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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DARRELL JENKINS,

Plaintiff,

v. 

AYODEJI ODUNLAMI, ET AL.,

Defendants.

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CIVIL ACTION NO. 6:23-CV-00157-JDKJDL

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Plaintiff Darrell Jenkins, an inmate at the Texas Department of Criminal Justice, 

Darrington Unit, proceeding pro se and in forma pauperis, filed this civil action pursuant to 

42 U.S.C. § 1983, alleging violations of his constitutional rights in prison. The lawsuit was referred 

to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and 

recommendations for the disposition of the case. Before the court is Defendants Odunlami, Jett, 

Evans, and Ogunjobi’s motion for summary judgment filed on October 11, 2023. (Doc. No. 21.) 

Plaintiff did not file a response and the period to do so has passed.1 See L.R. CV-7(e). For the 

reasons set forth herein, the court RECOMMENDS that Defendants’ motion (Doc. No. 21) be 

DENIED.

1 The court notes that Defendants’ motion for summary judgment was served on Plaintiff via certified mail on October 

11, 2023, at his then-address at the Ellis Unit in Hunstville, Texas. (Doc. No. 21, at 13). On December 18, 2023, the 

court received from Plaintiff a notice of his change of address to the Darrington Unit in Rosharon, Texas. (Doc. No. 

22.) Further, Plaintiff filed a letter on April 25, 2024, requesting a status update for his case. (Doc. No. 23.) Although 

Defendants mailed their motion over two months prior, the issues within the prison mail system are well-known, and 

Plaintiff has clearly articulated his interest in continuing to prosecute this case (without any reference to the motion 

for summary judgment). Together, these circumstances suggest that Plaintiff may not have received the motion for 

summary judgment.

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BACKGROUND

I. Plaintiff’s Complaint

Plaintiff filed this lawsuit against Defendants Yodeji Odunlami, Daniel Jett, John Doe, 

Wayne Evans, and Bukola Ogunjobi in their individual capacities on March 31, 2023, for 

deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment. 

(Doc. No. 1.) Plaintiff claims that on January 24, 2022, at 2:00 p.m., while confined as an inmate 

at the TDCJ Michael Unit, Plaintiff told Officer Ayodeji Odunlami that he felt suicidal. Odunlami 

allegedly said he would tell his supervisor, Sergeant Daniel Jett. (Doc. No. 1, at 6.) Around 4:00 

p.m., Plaintiff states that his neighbor set a fire in his cell and that when Odunlami arrived to see 

why there was a fire, Plaintiff’s neighbor told Odunlami that Plaintiff needed “real help.” Id. 

Odunlami allegedly told them, “[I]’m going to tell [S]gt. Jett right now!” Id. However, no one 

came to help Plaintiff. Id. Plaintiff claims that Jett was “told by officer that I cut myself,” but that 

Jett did not seek medical care for Plaintiff. Id. at 5. 

When the nightshift officer, John Doe, arrived, Plaintiff claims that “I told [Doe] that I felt 

suicidal.” Id. at 5. Doe allegedly said he would report to his supervisor, Lieutenant Wayne Evans 

Id. at 6. Evans then sent Sergeant Bukola Ogunjobi to see what was wrong, and Ogunjobi allegedly 

told Plaintiff that the “officer above told what happen.” Id. Specifically, Plaintiff claims that 

Ogunjobi was “told by officer that [Plaintiff] was bleeding and need[ed] medical from selfharm 

[sic],” but Ogunjobi did not do anything to help. Id. at 5, 6. 

Plaintiff claims that he was left bleeding from his left arm for 18 hours, and he did not get 

help until the next day when a Sergeant Foust saw Plaintiff and immediately took him to receive 

medical attention. Id. at 6. Plaintiff alleges that he received 36 staples for the cut in his left arm. 

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Id. Plaintiff is seeking relief in the form of $250,000 in compensatory and punitive damages, and 

“all costs and all relief proper.” Id. 

II. Defendants’ Answer

Defendants filed an answer (Doc. No. 15) on July 13, 2023, admitting that Plaintiff was an 

inmate incarcerated within the TDCJ when Plaintiff filed his complaint and that Defendants 

Odunlami, Jett, Evans, and Ogunjobi are currently or were previously correctional officers at the 

TDCJ Michael Unit, but denying all other claims and requested relief. Id. Defendants raise the 

affirmative defenses of qualified immunity, sovereign immunity, and failure to exhaust 

administrative remedies. Id. 

III. Defendants’ Motion for Summary Judgment

Defendants’ motion for summary judgment argues that Plaintiff has failed to show that 

Defendants committed a constitutional violation or that Defendants are not entitled to qualified 

immunity. (Doc. No. 21.) Regarding Officer Odunlami, Defendants do not dispute that Plaintiff 

told Odunlami that he was feeling suicidal. However, Defendants argue that Plaintiff cannot show 

that Odunlami was deliberately indifferent to Plaintiff’s medical needs because Odunlami was not 

subjectively aware that Plaintiff was a suicide risk. Id. at 6. Defendants note that suicide is difficult 

to predict, particularly where there is no knowledge of prior suicidal ideation. Id. Further, 

Defendants argue that based on the facts alleged in the complaint, Odunlami was not deliberately 

indifferent because Odunlami purportedly told another ranking officer multiple times that Plaintiff 

felt suicidal. Id. at 8.

