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Click here for the full text of this decision FACTS:Roderick Johnson entered the Texas prison system in January 2000 after the revocation of probation for a nonviolent burglary. Upon being transferred to the Allred Unit on Sept. 6, 2000, Johnson, a black homosexual, said he was subject to daily sexual abuse for 18 months at the hands of his fellow prisoners. Johnson filed repeated complaints telling of his abuse, and how he was sold and traded as a sex slave, and asking to be transferred or put into protective custody. Johnson filed his complaints with the Unit Classification Committee (UCC). Johnson claims he was told by the UCC that homosexuals were not protected at the unit and that if he was being raped then he needed to fight back. The committee also, at one point, suggested that as a homosexual, Johnson probably liked the sexual assaults. Johnson complained to the UCC on Dec. 13, 2000. In 2001, he complained to the committee on Feb. 14, Feb. 21, March 16, Sept. 5 and Dec. 13, then again on Jan. 17, 2002, for a total of seven complaints. Each time, the committee refused Johnson’s requests to be moved or transferred, ostensibly because there was no concrete evidence of victimization. In addition to his grievances, Johnson wrote letters to administrators and used the prison system’s formal two-step administrative grievance process. After contacting the American Civil Liberties Union, Johnson was transferred to the Michael Unit, and Johnson’s complaints ceased. He was released soon thereafter. Johnson filed suit against more than 12 prison officials, including Executive Director Gary Johnson, Senior Warden Treon, Assistant Warden Wathen, Assistant Warden Mooneyham, and Director of Classification Wright. Johnson also sued guards who failed to protect him on specific occasions, namely, Lieutenant Paul 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. Johnson’s complaint, which asked for injunctive relief, alleged three causes of action: one based on the Eighth Amendment, one a race-based Equal Protection claim, and one a sexual-orientation Equal Protection claim. The defendants gave a blanket denial. Johnson, Treon and Wright moved for judgment on both Equal Protection claims, and the district court granted it. All of the defendants filed a motion to dismiss for Johnson’s alleged failure to exhaust administrative remedies. Also at this time, in November 2002, the defendants other than Johnson, Treon and Wright, filed a motion for judgment on the pleadings on both Equal Protection claims. Meanwhile, in January 2003, all the defendants filed a motion for summary judgment on the Eight Amendment claims. The defendants all said they were entitled to qualified immunity. The district court denied the January 2003 motion, due to a remaining issue over whether the defendants acted with deliberate indifference to the substantial risk to Johnson’s safety. The district court’s order also rejected the defendants’ exhaustion argument, which they had brought up again in this summary judgment motion. When the district court finally ruled on the November 2002 motion, it denied it and ruled as moot the motion to dismiss for failure to exhaust. The defendants filed a notice of appeal from the order denying summary judgment, and later a motion appealing the denial of judgment on the pleadings, in two separate cause numbers. Johnson, too, filed two notices of appeal, asking to dismiss the defendants’ two appeals for lack of jurisdiction. HOLDING:Affirmed in part; reversed and remanded in part. First, the court determines whether Johnson’s claims should be dismissed for failure to exhaust the administrative process, as is required by the Prison Litigation Reform Act. The court notes Texas has a two-step grievance process. Though Johnson wrote many letters complaining of his treatment, he filed just two formal grievances and followed them through: the one on March 18, 2001, and one on Dec. 30, 2001, which was 17 after the Dec. 13 incident. The court reviews whether the complaints described the alleged problem in sufficient detail, noting that there is no hard and fast rule for how much detail is necessary or required. The court adds that what should be important is whether the complaints sufficiently put prison officials on notice and gives them an opportunity to address the problem. The court then looks at the three theories of constitutional violation Johnson brings here to see if the grievances they are based on provided this notice. The court finds there is not sufficient notice regarding Johnson’s race discrimination claim. His grievances do not mention race at all; therefore, prison officials had no opportunity to correct any problems associated with racial discrimination. The court does, however, find that sexual orientation discrimination allegation was adequately described in the grievances so as to put the prison officials on notice and give them a chance to correct the problem. So, too, was the Eight Amendment claims. Deciding, then, that Johnson can pursue his sexual orientation discrimination and Eighth Amendment claims, but not his race-based ones, the court then turns to see for which events he exhausted the administrative process. Since Johnson’s first formal complaint wasn’t filed until March 18, 2001, the court finds that his complaints to the UCC on Sept. 6, 2000, Dec. 13, 2000, and the two dates in February 2001 to be not exhausted. The grievance filed on Dec. 30 may have been filed after the time limit mandated by the grievance period, but the court finds that, as Johnson was alleging a course of ongoing conduct, not just the occurrence of specific, discrete incidents, the filing was not untimely. Prisoners need not continue to file grievances about the same issue; in fact the Texas prison grievance procedure specifically discourages multiple filings. The court thus concludes that Johnson’s grievances were sufficient to exhaust claims that arose from the same continuing failure to protect him from sexual assault, so his claims from the Sept. and Dec. 2001 UCC meetings, and the January 2002 one, have been exhausted. Next, the court looks to see which of the claims Johnson may still pursue have been exhausted against the specific defendants. Of the named defendants who were not on the UCCs, the court finds that prison guards Paul and Willingham were not specifically mentioned or given a chance to help Johnson. And supervisory defendants Treon, Wright and Johnson (the executive director) were entitled to qualified immunity. As for the defendants on the UCCs, the court finds repeated references to the committees and their failures. This was enough to put all individuals on those committees on notice. Having weeded out the exhausted claims that Johnson can pursue, from the non-exhausted ones that he can’t, the court goes to the merits of the exhausted claims. In the first matter, the summary judgment on Johnson’s Eighth Amendment claims, the court notes that it lacks jurisdiction to review the district court’s assessment that a genuine issue of fact exists as to some matter, and therefore the court cannot look behind the ruling that Johnson presented sufficient evidence for a fact finder to conclude that the defendants knew of the risk. Nonetheless, prison officials may still violate the Eighth Amendment where they are both aware of a substantial risk to inmate safety and fail to respond properly. The court again notes which defendants are still subject to this inquiry, and finds none of the non-UCC defendants liable, but does find that some of the UCC members � Wathen and Kuyava � are not entitled to qualified immunity and must face Johnson’s allegations, as they are among the ones who told Johnson things like he’d better “learn to f or fight.” The court goes through the same process with the sexual orientation equal protection claims. The court finds that Johnson’s complaints include statements that the defendants subjected him to “an arbitrary and irrational classification” and acted out of “hostility and animus.” He complains not of the offensive statements made by the defendants, but that he was denied protection because of his sexual orientation. The defendants’ comments are relevant, though, because they tend to reveal the defendants’ reasons for their actions in denying him safekeeping. The court finds that the law the defendants disregarded was clearly established. A law that disadvantages homosexuals for reasons lacking any rational relationship to legitimate governmental aims cannot stand. OPINION:King, C.J.; King, C.J., Barksdale and Pickering, JJ.

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