Corpus: 543,223 opinions ·
3,177 judges ·
newest 2026-06-23 · expanding
Coverage ↗
Opinion
govinfo:USCOURTS-txsd-4_23-cv-01468-0
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NADAB GARCIA,
(TDCJ # 02216186)
Plaintiff,
versus
JOHN V. TARAWALIE, et al,
Defendants.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NUMBER
4:23-cv-01468
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON DISMISSAL
The amended motion to dismiss by Defendants John V.
Tarawalie, Charles A. Countryman, Kingsley C.
Theophilus, Timothy Jacoby, and Christopher E. Little is
granted. Dkt 19.
The civil -rights action by Plaintiff Nadab Garcia is
dismissed with prejudice.
1. Background
Plaintiff is a former inmate of the Texas Department of
Criminal Justice –Correctional Institutions Division. He
proceeds here pro se and in forma pauperis. In April 2023,
he filed a complaint under 42 USC §1983, alleging that
Defendants violated his Eighth Amendment rights by
refusing to provide him with medical care after he was
injured by a fellow inmate. He also alleges that Defendants
retaliated against him. Dkt 1.
Specifically, he alleges that on October 31, 2022, while
incarcerated at the Ferguson Unit, another inmate threw
hot petroleum jelly on his face and ear. He called “the
sergeants,” who came to the scene but refused to escort him
to the medical unit . Plaintiff then started a fire in his cell
as a call for attention, but when “the sergeants” returned,
they still refused to take him to the medical unit. Plaintiff
United States District Court
Southern District of Texas
ENTERED
June 15, 2026
Nathan Ochsner, Clerk
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 1 of 10
2
alleges that this was retaliation, but he doesn’t include any
facts to explain why “the sergeants” would retaliate against
him. Id at 4.
In a Step 1 grievance dated November 8, 2022, and
attached to the complaint, Plaintiff reported that a member
of a prison gang had thrown hot petroleum jelly on his face
on October 31 st. When Sergeant Jacoby responded to the
scene, Plaintiff asked him to escort him to the medical unit,
but Jacoby refused. Plaintiff later spoke with “Ms. Mark,”
who escorted him to medical. Plaintiff state d that Ms.
Mark told Sergeant Tarawalie to lock up the inmate who
threw the hot substance, but Tarawalie refused. Id at 6.
Plaintiff also reported that his life was in danger from
prison gang members. He state d t hat a different gang
member put “electricity” on his bunk , and that an Officer
Pfleiderer filed a disciplinary charge against Plaintiff when
he tried to defend himself. The Step 1 grievance asked for
the disciplinary charge to be investigated, along with the
incident with the petroleum jelly. Id at 6–7.
The grievance response stated that Plaintiff’s claim of
inmate violence had been investigated and substantiated
and that a unit transfer had been recommended. Id at 7. It
appears that Plaintiff was transferred to a different TDCJ
unit a few weeks later. Id at 10–11.
In a Step 2 grievance appeal dated January 19, 2023,
and attached to the complaint , Plaintiff sought review of
his disciplinary conviction rather than anything relating to
the incident with the petroleum jelly . The grievance
response noted that he had been transferred to a new unit
due to substantiated claims of inmate -on-inmate violence,
but it didn’t address his claims concerning the disciplinary
charge. Ibid.
In his complaint, Plaintiff seeks money damages from
Defendants based on their alleged refusal to escort him to
the medical unit and their alleged retaliation against him.
Id at 3–4.
Defendants responded to the complaint with a motion
to dismiss . Dkt 18. They later filed an amended motion.
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 2 of 10
3
Dkt 19. The only difference between the two motions
appears to be the correction of a minor typographical error.
The latter asserts that the complaint doesn’t allege
sufficient facts to show that Defendants violated Plaintiff’s
constitutional rights. Id at 3–6. It also asserts that
qualified immunity protects Defendants from liability . Id
at 6–7.
Plaintiff filed a response, which he titled a “motion to
proside.” Dkt 20. He clarifies that Tarawalie and Jacoby
responded when he first called for help after being burned,
but they refused to escort him to the medical unit.
Unidentified officers who responded when he later set fire
to his cell also refused to take him to the medical unit. Ms.
Mark, who is the self-harm prevention officer, escorted him
to the medical unit about three hours after he was initially
burned. Id at 1–2.
