IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DANIEL LEMONS, #53313-074, )

Plaintiff, )

vs. ) No. 3:22-CV-1824-B-BH

)

FNU MOQUIN, et al., )

Defendants. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the plaintiff’s claims should be

DISMISSED without prejudice for lack of subject matter jurisdiction.

I. BACKGROUND

Daniel Lemons (Plaintiff), a federal prisoner formerly incarcerated in the Federal

Correctional Institution in Seagoville, Texas (FCI-Seagoville), sues its warden, several medical staff

members, all the kitchen staff, and a guard, in their official capacities only, for negligence. (docs.

3 at 3; 10 at 1-7, 10; 17 at 3.)2

 He also appears to sue the Bureau of Prisons (BOP). (doc. 3 at 1, 5.)

He claims that upon his arrival at the facility in May 2022, the medical and kitchen staff, the warden,

and the assistant wardens were notified of his severe food allergies, and that he should have received

special diet trays. (docs. 3 at 4; 10 at 11.) Because he failed to receive special diet trays, in July

2022, he experienced a severe allergic reaction after eating food that contained onions. (docs. 3 at

5; 10 at 11.) He immediately notified an officer and medical staff members, but they just said to let

them know if anything happened and disregarded his “emergency of [his] progressing allergic

reaction.” (Id.; doc. 10 at 2, 8-9.) After about 15 minutes, he was finally brought a shot of Benadryl

1

 By Special Order No. 3-251, this pro se case has been automatically referred for full case management. 

2

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers

at the bottom of each filing.

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 1 of 6 PageID 90
to counter his reaction. (docs. 3 at 5; 10 at 1, 8, 10.) Even after his reaction, he was still not provided

a special diet, and he had another allergic reaction to onions in October 2022. (docs. 3 at 4; 10 at 4;

11 at 1-2.) 

Plaintiff seeks monetary damages and a prison transfer. (docs. 3 at 5; 10 at 2-5, 7, 12; 17 at

3.) No process has been issued.

II. PRELIMINARY SCREENING

Plaintiff is a federal inmate who has been permitted to proceed in forma pauperis. As a

prisoner seeking redress from an officer or employee of a governmental entity, his complaint is

subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578,

579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is

also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua

sponte dismissal of the complaint, or any portion thereof, if the court finds it is frivolous or

malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

against a defendant who is immune from such relief.

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). Courts follow the same analysis in determining whether a

complaint fails to state a claim under § 1915(e)(2)(B)(ii) as when ruling on a motion to dismiss

under Rule 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam). A complaint

fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Neither mere “labels and conclusions” nor “a formulaic recitation of the elements of a cause of

action” suffice to state a claim upon which relief may be granted. Id.

2

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 2 of 6 PageID 91
III. SOVEREIGN IMMUNITY

Plaintiff sues BOP and the individual defendants in their official capacities only. (See doc.

10 at 1-7.)3 Official capacity suits against federal employees are treated as suits against the United

States. See Ischy v. Miles, 75 F. App’x 257, 258 (5th Cir. 2003) (citing Kentucky v. Graham, 473

U.S. 159, 166 (1985)). Lawsuits against the United States are generally barred by sovereign

immunity. Id. (citing Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th

Cir. 1999)). “The basic rule of federal sovereign immunity is that the United States cannot be sued

at all without the consent of Congress.” Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.

273, 287 (1983). “Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Because federal sovereign immunity

is jurisdictional in nature, the consent or waiver must be unequivocally expressed. Freeman v.

United States, 556 F.3d 326, 335 (5th Cir. 2009). The terms of the consent or waiver define the

jurisdictional boundaries to entertain the suit. Meyer, 510 U.S. at 475. In general, the scope of a

waiver of sovereign immunity is strictly construed “in favor of the sovereign.” Gomez-Perez v.

Potter, 553 U.S. 474, 491 (2008). Plaintiff has the burden to show an “unequivocal waiver of

sovereign immunity.” St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 315 (5th Cir.

2009).

Congress has waived the United States’ sovereign immunity for claims arising from torts

committed by federal employees through the Federal Tort Claims Act (FTCA). See 28 U.S.C. §§

1346(b)(1), 2671-2680; Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). Plaintiff has

expressly stated that he is not suing under the FTCA, however, and that he does not want to amend

3

 Plaintiff’s responses to the magistrate judge questionnaire are an amendment to his pleadings. See Macias v. Raul A.

(Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

3

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 3 of 6 PageID 92
his complaint to sue the United States under the FTCA. (See doc. 17 at 1-2.) He has therefore not

identified any waiver to sovereign immunity. Because he failed to show unequivocal waiver of the

United States’ sovereign immunity for his claims for monetary damages, these claims against BOP

and the individual defendants in their official capacities should be dismissed without prejudice based

on sovereign immunity. See, e.g., Pinson v. Fed. Bureau of Prisons, 647 F. App’x 375, 375-76 (5th

Cir. 2016) (per curiam) (“The district court correctly determined that the BOP was entitled to

sovereign immunity.”); Carvajal v. United States, No. 3:20-CV-567-S-BK, 2021 WL 2814883, at

*2 (N.D. Tex. May 11, 2021), adopted by 2021 WL 2808966, 2021 WL 2808966 (N.D. Tex. July

6, 2021) (citation omitted) (“Likewise, [the plaintiff’s] official capacity claims against Morris are

barred by sovereign immunity because Morris’ actions in his official capacity are considered those

of his federal agency employer (the U.S. probation office).”) (citing Kentucky, 473 U.S. at 165-67).4

IV. PRISON TRANSFER

In addition to monetary relief, Plaintiff requests to be transferred from FCI-Seagoville to a

different correctional facility. (See doc. 10 at 7.) He has not been housed in that facility since May

2023, however. (See doc. 18.) “The Fifth Circuit and district courts in Texas have repeatedly held

that transfer to another prison renders moot any claim for declaratory or injunctive relief sought

related to penitentiary-specific remedies.” Kennemer v. Denton Cnty., No. 4:20-CV-00080-RASCAN, 2023 WL 2584924, at *8 (E.D. Tex. Mar. 1, 2023), adopted by 2023 WL 2574569 (E.D. Tex.

Mar. 20, 2023) (citing cases); see Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995) (finding

prisoner’s requested transfer to a different prison was moot because he had received the transfer);

4

 Even if Plaintiff’s claims are liberally construed as arising under the FTCA, jurisdiction would still be lacking because

he has not alleged that he exhausted his administrative remedies before filing suit. See McAfee v. 5th Circuit Judges, 884

F.2d 221, 222-23 (5th Cir. 1989) (per curiam) (exhaustion of administrative remedies is a jurisdictional prerequisite to

suit under the FTCA, and absent compliance with this requirement, district courts are without jurisdiction).

4

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 4 of 6 PageID 93
White v. Epps, 191 F. App’x 336, 337 (5th Cir. 2006) (same). Because Plaintiff is no longer

incarcerated in FCI-Seagoville, his claim for a transfer from that facility is moot. See Flaming v.

Alvin Community College, 777 F. App’x 771, 772 (5th Cir. 2019) (holding that claim was properly

dismissed as moot “where the cause of action is no longer live”) (quoting Henschen v. City of

Houston, 959 F.2d 584, 587 (5th Cir. 1992)); see, e.g., Hamer v. Cent. Off. Admin. Remedy, No.

4:19-CV-115-O, 2021 WL 389789, at *3 (N.D. Tex. Feb. 4, 2021) (dismissing claim for a prison

transfer because it was rendered moot by prisoner’s release from confinement).

V. LEAVE TO AMEND

The Fifth Circuit is inclined to give pro se plaintiffs several opportunities to state a claim

upon which relief can be granted. See Scott v. Brynes, No. 3:07-CV-1975-D, 2008 WL 398314, at

*1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D.

Tex. Feb. 13, 2001). Courts therefore typically allow pro se plaintiffs an opportunity to amend their

complaints when the action is to be dismissed pursuant to a court order. See Robinette v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr.

12, 2004); Sims, 2001 WL 627600, at *2. 

Leave to amend is not necessary, however, where the plaintiff has already plead his best

case. See Wiggins v. La. State Univ.—Health Care Servs. Div., 710 F. App’x 625, 627 (5th Cir.

2017) (citations omitted). Here, Plaintiff responded to two detailed questionnaires and therefore has

been able to plead his best case. His claims lack merit. Further leave to amend is neither necessary

nor warranted. See, e.g., Duke v. Dallas Cty., No. 3:20-CV-117-G (BH), 2021 WL 3525106, at *3

(N.D. Tex. June 25, 2021), adopted by 2021 WL 3204565 (N.D. Tex. July 29, 2021). 

5

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 5 of 6 PageID 94
VI. RECOMMENDATION

Plaintiff’s claims should be DISMISSED without prejudice for lack of subject matter

jurisdiction.

SIGNED on this 26th day of October, 2023.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 14 days after being served with a copy. 

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

6

Case 3:22-cv-01824-B-BH Document 21 Filed 10/26/23 Page 6 of 6 PageID 95