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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

JEREMY EDWARDS,

Plaintiff,

v. 

LENN GUSA,

Defendant.

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CIVIL ACTION NO. 6:23-CV-00365-JCB

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Before the court is Defendant Lenn Gusa’s motion to dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6). (Doc. No. 8.) Plaintiff Jeremy Edwards has filed a response (Doc. No. 

16). For the reasons stated herein, the court RECOMMENDS that Defendant Gusa’s motion to 

dismiss (Doc. No. 8) be GRANTED and Plaintiff’s claim against him be dismissed with prejudice. 

BACKGROUND

On June 22, 2023, Plaintiff Lenn Gusa filed this civil action pursuant to 42 U.S.C. § 1983 

alleging that Defendant Lenn Gusa violated his Eighth Amendment rights. (Doc. No. 1.) Plaintiff’s 

allegations relate to his time of incarceration at the Texas Department of Criminal Justice (TDCJ) 

Coffield Unit. (Doc. No. 1, at 2.) Plaintiff alleges that during his time of incarceration, Defendant 

Gusa was employed by TDCJ as an officer. Id.

Specifically, Plaintiff alleges that on June 23, 2021, he was being escorted from his cell by 

Defendant Gusa for a dentist visit. Id. at ¶ 13. Plaintiff claims that he was being escorted through 

a high security wing and that Defendant Gusa did not use a protective shield while escorting him. 

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Id. at ¶¶ 14, 15. Plaintiff alleges that while he was being escorted, another inmate threw a 22” 

paper pole with a 6” metal tip sharpened to a point that struck him the forearm, went through his 

forearm, and exited through his lower right abdomen. Id. at ¶¶ 20, 21. Plaintiff alleges that 

Defendant Gusa was aware of the risks of escorting inmates through the high security wing, and 

that by escorting Plaintiff without a shield, he was leaving him vulnerable to attack because 

Plaintiff could not protect himself. Id. at ¶¶ 16–18. Plaintiff further alleges that Defendant Gusa 

was aware that other inmates presented a threat to Plaintiff as he walked without a shield through 

a high security wing. Id. at ¶ 19. Based upon these allegations, Plaintiff asserts a claim for failure 

to protect against Defendant Gusa in violation of the Eighth Amendment. Id. at 5–9. 

On July 22, 2023, Defendant Gusa filed the instant motion to dismiss on the grounds of 

qualified immunity. (Doc. No. 8.) 

LEGAL STANDARD

Motions to dismiss under Rule 12(b)(6) for failure to state a claim “are viewed with 

disfavor and are rarely granted.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th 

Cir. 2005); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The court utilizes a 

“two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 

(2009). First, the court identifies and excludes legal conclusions that “are not entitled to the 

assumption of truth.” Id. Second, the court considers the remaining “well-pleaded factual 

allegations.” Id. The court must accept as true all facts alleged in a plaintiff’s complaint, and the 

court views the facts in the light most favorable to the plaintiff. In re Katrina Canal Breaches 

Litig., 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff’s complaint survives a defendant’s Rule 

12(b)(6) motion to dismiss if it includes facts sufficient “to raise a right to relief above the 

speculative level.” Id. (quotations and citations omitted). 

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In other words, the court must consider whether a plaintiff has pleaded “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). “‘[D]etailed factual allegations’” are not required. Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555). Nevertheless, a complaint must allege “sufficient factual matter, 

accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 

570). “A claim has facial plausibility when the pleaded factual content allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Id. at 679. 

DISCUSSION 

Defendant Gusa argues that he is entitled to qualified immunity on Plaintiff’s failure to 

protect claim because Plaintiff fails to allege that Defendant Gusa was aware of any specific risk 

of threat to Plaintiff prior to the June 23, 2021 escort or that Defendant Gusa drew any inference 

that a substantial risk of serious harm to Plaintiff existed. (Doc. No. 8, at 5.) Defendant further 

argues that Plaintiff has failed to show that his conduct violated clearly established law. Id. at 7. 

Plaintiff argues that he alleged sufficient facts to infer deliberate indifference based upon the high 

security wing and the failure to use a protective shield. (Doc. No. 16, at 9–11.) Plaintiff further 

argues that the clearly established caselaw does not allow Defendant Gusa to escape liability by 

asserting that he did not know that Plaintiff was likely to be assaulted by a specific prisoner. Id. at 

13–20. 

