plaintiff testified that he repeatedly asked these three defendants to return

his wheelchair to no avail. (Dallas Resp. App. at 113; see also id. at 257 (Stribling affidavit)). Chief
- 56 -

Deputy McMillian testified that the individual security officers were authorized to return the

wheelchair. (Id. at 66-67). Further, Plaintiff also testified that once he convinced Defendant Moody

to return his wheelchair after three months deprivation, Defendant Prater took it away again on the

next shift once he learned the wheelchair had been returned. (Id. at 118). Thus, Plaintiff has

identified evidence in the record to rebut the individual Dallas County Defendants’ assertion that

they were not personally involved in the decision to take or withhold the wheelchair and did not

have the authority to return the wheelchair.

Given these disputes, the Court finds that genuine issues of material fact remain as to

whether Defendants Prater, Porter, and Chapa exhibited deliberate indifference to Plaintiff’s serious

medical needs through the deprivation of his wheelchair for approximately three months.

Accordingly, their motion for summary judgment on this issue in their individual and official

capacities should be DENIED. Celotex, 477 U.S. at 324.

b. Defendant Dallas County

As with the claim for unsanitary conditions, it is not apparent that Defendant Dallas County

moves for summary judgment on this claim. (See Part IV.D.3.b, supra). Defendant Dallas County

did not contend that Plaintiff lacked evidence of municipal liability for the wheelchair deprivation

claim, nor did it present any arguments or evidentiary support other than those advanced by

Defendants Porter, Prata, and Chapa. (See Dallas MSJ Br. at 6-7). The Court therefore finds that

the instant motion is limited to the individual Dallas County Defendants.

c. Defendants Bowers and Moody

Defendants Bowers and Moody move for summary judgment on Plaintiff’s claim of

wheelchair deprivation on the grounds that they were not personally involved in depriving Plaintiff
- 57 -

of his wheelchair. Personal involvement is an essential element in a civil rights action under 42

U.S.C. § 1983. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (citing Rizzo v. Goode,

423 U.S. 362, 371-72). Defendants Moody and Bowers point to evidence that Officer Olugbode

confiscated Plaintiff’s wheelchair after discovering contraband. (UTMB App. Ex. L at 13-14; Ex.

I, 98-99). They also cite to Plaintiff’s admission that neither of them personally confiscated his

wheelchair. (Id. Ex. H at 113-14).

The burden now shifts to Plaintiff to direct the court’s attention to evidence in the record

sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324.

Plaintiff challenges Defendants Bowers and Moody’s assertion of lack of personal involvement.

Citing to the same evidence the Court considered in Part IV.D.2.b.2.), supra, Plaintiff identifies

evidence in the record establishing that UTMB was the ultimate authority on medical issues,

including which inmates received wheelchairs. (UTMB Resp. at 8-10) (citing UTMB Resp. App.

5-6 (Sweet deposition stating that determination of wheelchair necessity was medical); 89

(Defendant Bowers stating that medical staff could provide wheelchairs to inmates); 178-79

(medical grievances go to medical staff); 300 (UTMB handbook saying decisions and actions

regarding health care services are the sole responsibility of qualified health care personnel and will

not be compromised for security reasons). While Defendants Bowers and Moody may not have

physically confiscated Plaintiff’s wheelchair, Plaintiff has identified evidence that raises a question

of fact as to whether they participated in the ongoing deprivation of Plaintiff’s wheelchair, and

whether they had the authority to order the wheelchair returned. 

The individual UTMB Defendants raise three arguments in the alternative. (UTMB MSJ at

14-15). First, Defendants Bowers and Moody move for summary judgment on the grounds that
- 58 -

Plaintiff did not medically need a wheelchair in a single cell because he could “stand and transfer.”

(UTMB MSJ at 14) (citing UTMB App. Ex. F. at 40, 181). The evidence in support of this assertion

consists of deposition testimony by Defendant Moody stating that Plaintiff could stand on one leg.

Defendant Bowers moves for summary judgment on the grounds that he was never aware that

Plaintiff’s wheelchair had been confiscated and that he never saw Plaintiff without a wheelchair.

