385 F.3d 503 (5th Cir. 2004), 03-10455, Johnson v. Johnson

Docket Nº:03-10455
Citation:385 F.3d 503
Party Name:Johnson v. Johnson
Case Date:September 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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385 F.3d 503 (5th Cir. 2004)

Roderick Keith JOHNSON, Plaintiff-Appellee,


Gary JOHNSON, et al., Defendants, Gary Johnson; Robert R. Treon, Senior Warden Allred Unit; Richard E. Wathen; James D. Mooneyham, Assistant Warden Allred Unit; Tommy Norwood, Major; Kenneth Bright, Major; Tracy Kuyava, Administrative Technician Unit Classification Committee; Tina Vitolo, Administrative Technician Unit Classification Committee; Vikki D. Wright, Director, Classification; Joseph Boyle, Captain; Jimmy Bowman, Major; Kenneth Willingham, Sergeant; Oscar Paul, Lieutenant; Onessimo Ranjel, Lieutenant; David Taylor, Lieutenant, Defendants-Appellants.

Nos. 03-10455, 03-10505, 03-10722.

United States Court of Appeals, Fifth Circuit

September 8, 2004

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Margaret Winter (argued), Amy Fettig, Craig Allen Cowie (argued), Am. Civ. Liberties Union, Nat. Prison Project, Washington, DC, Edward J. Tuddenham, Austin, TX, for Plaintiff-Appellee.

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Celamaine Cunniff (argued) and Matthew Tepper (argued), Asst. Atty. Gens., Austin, TX, for Defendants-Appellants.

Appeals from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.

KING, Chief Judge:

This is a § 1983 suit brought by a former Texas prisoner against fifteen prison officials. According to the plaintiff's version of events, which is disputed by the defendants, he suffered through a horrific eighteen-month period of incarceration during which the defendant prison officials failed to protect him from prison gangs who repeatedly raped him and bought and sold him as a sexual slave. His complaint asserted violations of the Eighth Amendment and the Equal Protection Clause. The district court denied the defendants' motions for judgment on the pleadings and for summary judgment, and they now bring these interlocutory appeals. The defendants argue that the plaintiff largely failed to exhaust his administrative remedies and that any exhausted claims are barred by qualified immunity. We conclude that the majority, but not all, of the plaintiff's claims must be dismissed on grounds of failure to exhaust or qualified immunity. We therefore affirm in part, reverse in part, and remand.


Roderick Johnson entered the Texas prison system in January 2000 after the revocation of a sentence of probation that he had received for a nonviolent burglary. He was transferred to the system's Allred Unit on September 6, 2000. Upon arriving at Allred, Johnson met with a three-person Unit Classification Committee (UCC) for a determination of his initial housing status. Prison officials knew that Johnson was homosexual and possessed an effeminate manner. Johnson told the UCC that he had been housed in "safekeeping" before his transfer. 1 Safekeeping is a housing status that separates vulnerable individuals from more aggressive offenders. According to Texas Department of Criminal Justice (TDCJ) regulations, safekeeping is indicated when an inmate is at risk of victimization, has enemies in the population, has a history of homosexuality, or possesses other characteristics that mark the offender as vulnerable to predation. But according to Johnson, one of the members of the UCC told him that "[w]e don't protect punks on this farm"--"punk" being prison slang for a homosexual man. Johnson was put in the general population. He was raped by other inmates almost immediately.

Johnson's complaint and affidavit describe a horrific series of events that allegedly occurred over the next eighteen months at Allred. In October 2000, not long after his arrival in the general population, a prison gang member named Hernandez asserted "ownership" over Johnson, forcing Johnson to become his sexual servant. Johnson informed Assistant Warden Mooneyham and Sergeant Willingham of the rapes and requested medical attention, but they told him that care was

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available only for emergencies and that he should file a written request for medical attention. By November, Hernandez began to rent Johnson out to perform coerced sexual favors for other inmates. Johnson believed that he would be severely beaten or killed if he refused. Hernandez beat Johnson on November 30, and medical personnel documented bruising and swelling on Johnson's face. At several times over the following months, Johnson was moved to different buildings at Allred and was raped and owned by different prison gangs.