2. Legal standard
Plaintiff’s complaint is construed liberally because he
proceeds pro se. Coleman v United States, 912 F3d 824, 828
(5th Cir 2019), citing Erickson v Pardus , 551 US 89, 94
(2007, per curiam).
To state a valid claim under §1983, a plaintiff must
(i) allege a violation of rights secured by the Constitution
or laws of the United States, and (ii) demonstrate that the
alleged violation was committed by a person acting under
color of state law. West v Atkins, 487 US 42, 48 (1988);
Gomez v Galman , 18 F4th 769, 775 (5th Cir 2021 ,
per curiam). The first element recognizes that “state tort
claims are not actionable under federal law; a plaintiff
under [§]1983 must show deprivation of a federal right.”
Nesmith v Taylor, 715 F2d 194, 195 (5th Cir 1983 ,
per curiam). The second element means that generally only
state actors—not private parties —can be liable f or
violations of civil rights. Frazier v B oard of Tr ustees of
Northwest Mississippi Regional Medical Center, 765 F2d
1278, 1283 (5th Cir 1985).
Dismissal of a complaint is appropriate “ ‘when the
court lacks the statutory or constitutional power to
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 3 of 10
4
adjudicate’ the claim.” In re FEMA Trailer Formaldehyde
Products Liability Litigation , 668 F3d 281, 286 (5th Cir
2012), quoting Home Builders As sociation v City of
Madison, 143 F3d 1006, 1010 (5th Cir 1998). Rule 12(b)(1)
permits a defendant to seek such dismissal. Once
jurisdiction is at issue, the party asserting it has the
burden to establish by a preponderance of the evidence that
it exists. New Orleans & Gulf Coast Railway Co v Barrois,
533 F3d 321, 327 (5th Cir 2008) ; see also Ramming v
United States, 281 F3d 158, 161 (5th Cir 2001, per curiam):
“[T]he plaintiff constantly bears the burden of proof that
jurisdiction does in fact exist.”
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires a plaintiff’s complaint to provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Rule 12(b)(6) allows the defendant to
seek dismissal if the plaintif f fails “to state a claim upon
which relief can be granted.”
Reading these Rules together, the Supreme Court has
held that Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v
Iqbal, 556 US 662, 678 (2009), quoting Bell Atlantic Corp v
Twombly, 550 US 544, 555 (2007). To survive a Rule
12(b)(6) motion to dismiss, the complaint “must provide the
plaintiff’s grounds for entitlement to relief —including
factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” Cuvillier v
Taylor, 503 F3d 397, 401 (5th Cir 2007), quoting Twombly,
550 US at 555.
A complaint must therefore contain “enough facts to
state a claim to relief that is plausible on its face. ”
Twombly, 550 US at 570. A claim has facial plausibility
“when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 US at 678,
citing Twombly, 550 US at 556. This standard is “not akin
to a ‘probability requirement,’ but it asks for more than a
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 4 of 10
5
sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 US at 678, quoting Twombly, 550 US at 556.
Review of a motion to dismiss under Rule 12(b)(6) is
constrained, being generally limited to the contents of the
complaint and its attachments. Collins v Morgan Stanley
Dean Witter , 224 F3d 496, 498 (5th Cir 2000) . The
reviewing court “must accept all well-pleaded facts as true
and view them in the light most favorable to the plaintiff.”
Walker v Beaumont Independent School District , 938 F3d
724, 735 (5th Cir 2019) , quoting Campbell v Wells Fargo
Bank, NA, 781 F2d 440, 442 (5th Cir 1986) (cleaned up) .
But courts “do not accept as true ‘conclusory allegations,
unwarranted factual inferences, or legal conclusions.’” Rx
Solutions, Incorporated v Caremark, LLC, 164 F4th 436,
441 (5th Cir 2026), quoting Hodge v Engleman, 90 F4th
840, 843 (5th Cir 2024) (cleaned up).
While pro se litigants are held to less stringent
pleading standards than attorneys, they aren’t excused
from the requirement to allege sufficient facts to state a
plausible claim. See Taylor v Books A Million, Inc, 296 F3d
376, 378 (5th Cir 2002); Toole v Peak, 361 F Appx 621, 621
(5th Cir 2010, per curiam) (self-represented litigants “still
must actually argue something that is susceptible of liberal
construction”).
