IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSHUA LEE CARTER, #163322, §

PLAINTIFF, §

§

V. § CASE NO. 3:22-CV-1797-X-BK

§

THE STATE OF TEXAS, ET AL. §

 DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se prisoner case was 

referred to the undersigned United States magistrate judge for pretrial management, including the 

issuance of findings and a recommended disposition where appropriate. The Court granted 

Plaintiff Joshua Lee Carter (“Carter”) leave to proceed in forma pauperis (“IFP”) and withheld 

service of process pending judicial screening. As explained below, Carter’s claims should be 

DISMISSED. 

I. BACKGROUND

On July 6, 2023, in Ellis County, Carter pled guilty to, and was convicted of, seconddegree arson and sentenced to 10 years’ imprisonment.

1

 Doc. 3 at 4; Doc. 8 at 1; State of Texas 

1

In his responses to the MJQ, Carter says that the Court should sever his claims seeking habeas 

relief under 28 U.S.C. § 2241 and forgive him for not exhausting his administrative remedies for

those claims because such remedies were unavailable. Doc. 8 at 1-2. But after filing this suit, 

Carter filed a separate application for habeas relief under § 2241, which the Court denied in May 

2023. See Carter v. Norman, 3:23-CV-673-D-BN. Further, Carter plead guilty to the arson 

charge during the pendency of this suit, so any request for relief under § 2241 is moot. See 

Chadman v. Fowler, Civil Action No. 4:17-cv-703-O, 2018 WL 4051868, at *2 (N.D. Tex. Aug. 

24, 2018) (collecting cases for the proposition that a conviction moots a § 2241 petition).

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v. Joshua Lee Carter, 46935CR (443rd Jud. Dist. Ct. July 6, 2023).

2

 He now claims that he is 

wrongfully incarcerated and complains about the conditions of his confinement at the Wayne 

McCollum Detention Center (the jail), including the level of medical care. See generally Doc. 3; 

Doc. 8. 

In his complaint and responses to a magistrate judge’s questionnaire (MJQ), Carter

alleges that Ellis County Fire Marshal Tim Birdwell (Birdwell) lied to obtain a warrant for his

arrest for arson by claiming falsely that there were pictures of the fire on Carter’s phone. Doc. 8 

at 22. Carter contends that Birdwell and the City of Italy Police Department (“Italy PD”)

threatened Carter’s wife and encouraged her to lie about his whereabouts at the time of the 

crime. Doc. 3 at 6; Doc. 8 at 23. Based on this falsified evidence and coerced testimony, Italy 

PD and Birdwell “deliberately, knowingly, and willingly misled the grand jury to return a false 

indictment.” Doc. 3 at 6. The Ellis County Court and Ellis County District Attorney continued

to maliciously prosecute Carter despite the lack of evidence against him, and Carter remains 

wrongfully incarcerated. Doc. 3 at 8. 

Carter also avers that, while incarcerated, Wellpath Medical Services Corp (Wellpath), a 

private company hired by the Ellis County Sheriff’s Department Department (ECSO), denied 

Carter physical and mental health treatment, despite Carter informing Wellpath personnel that he 

was a “20% disabled veteran” due to multiple surgeries on his left knee, PTSD and depression, 

and a concussion he sustained earlier in the day. Doc. 3 at 8; Doc. 8 at 13. Carter additionally 

alleges he was given a temporary bottom-bunk pass pending receipt of his medical records from 

the United States Department of Veterans Affairs (VA), which took six months to obtain, and his 

bottom-bunk pass expired in the meantime. Doc. 8 at 13-14. Carter complains that due to 

2 Docket information available online at https://public.lgsonlinesolutions.com/ors.html (search

Ellis County District Clerk and Joshua Lee Carter) (last accessed September 22, 2023). 

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Wellpath’s “negligence” in failing to timely obtain his medical records, he is now “40% 

disabled.” Doc. 8 at 14.

Among Carter’s other complaints are that (1) he wasn’t permitted to see a psychologist

and was “cut off” from his medications, Doc. 8 at 14; (2) unspecified “agents” of the ECSO

opened his clearly marked legal mail in his absence and prevented him from accessing the law 

library, Doc. 3 at 8; Doc. 8 at 27; (3) the ECSO violated his right to privacy by hiring a private 

company to screen inmates’ legal mail, Doc. 3 at 10; (4) jail policy is sexist and discriminatory

in that books and magazines must comply with the “visitation dress code,” but pictures of 

shirtless men are allowed, Doc. 8 at 27; (5) despite complaints from Carter, Ellis County failed to 

put an OSHA-approved ladder on his bunk to allow him to move between the top bunk and floor 

safely after his low-bunk pass expired, in violation of the American with Disability Act (ADA), 

Doc. 3 at 8-10; Doc. 8 at 14, 20, 32; and (6) the handicapped shower seat is unstable and does 

not drain and he was denied psychiatric treatment, also in violation of the ADA, Doc. 8 at 32. 

Carter asserts claims under 42 U.S.C. § 1983 and the ADA, and names as Defendants the 

State of Texas, Birdwell, Italy PD, the ECSO, Wellpath, the City of Italy, and Ellis County. 

Doc. 3 at 3; Doc. 8 at 24-25, 28-29. He seeks monetary and punitive damages in excess of

$100,000 or $1,000,000 per defendant, a federal investigation into Defendants’ actions, and for 

the Court to subpoena records from Ellis County that are pertinent to his allegations.

3

 Doc. 3 at 

16, 18; Doc. 8 at 16, 23, 28. 

3 The Court lacks that ability to order an investigation into Carter’s complaints. See Kates v. 

Micieli, Civil Action No. 2:09-1447, 2010 WL 55916, at *1 (W.D. La. Jan. 4, 2010) (collecting 

cases). And subpoenas would be inappropriate, as the Court has not ordered service of Carter’s 

complaint and finds that he fails to state a claim. 

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II. LAW AND ANALYSIS

As a prisoner proceeding pro se and in forma pauperis, Carter’s complaint is subject to 

screening under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Those statutes provide 

for the sua sponte dismissal of a complaint if the Court finds that it (1) is frivolous or malicious, 

(2) fails to state a claim upon which relief can be granted, or (3) 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). A complaint lacks 

an arguable basis in law when it is premised “on an indisputably meritless legal theory,” Id. at 

327, and fails to state claim upon which relief can be granted if it does not 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). 

The Court must always liberally construe the pleadings of pro se litigants. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (noting pro se pleadings “must be held to less stringent 

standards than formal pleadings drafted by lawyers”); cf. FED. R. CIV. P. 8(e) (“Pleadings must 

be construed so as to do justice.”). Even under the most liberal construction, however, Carter

fails to state a claim.

A. Sovereign Immunity 

Carter’s claims against the State of Texas, Doc. 3 at 3, are barred by sovereign immunity. 

Eleventh Amendment immunity bars suit against a state, regardless of whether money damages 

or injunctive relief is sought. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 69-71 (1989)

(states are not persons subject to suit under section 1983 because of the Eleventh Amendment). 

Therefore, Carter’s claims for monetary damages against the State of Texas under Section 1983 

should be dismissed without prejudice. 

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B. Non-Jural Entities 

Federal courts in Texas have uniformly held that entities without a separate jural 

existence, such as municipal police departments, are not subject to suit. See, e.g., Darby v. 

Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991); Gordan v. Neugebauer, No. 1:14-

CV-0093-J, 2014 WL 5531734, at *5 (N.D. Tex. Oct. 31, 2014). Thus, Carter’s claims against 

Italy PD and the ECSO should be dismissed with prejudice. Darby, 939 F.2d at 313; Jeffery v. 

Dallas Cty. Med. Exam, 37 F.Supp.2d 525, 529 (N.D. Tex. 1999). 

C. Heck Bar 

Carter sues Birdwell in his official and individual capacities for malicious prosecution. 

Doc. 8 at 22-23. As for the individual-capacity claim4, the doctrine espoused in Heck v.

Humphrey, 512 U.S. 477 (1994), bars any challenge to Carter’s arrest and state conviction under 

Section 1983. 

