United States Court of Appeals

for the Fifth Circuit

No. 21-10407

Summary Calendar

Edwin Horton Witherspoon, 

Plaintiff—Appellant,

versus

Bill Waybourn, Tarrant County Sheriff, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CV-313

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Edwin Horton Witherspoon, Tarrant County inmate # 0458991, filed 

a 42 U.S.C. § 1983 suit against Tarrant County Sheriff Bill Waybourn, in 

which he raised numerous civil rights violations stemming from the Tarrant 

County Jail’s compliance with protocol during the COVID-19 pandemic, 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2022

Lyle W. Cayce

Clerk

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specifically a March 2020 executive order issued by the Texas governor. 

Witherspoon appeals the dismissal of his suit under Federal Rule of Civil 

Procedure 12(b)(6) for failure to state a claim upon which relief could be 

granted. He also argues that the district court erred in not permitting him to 

amend his complaint.

We review a dismissal under Rule 12(b)(6) for failure to state a claim 

de novo, “accepting all well-pleaded facts as true and viewing those facts in 

the light most favorable to the plaintiff[].” Dorsey v. Portfolio Equities, Inc., 

540 F.3d 333, 338 (5th Cir. 2008) (internal quotation marks and citation 

omitted). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

citation omitted). We should neither “strain to find inferences favorable to 

plaintiffs” nor accept “conclusory allegations, unwarranted deductions, or 

legal conclusions.” R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 

2005) (internal quotation marks and citation omitted).

Witherspoon argues that the district court abused its discretion when 

it granted Sheriff Waybourn’s Rule 12(b)(6) motion, including its conclusion 

that supervisory liability should not apply in this matter. He contends that 

Sheriff Waybourn and the Tarrant County Sheriff’s Office (TCSO) failed to 

comply with the governor’s executive order for COVID-19 protocols and that 

such noncompliance amounted to deliberate indifference to his safety and 

health needs and created unsafe living conditions. 

To the extent that Witherspoon argues that Sheriff Waybourn is liable 

as a supervisor, Witherspoon has not demonstrated an erroneous 12(b)(6) 

dismissal of his claims by the district court because he has not stated a facially 

plausible claim for relief. See Iqbal, 556 U.S. at 678. Witherspoon did not set 

forth in the district court, nor does he argue here outside of a general 

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assertion, that Sheriff Waybourn was personally involved in any act that 

constituted noncompliance with the executive order. Moreover, he did not 

allege and fails to claim here that Sheriff Waybourn’s conduct was causally 

related to any constitutional violation. See Evett v. Deep E. Tex. Reg’l 

Narcotics Trafficking Task Force, 330 F.3d 681, 689 (5th Cir. 2003). 

Therefore, he fails to show that the district court erred in granting the 

sheriff’s 12(b)(6) motion to dismiss on the issue of supervisory liability. See 

Dorsey, 540 F.3d at 338.

Similarly, Witherspoon has not established that the district court 

erred in its Rule 12(b)(6) dismissal of his deliberate indifference claims 

against Sheriff Waybourn. See Iqbal, 556 U.S. at 678. Witherspoon did not 

lodge specific allegations in the district court as to any element of deliberate 

indifference by the sheriff and fails to do the same on appeal. Witherspoon 

generally alleges omissions and a lack of compliance with Governor Abbott’s 

COVID-19 executive order, but he conceded in his pleadings that the jail took 

numerous preventative and remedial safety measures during the pandemic.

Therefore, Witherspoon has not demonstrated that the district court erred 

in dismissing Witherspoon’s claims of deliberate indifference against Sheriff 

Waybourn based on episodic acts and omissions. See Dorsey, 540 F.3d at 338;

Hare v. City of Corinth, 74 F.3d 633, 636, 647-48 (5th Cir. 1996) (en banc).

Witherspoon challenges the conditions of his confinement, including 

the handling of chemicals and sanitary conditions, and the district court’s 

dismissal of those claims. However, he does not detail how the practices 

surrounding the maintenance of chemicals and sanitation amounted to a 

“pervasive pattern of serious deficiencies in providing for his basic human 

needs.” Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). To the 

extent he argues that the effects of the COVID-19 pandemic resulted in 

unconstitutional conditions of confinement, Wilson again has not explained 

how a pervasive pattern of errors or deficiencies by jail officials impinged on 

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his basic human needs. See id. Consequently, Witherspoon has not 

demonstrated that the district court erred in its Rule 12(b)(6) dismissal of his 

conditions of confinement claims against Sheriff Waybourn. See Dorsey, 540 

F.3d at 338.

Additionally, Witherspoon argues that the district court failed to 

apply to him the legal standards for pretrial detainees. However, the record 

establishes that it indeed applied that standard to Witherspoon’s claims. 

Therefore, Witherspoon has demonstrated no error in the district court’s 

analysis of his claims as a pretrial detainee. 

Finally, Witherspoon challenges the failure of the district court to 

allow him to amend his complaint so that he could offer factual elaboration

on his claims. However, Witherspoon indeed filed an amended complaint, 

the district court provided him with a questionnaire regarding, inter alia, his 

claims against Sheriff Waybourn, and Witherspoon completed and submitted 

that form. Therefore, Witherspoon has demonstrated no error by the district 

court in regard to amending his complaint. See Bazrowx v. Scott, 136 F.3d 

1053, 1054 (5th Cir. 1998); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

AFFIRMED.

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