3. Discussion
a. Official capacity claims
Plaintiff doesn’t specify whether he seeks relief from
Defendants in their official capacities, individual
capacities, or both.
The Eleventh Amendment bars suits for damages
against a state in federal court. Kentucky v Graham ,
473 US 159, 169 (1985). “Absent waiver, neither a State
nor agencies acting under its control [are] ‘subject to suit
in federal court.’” Puerto Rico Aqueduct and Sewer
Authority v Metcalf & Eddy , Inc, 506 US 139, 144 (1993),
quoting Welch v Texas Department of Highways and Public
Transportation, 483 US 46 8, 480 (1987). This bar also
applies to state officials sued for damages in their official
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 5 of 10
6
capacity because such actions “generally represent only
another way of pleading an action against an entity of
which an officer is an agent .” Kentucky, 473 US at 16 5,
quoting Monell v New York City Department of Social
Services, 436 US 658, 690 n 55 (1978).
The amended motion by Defendants to dismiss under
Rule 12(b)(1) will be granted in this respect. Dkt 19.
To the extent that Plaintiff seeks an award of money
damages from Defendants in their official capacities , his
claims will be dismissed for lack of jurisdiction.
b. Deliberate indifference
Plaintiff’s first claim against Defendants in their
individual capacities alleges that they were deliberately
indifferent to his need for medical care.
The Eighth Amendment’s prohibition against cruel and
unusual punishment guarantees prisoners the right to
have their serious medical needs addressed. See Gobert v
Caldwell, 463 F3d 339, 345 (5th Cir 2006). A serious
medical need is one “for which treatment has been
recommended or for which the need is so apparent that
even laymen would recognize that care is required. ” Id at
345 n 12. Prison officials violate the Eighth Amendment
when they evince deliberate indifference to a prisoner’s
serious medical needs, resulting in the unnecessary and
wanton infliction of pain. Wilson v Seiter, 501 US 294, 297
(1991).
But the standard for deliberate indifference is
“extremely high.” Domino v Texas Department of Criminal
Justice, 239 F3d 752, 756 (5th Cir 2001). “For an official to
act with deliberate indifference, ‘the official must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference.’” Smith v Brenoettsy, 158 F3d 908,
912 (5th Cir 1998), quoting Farmer v Brennan, 511 US 825,
837 (1994). To meet this standard, the plaintiff must allege
facts showing that the defendant, despite knowing of the
risk, “refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 6 of 10
7
similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Domino, 239 F3d
at 756, quoting Johnson v Treen, 759 F2d 1236, 1238 (5th
Cir 1985). “Actions and decisions by officials that are
merely inept, erroneous, ineffective , or negligent” don’t
amount to deliberate indifference. Doe v Dallas
Independent School District , 153 F3d 211, 219 (5th Cir
1998); see also Farmer, 511 US at 835. And when the claim
is based on a delay in medical care, the plaintiff must allege
facts showing that the delay itself resulted in substantial
harm. See Easter v Powell, 467 F3d 459, 464 (5th Cir 2006,
per curiam), quoting Mendoza v Lynaugh, 989 F2d 191, 193
(5th Cir 1993).
Plaintiff hasn’t alleged facts to satisfy this extremely
high standard. He alleges that Jacoby knew that he had
been splashed with hot petroleum jelly, but he doesn’t
describe his injuries or allege any facts demonstrating that
it was apparent that immediate medical care was required.
He doesn’t identify any action or inaction by Defendants
Theophilus, Little, or Countryman relating to the alleged
delay in receiving medical care . And he alleges no facts
showing that the three -hour delay in receiving medical
care caused him substantial harm. In sum, his allegations
are nothing more than the “defendant -unlawfully-harmed
-me” type the Supreme Court has held to be legally
insufficient. See Ashcroft, 556 US at 678.
As to Tarawalie, Plaintiff alleges only that he refused
Ms. Mark’s order to secure the inmate who allegedly
caused the injury. But these facts, even taken as true, don’t
demonstrate deliberate indifference to Plaintiff’s need for
medical care.
Plaintiff’s factual allegations don’t meet the high
standard required to show deliberate indifference to his
serious medical needs. He thus isn’t entitled to relief from
Defendants on these claims.