“In Heck, the Supreme Court held that if a plaintiff’s civil rights claim for damages 

challenges the validity of his criminal conviction or sentence, and the plaintiff cannot show that 

such conviction or sentence has been reversed, invalidated, or otherwise set aside, the claim is 

not cognizable under § 1983.” Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019) (per curiam) 

(citing Heck, 512 U.S. at 486-87). Put differently, Heck bars a judgment that “necessarily

imp[ies] the invalidity” of a conviction unless that conviction has been reversed, invalidated, or 

otherwise set aside. See Heck, 512 U.S. at 487. 

4 The claim against Birdwell in his official capacity is, in essence, a claim against Birdwell’s 

employer, Ellis County. See, e.g., Gore v. Cedar Hill Indep. School Dist., No. 3:15-cv-3963-MBN, 2016 WL 4597513, at *5 (N.D. Tex. July 26, 2016), rec. accepted 2016 WL 4593515 (N.D. 

Tex. Sept. 2, 2016). As explained below, Carter fails to plausibly allege a claim against Ellis 

County. 

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Here, a ruling in Carter’s favor against Birdwell would necessarily implicate the 

invalidity of Carter’s arson conviction because Carter claims that he was arrested and prosecuted 

based on evidence that Birdwell fabricated and testimony that Birdwell coerced. And Carter has 

not alleged that his conviction has been reversed, invalidated, or otherwise set aside, so Heck

bars these claims. See, e.g., Villegas v. Galloway, 458 F. App’x 334, 337 (5th Cir. 2012) (per 

curiam) (civil rights claims such as use of perjured testimony and fabricated evidence barred by 

Heck). Thus, Carter’s claims against Birdwell in his individual capacity should be dismissed

with prejudice until the Heck conditions are satisfied. 

D. Municipal Liability 

Carter’s Section 1983 claims against Wellpath, Ellis County, and the City of Italy should 

be dismissed because he fails to plausibly allege municipal liability under Monell v. Dep’t of Soc. 

Serv., 436 U.S. 658 (1978). 

i. Wellpath

Carter alleges that Ellis County hired Wellpath to administer medical services at the jail 

and that Wellpath professionals failed to provide adequate physical and mental healthcare. Doc. 

3 at 8; Doc. 8 at 13, 14. “‘A private company...that has been hired to run the medical department 

at a [ ] jail is treated as a municipal or local governmental entity for the purposes of 42 U.S.C. § 

1983, and, therefore, claims against such a company are analyzed as Monell claims.’” Alexander 

v. Southern Health Partners, Inc., Civil Action No. 3:22-cv-0395-X, 2023 WL 3961704, at *7 

(N.D. Tex. June 12, 2023) (quoting Guillotte v. Knowlin, Civil Action No. 21-1422, 2021 WL 

7632004, at *2 (E.D. La. Dec. 7, 2021), rec. accepted 2022 WL 355509 (E.D. La. Feb. 07, 

2022)) (citation omitted). “Proof of municipal liability sufficient to satisfy Monell requires: (1) 

an official policy (or custom), of which (2) a policy maker can be charged with actual or 

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constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy (or 

custom).” Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). The third Monell prong 

encompasses both “the causal link (‘moving force’) and the city’s degree of culpability 

(‘deliberate indifference’ to federally protected rights.)” Snyder v. Trepagnier, 142 F.3d 791, 

796 (5th Cir. 1998). 

The only Wellpath policy or custom that Carter identifies is a policy to have counselors 

“‘screen’ inmates to determine their eligibility for medication.” Doc. 8 at 31. However, he does 

not identify a policy maker or establish that the policy was deliberately indifferent to his 

federally protected rights. Further, the Court is not aware of any authority suggesting that the 

use of a mental health counselor to screen inmates for psychological medications or care is 

unlawful. Finally, Carter does not and cannot establish that the policy actually caused his 

alleged injury of being without medication, since he admits he refused to even speak with the 

counselor. Doc. 8 at 14. Under these facts, it is unknown whether Carter would have been seen 

by a doctor or if the medication ultimately would have been prescribed, since he was

uncooperative. 