The doctrine of “qualified immunity” protects government officials from “liability for civil 

damages insofar as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

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(1982). At the pleading stage, the qualified immunity inquiry focuses on whether a plaintiff has 

shown “(1) that the official violated a statutory or constitutional right, and (2) that the right was 

‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 

735 (2011) (citing Harlow, 457 U.S. at 818). The court has “discretion in deciding which of the 

two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 

555 U.S. 223, 236 (2009). 

I. Failure to Protect

Under the Eighth Amendment, “prison officials have a duty ... to protect prisoners from 

violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also 

Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). “It is not, however, every injury suffered by 

one prisoner at the hands of another that translates into constitutional liability for prison officials 

responsible for the victim's safety.” Id. at 834. To state a constitutional claim for failure to protect, 

a plaintiff must show: (1) that he was subjected to conditions posing a substantial risk of serious 

harm; and (2) prison officials were deliberately indifferent to his need for protection. Id.; Neals v. 

Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Deliberate indifference “is an extremely high standard 

to meet.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Crucially, 

in order to show that prison officials were deliberately indifferent to a prisoner’s need for 

protection, the prisoner must prove “that the official actually knew of a substantial risk of serious 

harm and failed to act.” Adeleke v. Heaton, 352 F. App’x 904, 907 (5th Cir. 2009) (per curiam) 

(unpublished) (emphasis added). Moreover, “mere negligence in failing to protect a prisoner from 

assault does not establish a constitutional violation.” See Oliver v. Collins, 914 F.2d 56, 60 (5th 

Cir. 1990).

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Here, Plaintiff alleges that Defendant Gusa was aware that he was transporting Plaintiff 

through a high security wing, that protective gear should be used during transport, and that Plaintiff 

was generally vulnerable. Plaintiff does not, however, allege any facts to suggest that Defendant 

Gusa was aware of a specific threat to Plaintiff by another inmate at the time of transport. Plaintiff’s 

general references to the high security wing and the need for protective equipment fail to allege 

facts that would make it so obvious that any prison official would have known of the risk simply 

because of its obviousness. Farmer, 511 U.S. at 842. Indeed, even assuming Defendant Gusa 

violated TDCJ policy by transporting Plaintiff without a protective shield, the failure of a 

correctional officer to follow rules and regulations does not, alone, establish deliberate 

indifference. See Thompson v. AVC Correctional Center Staff, 2013 WL 3778911, at *3 (W.D. La. 

July 17, 2013) (dismissing a failure-to-protect claim in which the plaintiff urged that correctional 

officers failed to protect him from an assault by another inmate and were deliberately indifferent 

to a serious risk of harm because they left the plaintiff and assailant together and unattended in 

violation of prison policy, noting that “a prison official’s failure to follow the prison’s own policies 

does not, itself, result in a constitutional violation”) (citing Richardson v. Thorton, 299 F. App’x 

461, 462–63 (5th Cir. 2008) (“The failure of the prison to follow its own policies ... is not sufficient 

to make out a civil rights claim.”)); Sandoval v. Fox, 135 F. App’x 691, 691–92 (5th Cir. 2005) 

(“The mere failure to comply with prison rules and regulations does not, without more, give rise 

to a constitutional violation.”)).

In sum, Plaintiff has failed to allege facts sufficient to suggest that Defendant Gusa actually 

knew of a substantial risk of serious harm to Plaintiff. Plaintiff has therefore failed to state a claim 

for deliberate indifference against Defendant Gusa. As such, Defendant Gusa is entitled to 

qualified immunity on Plaintiff’s Section 1983 claim. Because the court has found that Defendant 

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Gusa is entitled to qualified immunity based upon Plaintiff’s failure to allege a constitutional 

violation, the court makes no further finding regarding clearly established law.

RECOMMENDATION

For these reasons, the court RECOMMENDS that Defendant Gusa’s motion to dismiss 

(Doc. No. 8) be GRANTED as Defendant Gusa is entitled to qualified immunity. The court 

therefore RECOMMENDS that Plaintiff’s claim against Defendant Gusa be DISMISSED with 

prejudice for failure to state a claim. 

Within fourteen 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 fourteen days after being served with a copy shall bar that party from de novo

review by the district judge of those findings, conclusions, and recommendations and, except on 

grounds of plain error, from appellate review of unobjected-to factual findings and legal 

conclusions accepted and adopted by the district court. Douglass v. United States Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996). 

So ORDERED and SIGNED this 4th day of December, 2023.

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