Regarding Sergeant Jett and Lieutenant Evans, Defendants argue that Plaintiff cannot show 

that Jett and Evans were deliberately indifferent because Plaintiff only claims that other individuals 

said they would inform Jett and Evans that Plaintiff was suicidal. Id. Defendants assert that there 

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is no allegation in the complaint that Jett and Evans were ever actually informed that Plaintiff was 

suicidal, that they were subjectively aware of a substantial risk of suicide, or that they disregarded 

that risk. Id. at 6-7. Likewise, regarding Sergeant Ogunjobi, Defendants argue that the mere fact 

that Ogunjobi purportedly said that the “officer above told what happen” is too conclusory to 

impart subjective knowledge about Plaintiff’s condition onto Ogunjobi. Id. at 7. 

Last, Defendants argue that Plaintiff cannot overcome Defendants’ entitlement to qualified 

immunity. Id. at 9. Specifically, Defendants argue that Plaintiff has failed to demonstrate what 

clearly established law Defendants violated and, more specifically, has failed to demonstrate that 

not calling an I.C.S. (a procedure for dealing with emergencies) on Plaintiff for self-harm was 

objectively unreasonable. Id. at 11.

LEGAL STANDARD

A motion for summary judgment should be granted if the record, taken as a whole,

“shows that there is no genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56. The Supreme Court has interpreted the plain

language of Rule 56 as mandating “the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[T]he party moving for summary judgment must ‘demonstrate the absence of a genuine

issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at

323–25). A fact is material if it might affect the outcome of the suit under the governing law.

Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999). Issues of material

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fact are genuine if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. If the moving party “fails to meet this initial burden, the motion must be

denied, regardless of the nonmovant’s response.” Little, 37 F.3d at 1075.

If the movant meets this burden, Rule 56 requires the opposing party to go beyond the

pleadings and to show by affidavits, depositions, answers to interrogatories, admissions on file,

or other admissible evidence that specific facts exist over which there is a genuine issue for trial.

EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir. 1996); Wallace v. Texas Tech.

Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). The nonmovant’s burden may not be satisfied by

conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a mere

scintilla of evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075.

When ruling on a motion for summary judgment, the Court is required to view all

justifiable inferences drawn from the factual record in the light most favorable to the nonmoving

party. Matsushita, 475 U.S. at 587. However, the Court will not, “in the absence of any proof,

assume that the nonmoving party could or would prove the necessary facts.” McCallum

Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995). 

DISCUSSION

Here, Defendants have brought forth a motion for summary judgment asking the court to 

resolve the issue of qualified immunity as a matter of law. However, Defendants do not attempt to 

articulate a set of facts that directly contradict anything in Plaintiff’s complaint. Nor do they cite

to any witness affidavits, reports, or other competent summary judgment evidence in support of 

their motion. Indeed, there is no evidentiary record in this case at all, except for the sworn 

allegations in Plaintiff’s complaint. Instead, Defendants argue that “Jenkins has provided no 

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evidence supporting his assertion that Defendants were subjectively aware of any excessive risk 

to his safety or were deliberately indifferent to his serious medical needs by failing to call an 

‘I.C.S.’ on him for self-harm,” and generally challenge the sufficiency of Plaintiff’s allegations.

(Doc. No. 21, at 2.)

In many ways, Defendants’ motion reads more like a motion to dismiss for failure to state 

a claim. Although the court permissively could consider the motion in the context of Rule 12(b)(6), 

(c), Defendants had a deadline to file such a motion in this case and chose not to do so. See Doc. 

No. 11. Indeed, if Defendants felt that no discovery was necessary in this case to resolve the 

question of qualified immunity, then a Rule 12(b)(6) motion should have been timely brought. See 

Carswell v. Camp, 54 F.4th 307, 312 (5th Cir. 2022) (“where the pleadings are insufficient to 

overcome QI, the district court must grant the motion to dismiss without the benefit of predismissal discovery.”). Instead, Defendants chose to file a motion for summary judgment pursuant 

to Federal Rule of Civil Procedure 56 and Local Rule CV-56, and they must therefore abide by the 

requirements of those rules. Specifically, Federal Rule of Civil Procedure 56(c) states:

(c) Procedures.

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion 

only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence 

of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.

As noted above, Defendants essentially argue that there is no genuine dispute that the 

Defendants were not aware that Plaintiff was a suicide risk or that they were deliberately 

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indifferent to that risk. In so asserting, Rule 56(c) required Defendants to cite to “particular 

materials in the record” or other admissible summary judgment evidence to support that assertion. 