(UTMB App. Ex. E at 163). Defendant Moody moves on the grounds that although she was aware

Plaintiff’s wheelchair had been confiscated for security reasons, she was not aware that the

deprivation posed a substantial risk of serious harm. (Id. Ex. F at 115, 151-54). She also cites to

a clinical note from December 30, 2004, when she instructed the jail staff to return Plaintiff’s

wheelchair upon his return to the tank. (Id. Ex. I at 55). 

Plaintiff challenges Defendant Bowers and Moody’s assertion that Plaintiff could move

about his cell without his wheelchair. In support, he cites to twelve medical records, a booking

sheet, and his own declaration as evidence that he either required his wheelchair at all times or was

unable to walk or transfer himself. (UTMB Resp. at 20-21) (citing UTMB Resp. App. at 128, 157,

159, 160, 163, 165, 167, 171, 174-77, 180, 182, 239-40). He also cites to Defendant Moody’s

deposition testimony in which she acknowledged Plaintiff struggled to stand up or transfer,

experienced pain when he did so, and that she believed the signs of struggle and pain were sincere.

(UTMB Resp. App. at 104-05). Through this evidence, Plaintiff has shown that questions of fact

remain as to whether Plaintiff could stand and transfer on his own and whether requiring him to

move about his cell, either through crawling or standing on his infected left leg, needlessly inflicted

pain and suffering. 

Finally, Plaintiff challenges the remaining two assertions that Defendant Bowers was
- 59 -

unaware of the wheelchair confiscation and that Defendant Moody was not aware the deprivation

posed a substantial risk of serious harm. (UTMB Resp. at 21-24). With regards to Defendant

Bowers, he cites to his own sworn testimony that he frequently asked Defendant Bowers for

assistance when he walked past Plaintiff’s cell on the way to the staff bathroom. (UTMB Resp. App.

at 241-242, ¶11). With regards to Defendant Moody, he cites to her deposition testimony in which

she acknowledged she knew Plaintiff struggled to stand up or transfer, experienced pain when he

did so, and that it would be difficult for Plaintiff to get anywhere in his cell. (UTMB Resp. App.

at 104-05, 108-09). Plaintiff’s citation to sworn testimony thus raises questions of fact as to whether

Defendant Bowers was aware of the wheelchair confiscation and whether Defendant Moody was

aware of a substantial risk of serious harm. 

In sum, Plaintiff has identified evidence in the record from which a reasonable jury could

find in his favor. Given the existence of genuine issues of material fact as to whether Defendants

Bowers and Moody exhibited deliberate indifference to Plaintiff’s serious medical needs through

the deprivation of his wheelchair for approximately three months, the Court finds that their motion

for summary judgment should be DENIED in their individual capacities. Celotex, 477 U.S. at 324.

V. CONCLUSION

For the reasons stated above, the Court recommends that Defendant’s Motion for Summary

Judgment be GRANTED in part and DENIED in part. Defendants Bowers and Moody’s motion

for summary judgment on the basis of Eleventh Amendment immunity should be DENIED as moot.

Defendant Dallas County’s motion for summary judgment should be GRANTED as to the lack of

handicapped accessible shower chair and van because those claims are barred by limitations. The

Defendants’ motions should be DENIED in all other respects. The following claims against these
- 60 -

defendants remain for trial:

(1) Dallas County and UTMB for violations of the Americans with Disabilities

Act and the Rehabilitation Act;

(2) Dallas County; Moody and Bowers in their individual capacities; and Prater,

Porter, and Chapa in their individual and official capacities for violations

under the Eighth and Fourteenth Amendments to the United States

Constitution under 42 U.S.C. § 1983 for (a) unsanitary conditions, and (b)

wheelchair deprivation; and

(3) Dallas County and Moody in her individual capacity for violations under the

Eighth and Fourteenth Amendments to the United States Constitution under

42 U.S.C. § 1983 for failure to provide adequate and prompt medical

treatment.

SO RECOMMENDED on this 25th day of February, 2009.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE