UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GEORGE EDWARD PURDY,

INSTITUTIONAL ID NO. 2187077,

Plaintiff,

v. No. 4:22-cv-0264-P

LINDA THOMAS, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Plaintiff George Edward Purdy, a state prisoner proceeding pro se 

and in forma pauperis (IFP), filed an amended civil-rights complaint 

about the conditions of his confinement in Bridgeport Correctional 

Center (BCC).1 See ECF Nos. 17, 23. Purdy claims that Defendants

Linda Thomas, the senior warden of BCC, and Betty Milligan, its

mailroom supervisor, in their individual capacities, violated his 

constitutional right of access to the courts. He alleges that they

intentionally delayed processing his appellate filing fee payment, which 

resulted in the United States Court of Appeals for the Fifth Circuit 

dismissing his appeal of a lower court judgment dismissing his federal 

habeas petition that attacked his state convictions. He seeks damages 

and injunctive relief under 42 U.S.C. § 1983. 

Defendants filed a motion to dismiss Purdy’s claims under Federal 

Rule of Civil Procedure 12(b)(6). See ECF No. 28. Defendants argue that

(1) they are entitled to qualified immunity because Purdy fails to state 

a constitutional violation; and (2) Purdy’s claims for injunctive relief are 

not cognizable under § 1983.2

1When Purdy filed this action, he was incarcerated in BCC. He is currently 

incarcerated in the TDCJ LeBlanc Unit in Beaumont, Texas, where he is serving 

several sentences for multiple sexual assault offenses, three of which involved a child. 

See https://inmate.tdcj.texas.gov/InmateSearch. 

2Purdy filed a response, and Defendants filed a reply. See ECF No. 38, 41. Purdy 

also filed a sur-reply. See ECF Nos. 42, 43.

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As explained below, Defendants’ motion is DENIED in part and 

GRANTED in part. 

BACKGROUND

In his amended complaint, Purdy includes the district court and 

appellate court case numbers related to his underlying habeas petition.

See ECF No. 17 at 5. Thus, the Court takes judicial notice of the 

following adjudicative facts, which are not disputed and gleaned from 

public court records found on PACER.3 See Basic Cap. Mgmt., Inc. v. 

Dynex Cap., Inc., 976 F.3d 585, 588 (5th Cir. 2020) (explaining that 

judicially noticed facts may be considered in ruling on a motion to 

dismiss). The Court also incorporates facts alleged by Purdy in his 

complaint and deduced from documents attached to it.

In August 2020, Purdy filed a 28 U.S.C. § 2254 federal habeas 

petition challenging his three 2018 Kendall County sexual assault

convictions in the United States District Court, Southern District of 

Texas, San Antonio Division. On May 20, 2021, United States District 

Judge Xavier Rodriguez dismissed Purdy’s petition as barred by the 

applicable statute of limitations. On June 4, 2021, Purdy filed a notice 

of appeal.

On June 14, 2021, the Fifth Circuit notified Purdy that he must ether 

pay the $505 filing fee or file an IFP application in the district court 

within 15 days. Purdy alleges that he immediately attempted to pay the 

filing fee by filling out the appropriate withdrawal form and ensuring 

that the correct postage and mailing addresses were used. On June 18, 

2021, Warden Thomas approved Purdy’s request to withdraw $505 from 

his inmate account to pay the appellate filing fee. See ECF No. 17 at 21.

On June 25, 2021, the United States Court of Appeals for the Fifth 

Circuit granted Purdy an extension of time, giving him until July 29, 

2021 to either pay the $505 filing fee or file an IFP motion. On August 

4, 2021, the Fifth Circuit dismissed Purdy’s appeal for want of 

prosecution because he failed to timely pay the fee. 

3See Purdy v. Lumpkin, No. 5:20-CV-00944-XR (S.D. Tex. Aug. 10, 2020); see also

Purdy v. Lumpkin, No. 21-50482 (5th Cir. 2021). PACER (Public Access to Electronic 

Records) is an official website of the United States Government. See

http://pacer.uscourts.gov.

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Almost a month later, on August 31, 2021, Purdy’s withdrawal 

request form was returned to him because it was missing a “ITF-25 

Header page.” See ECF No. 17 at 23.