Thus, Carter fails to state a Section 1983 claim against Wellpath. 

ii. Ellis County 

Carter alleges that Ellis County is liable because it employs Birdwell and contracted with 

Wellpath and is therefore responsible for their actions. Doc. 8 at 24. This argument lacks merit. 

A municipality cannot be liable under § 1983 on a respondeat superior theory. See Monell, 436 

U.S. at 691.

Next, although Carter complains about many conditions of his confinement, the only 

condition he attempts to blame on an Ellis County custom or policy is the purported prison 

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policy pursuant to which “magazines for males are to adhere to ‘visitation dress code,’ but 

magazines with shirtless men are allowed....” Doc. 8 at 27. He claims that because of the 

policy, specifically, the “discriminatory and sexist behavior of jail staff,” he has not received 

several magazines that his family bought for him. Doc. 8 at 27. 

Under Turner v. Safley, 482 U.S. 78, 89 (1987), a prison regulation that impinges on an 

inmate’s constitutional rights is “valid if it is reasonably related to legitimate penological 

interests.” 482 U.S. at 89. In conducting that analysis, courts consider: (1) whether there is “a 

‘valid, rational connection’ between the prison regulation and the legitimate governmental 

interest put forward to justify it”; (2) “whether there are alternative means of exercising the right 

that remain open to prison inmates”; (3) “ the impact accommodation of the asserted 

constitutional right will have on guards and other inmates, and on the allocation of prison 

resources generally”; and (4) whether there are “obvious, easy alternatives” to the regulation. Id.

at 89-91. “The inmate has the burden of demonstrating that there is no rational relationship to a 

legitimate penological interest.” Keys v. Torres, 737 F. App’x 717, 719 (5th Cir. 2018) (per 

curiam) (citing Prison Legal News, 683 at 216); Overton v. Bazzetta, 539 U.S. 126, 132 (2003)). 

Carter does not meet that burden here. His allegations are vague and conclusory. Indeed, 

it is not even clear from his allegations what the terms of the challenged policy are. He fails to 

plausibly allege that the policy he challenges is not rationally related to a legitimate penological 

interest. Finally, to the extent that Carter is challenging “discrimination and sexist behavior by 

jail staff,” he fails to connect this to an Ellis County policy or custom. See Monell, 436 U.S. at 

691. 

Consequently, Carter fails to state a Section 1983 claim against Ellis County.

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iii. City of Italy

Carter claims that the City of Italy is liable because it “assisted in the investigation of 

Tim Birdwell,” and is therefore partly responsible for Birdwell’s alleged fabrication of evidence. 

Doc. 8 at 28. He claims that it is a custom of the City of Italy to seek aid from Ellis County and 

work alongside it on criminal cases, and, because of that, Birdwell was able to engage in his 

malicious prosecution. Doc. 8 at 29. 

Carter’s theory is akin to respondeat superior liability because he seeks to hold the City 

of Italy responsible because another entity that it worked with employed a tortfeasor. Again, as 

discussed supra, Section 1983 proscribes respondeat superior liability.

Thus, Carter fails to state a Section 1983 claim against the City of Italy.

E. ADA Claims

Carter claims that Ellis County violated the ADA by (1) not installing OSHA-compliant 

ladders on his bunk bed so that he can reach the top bunk, (2) denying him psychiatric treatment, 

and (3) preventing him from showering “most of the time” because the “handicapped shower 

seat is unstable and does not drain.” Doc. 8 at 32. However, the only physical injury that Carter 

raises is further deterioration of his knee, which he does not allege is connected to having to

climb into his bunk. Doc. 8 at 14. Because the Court would have to speculate that the further 

deterioration of Carter’s knee was due to the lack of an accommodation, or that he was injured at 

all be the inactions about which he complains, Carter has not sufficiently plead a physical injury 

in relation to his ADA claims. See Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 469 (5th 

Cir. 2016) (“We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing 

complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief 

above the speculative level.”) (citations omitted). 