Johnson sought help from guards, filed numerous "life-endangerment" forms, and wrote letters to prison administrators. Prison officers who investigated Johnson's complaints generally determined that they could not be corroborated; the officers usually did not interview any of the inmates mentioned in Johnson's complaints, purportedly out of a concern to protect the "integrity of the investigation" or to protect Johnson. Johnson's life-endangerment forms triggered a number of appearances before UCCs composed of various prison officials and employees. Johnson asked the UCCs to place him in safekeeping status, place him in protective custody (which entails a significant loss of privileges), or transfer him to a different prison on multiple occasions: December 13, 2000; February 14, 2001; February 21, 2001; March 16, 2001; September 5, 2001; December 13, 2001; and January 17, 2002. Each time the committee refused Johnson's requests, ostensibly because there was no concrete evidence of victimization. According to Johnson, the members of the committees repeatedly told him that he either had to fight off his attackers or submit to being used for sex. The comments allegedly made by the UCC members, which they dispute, include statements such as: "You need to get down there and fight or get you a man," "There's no reason why Black punks can't fight and survive in general population if they don't want to f***," and remarks to the effect that, since Johnson was homosexual, he probably liked the sexual assaults he was experiencing.

In addition to writing letters to administrators and filing life-endangerment notices, Johnson also used the TDCJ's formal two-step administrative grievance process on several occasions. The grievances described his victimization and his repeated unsuccessful requests for protection or a transfer to safekeeping. The grievances were denied, generally on the basis that unit officials or UCC committees had already conducted proper investigations and had found no substantiating evidence. 2

Johnson eventually contacted the American Civil Liberties Union. Shortly thereafter, Johnson went before the UCC again, on April 1, 2002, and was approved for a transfer to TDCJ's Michael Unit. During his December 2002 deposition, Johnson testified that he had not suffered attacks at the Michael Unit, where he was housed in safekeeping.

Johnson filed suit in the district court in April 2002 against over a dozen TDCJ officials and employees. The defendants comprise supervisory officials such as TDCJ Executive Director Gary Johnson, 3 Senior Warden Treon, Assistant Warden Wathen, Assistant Warden Mooneyham, and Director of Classification Wright; guards who failed to protect Johnson on

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discrete occasions (namely, Lieutenant Paul 4 and Sergeant Willingham); and many of the members of the various UCCs that had denied Johnson protection (namely, Major Norwood, Major Bright, UCC Administrative Technician Kuyava, UCC Administrative Technician Vitolo, Captain Boyle, Major Bowman, Lieutenant Ranjel, and Lieutenant Taylor). 5 The lengthy complaint asserted three causes of action: (1) failure to protect Johnson from harm, in violation of the Eighth Amendment, (2) a race-based Equal Protection claim charging that officials denied him protection because he is black, and (3) a sexual-orientation-based Equal Protection claim predicated on the allegation that the defendants denied Johnson protection out of anti-homosexual animus. The suit sought injunctive relief and damages. The defendants answered Johnson's complaint with a blanket denial of almost all of its allegations.

In July 2002, Executive Director Johnson, Treon, and Wright moved for judgment on the pleadings on Johnson's Equal Protection claims (but not the Eighth Amendment claim). The plaintiff did not oppose this motion, and the district court later granted it.

In November 2002, all of the defendants filed a motion to dismiss the case for failure to exhaust administrative remedies, and, at the same time, all of the defendants who were still facing Equal Protection claims (i.e., all defendants but Executive Director Johnson, Treon, and Wright) filed a motion for judgment on the pleadings with regard to the Equal Protection claims. 6 The motion for judgment on the pleadings asserted, inter alia, an entitlement to qualified immunity on the ground that Johnson had not alleged violations of rights that were clearly established.

While those motions were still pending, the defendants also filed, in January 2003, a motion for summary judgment on the Eighth Amendment claims, again asserting qualified immunity among other grounds. The motion also reasserted the defendants' arguments concerning Johnson's Equal Protection claims.

On April 9, 2003, the district court denied the defendants' January 2003 motion for summary judgment in an order stating that fact issues remained regarding whether the defendants acted with deliberate indifference to a substantial risk to Johnson's safety; the court further held that the...

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