On September 14, 2021, Purdy filed a motion to reinstate his appeal 

on the ground that prison officials delayed processing his fee payment. 

On October 26, 2021, the Fifth Circuit denied the motion to reinstate.

On November 9, 2021, the Fifth Circuit received Purdy’s fee payment.

LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(6)

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. Terwilliger v. Reyna, 4 F.4th 270, 279 (5th Cir. 

2021) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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. Id. The plausibility standard is not akin to a 

“probability requirement,” but asks for more than a sheer possibility 

that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. 

Under this standard, all well-pleaded facts are viewed in the light 

most favorable to the plaintiff, but the plaintiff must allege facts

(emphasis added) that support each element of the cause of action in 

order to state a valid claim. See City of Clinton, Ark. v. Pilgrim’s Pride 

Corp., 632 F.3d 148, 154–55 (5th Cir. 2010). Factual allegations must be 

enough to raise a right to relief above the speculative level. City of 

Clinton, Ark., 632 F.3d at 153 (citing Iqbal, 556 U.S. at 678). The court 

does not accept as true “[t]hreadbare recitals of the elements of a cause 

of action, supported by mere conclusory statements.” Id. (citations 

omitted). Further, any ambiguities in the controlling substantive law 

must be resolved in the plaintiff’s favor. See Walker v. Beaumont Indep. 

Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (citing Lewis v. Fresne, 252 

F.3d 352, 357 (5th Cir. 2001)).

In determining whether a plaintiff’s claims survive a Rule 12(b)(6) 

motion to dismiss, the information to which the court addresses its 

inquiry is limited to (1) the facts set forth in the complaint; (2) 

documents attached to the complaint; and (3) matters of which judicial 

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notice may be taken under Federal Rule of Civil Procedure 201. Walker, 

252 F.3d at 735 (citations omitted). Judicial notice may be taken of 

matter of public record. Id. Documents attached to a motion to dismiss 

or to a response to a motion to dismiss are considered part of the 

pleadings, if they are referred to in the plaintiff’s complaint and are 

central to his claims. See Collins v. Morgan Stanley Dean Witter, 224 

F.3d 496, 498 (5th Cir. 2000). 

B. Qualified Immunity

The doctrine of qualified immunity protects public officials from 

liability for civil damages insofoar as their conduct does not violate 

clearly established statutory or constitutional rights of which a 

reasonable person would have known. Guerra v. Castillo, 82 F.4 th 278, 

285 (5th Cir. 2023) (citations omitted).

Courts undertake a two-pronged analysis to determine whether a 

government official is entitled to qualified immunity, inquiring: (1) 

whether the facts that the plaintiff has alleged make out a violation of a 

constitutional right; and (2) whether the right at issue was “clearly 

established” at the time of the defendant’s alleged conduct. Id. (citations 

omitted). Courts exercise their discretion in deciding which of the two 

pongs of the qualified immunity analysis should be addressed first. Id.

A clearly established right is one that is sufficiently clear that every 

reasonable officer would have understood that what he is doing violates 

that right. Id. The Supreme Court has repeatedly told courts not to 

define clearly established law at a high level of generality. Id. (citing 

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The dispositive inquiry is 

whether the violative nature of particular conduct is clearly established. 

This inquiry must be undertaken in light of the specific context of the 

case, not as a broad general proposition. Id.

When confronted with a qualified-immunity defense at the pleading 

stage, the plaintiff must plead facts which, if proved, would defeat the 

claim of immunity. Id. (citing Waller v. Hanlon,922 F.3d 590, 599 (5th 

Cir. 2019). The pleading standards remain the same when a motion to 

dismiss is based on qualified immunity. The crucial question is whether 

the complaint pleads facts that, if true, would permit the inference that 

Defendants are liable under § 1983, and would overcome their qualified 

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immunity defense. Id. (citing Terwilliger v. Reyna, 4 F.4th 270, 280 (5th 

Cir. 2021) (internal quotations and citations omitted). At the motion to 

dismiss stage, it is the plaintiff’s burden to demonstrate that qualified 

immunity is inappropriate. Id. (citations omitted).