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The Prison Litigation Reform Act (PLRA), Title 42 U.S.C. § 1997e(e) provides that “[n]o 

federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional 

facility, for mental or emotional injury suffered while in custody without a prior showing of 

physical injury or the commission of a sexual act.” This provision applies to ADA claims. See, 

e.g., Cassidy v. Indiana Dept. of Corr., 199 F.3d 374, 376-77 (7th Cir. 2000); Morrison v. Smith 

Cty. Jail, Civil Action No. 6:19CV301, 2021 WL 11484450, at *7 (E.D. Tex. Jan. 21, 2021)

(applying PLRA’s physical injury requirement to ADA claims). It does not, however, limit a 

plaintiff’s ability to pursue nominal and punitive damages based on a violation of his 

constitutional rights. Hutchins v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007). 

Here, Carter seeks monetary damages, including punitive damages. Given the lack of 

physical injury in relation to this claim, however, he is not entitled to compensatory damages. 42 

U.S.C. § 1997(e)(e). And punitive damages are not available under the ADA, so he is not 

entitled to those either. See, e.g., Kennemer v. Denton Cty., Civil Action No. 4:20-CV-00080-

RAS-CAN, 2023 WL 2584924, at *8 (E.D. Tex. Mar. 1, 2023), rec. accepted 2023 WL 2574569 

(E.D. Tex. Mar. 20, 2023) (citing Barnes v. Gorman, 536 U.S. 181, 189 (2002)) (further citation 

omitted). 

Finally, Carter does not appear to seek nominal damages. In his complaint, he says that 

he wants the Court to award “both monetary and punitive damages in excess of one million 

dollars to the plaintiff by defendants in an amount to be determined and ordered by the Court.” 

Doc. 3 at 16. In his MJQ responses, as against Ellis County, he seeks “both monetary damages 

in excess of $100,000 to be determined by the Court and punitive damages by way of fines and 

fees to be determined by the Court.” Doc. 8 at 24. Given the amount of money sought, the 

Court does not construe his pleadings as seeking nominal damages. See, e.g., Regalado v. Mgmt. 

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and Training Corp., No. 22-10034, 2023 WL 142087, at *2, n.4 (5th Cir. Jan. 10, 2023) (per 

curiam) (affirming finding that the plaintiff only sought compensatory damages when the 

operative pleading stated he was seeking damages in excess of $5,000,000 and did not elaborate 

on the type of damages that he sought in distinction to his prior pleadings that explicitly 

referenced nominal and punitive damages). 

In sum, absent allegations of a physical injury in relation to the claim, Carter is not 

entitled to the damages he seeks under the ADA, and such claims should be dismissed. 

III. LEAVE TO AMEND

Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to

dismissal, but leave is not required when he has already pled his “best case.” Brewster v. Dretke, 

587 F.3d 764, 767-68 (5th Cir. 2009). A verified questionnaire response allows a plaintiff to 

plead his best case and is a valid way for a pro se litigant to amend his complaint. See Nixon v. 

Abbott, 589 F. App’x 279 (5th Cir. 2015) (per curiam). Here, Carter responded to a detailed 

MJQ designed to allow him to present his best case. He has plead his best case in relation to the 

Section 1983 claims, and those claims are clearly meritless. He should not be granted further 

leave to amend those claims. 

With respect to the ADA claims, however, it is not clear Carter cannot allege facts that 

would allow him to clear PLRA’s physical injury bar. Thus, he should be granted the

opportunity to amend his ADA claims to cure the deficiencies noted above, if possible. 

IV. CONCLUSION

For the foregoing reasons, Carter’s claims against the State of Texas should be

DISMISSED WITHOUT PREJUDICE, as barred by sovereign immunity. His individualcapacity claims against Birdwell should be DISMISSED WITH PREJUDICE to their being 

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reasserted before the Heck conditions are satisfied, and his remaining Section 1983 claims should 

be DISMISSED WITH PREJUDICE for the reasons outlined here. Carter’s ADA claim 

against Ellis County should likewise be DISMISSED WITH PREJUDICE, unless within 14 

days of this recommendation, he files an amended complaint against Ellis County curing the 

deficiencies in those claims noted above.

SO RECOMMENDED on September 22, 2023. 

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided 

by law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which 

objection is made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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 Services Automobile Ass’n, 79 F.3d 1415, 

1417 (5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days).

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