The claims by Plaintiff based on deliberate indifference
will be dismissed with prejudice for failing to state a claim.
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 7 of 10
8
c. Retaliation
Plaintiff’s second claim against Defendants in their
individual capacities alleges that they retaliated against
him.
A prima facie case of retaliation in the prison context
requires the plaintiff to show that (i) he exercised a specific
constitutional right, (ii) the defendant intended to retaliate
against him for the exercise of that right, (iii) the defendant
took a retaliatory adverse action , and (iv) the plaintiff’s
exercise of the constitutional right caused the retaliatory
adverse action. Johnson v Rodriguez , 110 F3d 299, 310
(5th Cir 1997). To support a claim, the alleged adverse acts
must be sufficiently serious t o rise to the level of a
constitutional violation. Morris v Powell, 449 F3d 682, 684–
85 (5th Cir 2006). And to show causation, the plaintiff must
either “produce direct evidence of motivation or, the more
probable scenario, ‘allege a chronology of events from
which retaliation may plausibly be inferred. ’” Woods v
Smith, 60 F3d 1161, 1166 (5th Cir 1995) , quoting Cain v
Lane, 857 F2d 1139, 1143 n 6 (7th Cir 1988 ). “Mere
conclusory allegations of retaliation” aren’t sufficient. Ibid.
Neither is the plaintiff’s personal belief that he’s the victim
of retaliation. Johnson, 110 F3d at 310.
The complaint alleges no facts sufficient to meet this
standard. Plaintiff’s personal belief that Defendants
retaliated against him in some way at some unidentified
time isn’t sufficient to state a claim upon which relief can
be granted. Beyond that, he doesn’t identify a specific
constitutional right that he was exercising. He doesn’t
identify any retaliatory adverse action that any Defendant
took against him. And he offers no chronology of events
from which retaliation could plausibly be inferred.
The claims by Plaintiff for retaliation must be
dismissed with prejudice for failing to state a claim.
d. Qualified immunity
Defendants also raise the affirmative defense of
qualified immunity. This defense protects government
officials “from liability for civil damages insofar as their
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 8 of 10
9
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v Callahan, 555 US 223, 231 (2009),
quoting Harlow v Fitzgerald , 457 US 800, 818 (1982). Its
availability as a defense ultimately “turns only upon the
objective reasonableness of the defendant’s acts.”
Thompson v Upshur County, Texas, 245 F3d 447, 457 (5th
Cir 2001) (emphasis in original).
Analysis of qualified immunity involves two inquiries.
See Aguirre v City of San Antonio , 995 F3d 395, 406 (5th
Cir 2021). A court “first asks whether the facts, taken in
the light most favorable to the party asserting the injury,
show the officer’s conduct violated a federal right.” Ibid,
quoting Tolan v Cotton , 572 US 650, 655 –56 (2014,
per curiam). Second, it determines whether the “right in
question was ‘clearly established’ at the time of the
violation.” Tolan, 572 US at 656, citing Hope v Pelzer ,
536 US 730, 739 (2002). “‘The salient question is whether
the state of the law’ at the time of an incident provided ‘fair
warning’ to the defendants ‘that their alleged conduct was
unconstitutional.” Ibid, quoting Hope, 536 US at 741
(cleaned up).
As explained above, as to the first question, Plaintiff
doesn’t allege facts sufficient to show that Defendant s
violated his constitutional rights. The second question thus
needn’t be considered.
The amended motion by Defendants to dismiss the
claims against them based on qualified immunity is
granted. Dkt 19. The claims by Plaintiff against
Defendants are dismissed with prejudice as barred by
qualified immunity.
4. Conclusion
The original motion to dismiss by Defendants is DENIED
AS MOOT. Dkt 18.
The amended motion to dismiss by Defendants is
GRANTED. Dkt 19.
The civil -rights action by Plaintiff Nadab Garcia is
DISMISSED WITH PREJUDICE. Dkt 1.
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 9 of 10
10
Plaintiff’s “motion to proside” is DENIED AS MOOT .
Dkt 20.
Any other pending motions are DENIED AS MOOT.
Final judgment will enter separately.
SO ORDERED.
Signed on , at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
June 15, 2026
Case 4:23-cv-01468 Document 21 Filed 06/15/26 in TXSD Page 10 of 10