B. 42 U.S.C. § 1983

To state a claim for relief under 42 U.S.C. § 1983, the plaintiff must 

allege that (1) some person has deprived him of a federal right; and (2) 

that the person acted under color of state or territorial law. See Arnold 

v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citing Gomez v. Toledo, 

446 U.S. 635, 640 (1980)). 

Prisoners have a constitutionally protected right of access to the 

courts, which is founded in the Article IV Privileges and Immunities 

Clause, the First Amendment Petition Clause, and the Fifth and 

Fourteenth Amendment Due Process Clauses. See Waller v. Hanlon, 922 

F.3d 590, 601 (5th Cir. 2019) (citations omitted). Interference with a 

prisoner’s right to access to the courts, such as delay, may result in a 

constitutional deprivation. Chriceol v. Phillips, 169 F.3d 313, 317 (5th 

Cir. 1999) (citing Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 

1986)). Arguably, withholding access to a prison account to pay for legal 

fees could, at a minimum, cause a delay in access to the courts. Id.

Withholding money from a prison account could also effectively deny 

access to obtaining an attorney, filing a complaint, or mailing other legal 

documentation. Id. 

In Lewis v. Casey, 518 U.S. 343, 350 (1996), the Supreme Court held 

that an inmate alleging denial of access to the courts must demonstrate 

an actual injury stemming from defendants’ unconstitutional conduct. 

Id. (citing Lewis, 518 U.S. at 351–54). This requires the inmate to allege 

that his ability to pursue a “nonfrivolous,” “arguable” legal claim was 

hindered. See Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009) 

(citing Christopher v. Harbury, 536 U.S. 403, 415 (2002) (internal 

quotation omitted)).

Denial-of-access claims take one of two forms: (1) forward-looking 

claims alleging “that systematic official action frustrates a plaintiff or 

plaintiff class in preparing and filing suits at the present time;” and (2) 

backward-looking claims alleging that an official action has “caused the 

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loss or inadequate settlement of a meritorious case, the loss of an 

opportunity to sue, or the loss of an opportunity to seek some particular 

order of relief.” Waller, 922 F.3d at 601 (citing Harbury, 536 U.S. at 413–

14).

ANALYSIS

Because Purdy alleges that Defendants’ actions caused him to lose 

the opportunity to seek appellate review of Judge Rodriguez’s order 

dismissing his federal habeas petition, the Court construes Purdy’s 

complaint as raising a backward-looking claim. 

“To maintain a backward-looking claim, a plaintiff must identify (1) 

a nonfrivolous underlying claim; (2) an official act that frustrated the 

litigation of that claim; and (3) a remedy that is not otherwise available 

in another suit that may yet be brought.” Id. at 62 (quoting United States 

v. McRae, 702 F.3d 806, 830–31 (5th Cir. 2012)).

Defendants contend that they are entitled to qualified immunity 

because Purdy fails to state a constitutional violation. They make only 

one argument—Purdy “does not allege any facts that he had a 

nonfrivolous underlying claim.” In other words, they contend that Purdy 

has failed to demonstrate an actual injury. They insist that Purdy must 

plead facts to show that “[he] could have successfully argued [his] appeal 

if it had not been dismissed for failure to pay the filing fee.” See ECF No. 

28.

The Court disagrees.4 “The very point of recognizing any access claim 

is to provide some effective vindication for a separate and distinct right 

to seek judicial relief for some wrong.” Christopher v. Harbury, 536 U.S. 

414–15 (2002). While the underlying cause of action must be addressed 

4The Court has conducted an exhaustive review of the jurisprudence governing 

access-to-court claims. The substantive law governing such claims is vast and complex, 

and there are many ambiguities in it, particularly with respect to the factual detail an 

inmate must provide in his pleadings to plausibly show that his underlying claim is 

nonfrivolous. However, as previously noted, at this stage of litigation, any such 

ambiguities in the controlling substantive law must be resolved in the plaintiff’s favor. 

See Walker, 938 F.3d 724 at 735. Moreover, if the Court were to adopt Defendants’ 

position, it would arguably require the Court to conduct a de novo review of Judge 

Rodriguez’s order dismissing Purdy’s habeas petition. The Court does not have 

jurisdiction to reopen and review an action dismissed by another district court. See 

Hopkins v. Eason, 104 F. App’x 448, 449 (5th Cir. 2004) (citations omitted). That is the 

precise function of an appellate court.

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by allegations in the complaint sufficient to give fair notice to a 

defendant, it generally need not be tried independently. See id. at 416.