Id.; see also Celotex Corp, 477 U.S. at 328 (White, J., concurring) (“It is not enough to move for 

summary judgment without supporting the motion in any way or with a conclusory assertion that 

the plaintiff has no evidence to prove his case.”; id. at 331–32 (Brennan, J., dissenting) (agreeing 

that “a party who moves for summary judgment on the ground that the nonmoving party has no 

evidence must affirmatively show the absence of evidence in the record”). “This court cannot 

simply take their word for it.” Adelsheimer v. Carroll Cnty., Mississippi, 639 F. Supp. 3d 699, 703 

(N.D. Miss. 2022).

Further, to the extent that Defendants argue that because they have asserted the defense of 

qualified immunity, the burden has shifted to Plaintiff to show that Defendants’ conduct was 

unreasonable in light of clearly established law, nothing in Rule 56(c) alters the summary judgment 

burden of production in cases where qualified immunity is asserted. Indeed, the Supreme Court 

has stated that the general rules of summary judgment plainly apply even when the defense of 

qualified immunity is raised. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (holding that under 

either qualified immunity prong, courts may not resolve genuine disputes of fact in favor of the 

party seeking summary judgment) (citing Federal Rule of Civil Procedure 56(a)).

The Fifth Circuit has never suggested that a defendant may circumvent the Federal Rules

by generically asserting the defense of qualified immunity in a motion for summary judgment.

Indeed, the Fifth Circuit has routinely held that the defense must be raised in “good faith.” See, 

e.g., King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (“A good-faith assertion of qualified 

immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show 

that the defense is not available.”) (internal quotation marks and citations omitted). At summary 

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judgment, compliance with Rule 56(c) would be necessary to the good faith assertion of the 

defense. Such a conclusion is particularly warranted where, as here, Defendants have the materials 

of record that would inform the court of the veracity of Plaintiff's allegations but selectively chose 

not to include any such supporting materials, instead relying on blanket assertions that Plaintiff 

cannot prove the allegations pleaded. Ultimately, the dearth of materials presented inhibits the 

court from conducting a proper analysis of the qualified immunity issue on summary judgment. 

To attempt to resolve the issue as a matter of law on such an insufficient record would be a great 

disservice to the litigants who come before this court. 

Recently, at least one sister court in the Fifth Circuit has agreed with this reasoning. In 

Adelsheimer, the Northern District of Mississippi considered a motion for summary judgment 

asserting qualified immunity that presented no evidence in support, no citations to the record, and 

instead made bare assertions that plaintiff had no evidence that defendants knew that plaintiff was 

a suicide risk. 639 F. Supp. 3d at 704. As such, the court viewed the motion as a clear violation of 

Rule 56(c) and emphasized that “the mere fact that a defendant is asserting a qualified immunity 

defense entitles him to no more lenient standards when asserting a summary judgment motion 

under Rule 56.” Id. at 703. In the interests of justice, the court ultimately decided to provide 

defendants an additional opportunity to file an amended motion for summary judgment to include 

competent summary judgment evidence. Id. at 704. 

The court finds the same course of action appropriate here. Defendants filed a motion for 

summary judgment that wholly fails to cite to any record evidence and is replete with general 

accusations that Plaintiff has no evidence of Defendants’ subjective knowledge that he was a 

suicide risk. Because Defendants have failed to comply with Rule 56(c), and thus, failed to meet 

their burden of production as the movant to show that there is no genuine dispute as to any material 

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facts, Defendants’ motion for summary judgment should be denied. See Adelsheimer, 639 F. Supp. 

3d at 703 (denying defendant official’s motion for summary judgment based on qualified immunity 

for failing to follow Rule 56(c)); see also Disedare v. Brumfield, No. CV 22-2680, 2024 WL 

1092833, at *8–9 (E.D. La. Mar. 13, 2024), opinion vacated in part on reconsideration on other 

grounds, No. CV 22-2680, 2024 WL 1514650 (E.D. La. Apr. 8, 2024) (same). However, in the 

interests of justice, Defendants should be provided an opportunity to file an amended motion for 

summary judgment that is supported with competent summary judgment evidence. As a frequent 

litigant in this court and on these cases, the Office of the Attorney General of Texas (“OAG”)

should be well acquainted with these rules despite the present submission of a clearly insufficient 

dispositive motion in this court. The court admonishes the OAG and its lawyers to comply with 

the Federal Rules and the local rules of this court to ensure that any future dispositive motions in 

this case, or any other, are brought in good faith and comply with said rules.

CONCLUSION

For the reasons stated above, the court RECOMMENDS that Defendants’ motion for 

summary judgment (Doc. No. 21) be DENIED. The court FURTHER RECOMMENDS that 

Defendants be given a new deadline to file a motion for summary judgment that complies with the 

Federal Rules and the Local Rules of this court. Within fourteen (14) days after receipt of the 

Magistrate Judge’s Report, any party may serve and file written objections to the findings and 

recommendations contained in the Report. A party’s failure to file written objections to the 

findings, conclusions, and recommendations contained in this Report within 14 days after service 

shall bar that party from de novo review by the district judge of those findings, conclusions, and 

recommendations and, except upon grounds of plain error, from attacking on appeal the 

unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district 

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court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), 

superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections from ten to fourteen days).

So ORDERED and SIGNED this 13th day of May, 2024.

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