The Fifth Circuit has, in several instances, found that an inmate’s 

allegation that he merely lost an opportunity to seek a particular type 

of relief is enough to show an actual injury for purposes of stating a

backward-looking claim. In doing so, the circuit did not address whether 

the inmate would likely prevail on his underlying claim for relief. See, 

e.g., Brewer v. Wilkinson, 3 F.3d 816, 826 (1993) (concluding that inmate 

had sufficiently alleged the element of legal prejudice for purposes of 

access claim by alleging that TDCJ mail-room employees’ actions 

prevented his writ of mandamus form arriving at the district court);

Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986) (prisoner’s appeal of 

civil suit was dismissed for failure to timely file required affidavit; 

concluding that allegations that prison mailroom personnel deliberately 

delayed delivery of prisoner’s papers stated cause of action under § 1983, 

since mailroom personnel should reasonably have known that delay 

would cause denial of right of access to courts); Koch v. Foster, 41 F.3d 

663 (5th Cir. 1994) (suggesting that inmate would have pleaded 

sufficient facts to demonstrate prejudice for purposes of a backwardlooking claim had he alleged “that any legal action was dismissed 

because of the delay, that he was unable to file an action, or that he 

missed any filing deadline due to the mishandling of his mail.”); Chriceol 

v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) (suggesting that inmate 

would have pleaded sufficient facts to demonstrate an actual injury had 

he alleged that prison officials’ delay in processing his request to 

withdraw money from his prison account to file a civil-rights complaint 

prevented him from filing the complaint); Boyd v. West, 62 F.3 397 (5th

Cir. 1995).

After reviewing the well-pleaded facts and ambiguities in the 

controlling substantive law in Purdy’s favor and taking judicial notice of 

relevant public court records, the Court concludes that Purdy has 

sufficiently alleged a nonfrivolous claim to give fair notice to 

Defendants. Purdy specifically alleges that, because of Defendants’ 

intentional delay in processing his appellate filing fee payment, he lost 

his opportunity to seek appellate review of Judge Rodriguez’s order 

dismissing his federal habeas petition. He alleges that the Fifth Circuit 

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dismissed his appeal for failure to timely pay the $505 filing fee. Purdy

provides the relevant case numbers and attaches a letter from the Fifth 

Circuit, confirming the reason for its dismissal of his appeal. In addition, 

Purdy attaches documents to his complaint, which reflect that (1) he 

made a timely request to withdraw funds from his inmate to pay the 

filing fee; and (2) there was an almost two-month delay before his 

request was returned to him with a note stating that it could not be 

processed because of a form deficiency. He did not receive notice of this 

deficiency until after the Fifth Circuit dismissed his appeal. And Purdy’s 

effort to reinstate his appeal because of the delay was rejected by the 

Fifth Circuit. Under the cases cited above, the Court concludes that 

Purdy’s factual allegations sufficiently identify a nonfrivolous 

underlying claim. 

Moreover, in their motion, Defendants do not argue that Purdy has 

failed to plead sufficient facts to satisfy the remaining two elements 

necessary to state a plausible backward-looking claim. In other words, 

they do not, at this stage of litigation, argue that Purdy failed to plead 

sufficient facts to demonstrate that their actions frustrated his ability 

to litigate his appeal or that the remedy he seeks here is not available 

in another suit that may be brought.

Under these circumstances, the concludes that Purdy has pleaded 

sufficient facts to overcome Defendants’ qualified-immunity defense at 

this stage of litigation. However, the Court expresses no opinion on 

whether Purdy will be able to overcome the defense if raised again in a 

motion for summary judgment or at trial.

Lastly, the Court concludes that Purdy’s claims for injunctive relief—

that he be released from TDCJ and relieved of his SORNA registration 

requirement—are habeas in nature and, therefore, not cognizable under 

§ 1983. See Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 

1119 (5th Cir. 1987).

CONCLUSION 

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For these reasons, Defendants’ motion to dismiss is DENIED in part 

and GRANTED in part. 

Purdy’s § 1983 claims to recover monetary damages against 

Defendants remain pending before the Court. His claims for injunctive 

relief are DISMISSED as not cognizable under § 1983. 

The Court will enter a scheduling order in due course.

SO ORDERED on this 15th day of December 2023.

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