United States Court of Appeals

for the Fifth Circuit ____________

No. 21-20560

____________

Luis E. Class, 

Plaintiff—Appellant, 

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division; Kimberly Klock; Kelly L. 

Strong; Christopher S. Lacox; Lisa M. Nichols; Candy 

L. Montgomery; Cesar Trevino; Isaac J. Clark, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:20-CV-3440

______________________________

Before King, Stewart, and Haynes, Circuit Judges.

Per Curiam:*

Luis E. Class, Texas prisoner # 2303801, filed a pro se civil action 

against eight officials of the Texas Department of Criminal Justice 

(“TDCJ”). He alleged violations of his rights as a person with a disability 

under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 26, 2023

Lyle W. Cayce

Clerk

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(“ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. 

(“RA”). He also sought relief under 42 U.S.C. § 1983 for alleged violations 

of his Eighth Amendment rights.1 The district court sua sponte dismissed his 

claims against some of the defendants pursuant to 28 U.S.C. § 1915A and 

later granted the remaining defendants’ motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). The suit was dismissed with 

prejudice, and Class appealed.2

For the reasons that follow, we AFFIRM the district court’s 

dismissal of Class’s claims. However, given that this appeal involves his

original complaint, we VACATE the portion of the district court’s order 

dismissing the aforementioned claims with prejudice, and REMAND with 

instructions to dismiss those claims without prejudice so that Class can have 

an opportunity to replead his claims with sufficient factual allegations that 

may satisfy the pleading standard.

I.

We review de novo the district court’s dismissal of a claim under 

Federal Rule of Civil Procedure 12(b)(6) and section 1915A(b)(1) for failure 

to state a claim. Legate v. Livingston, 822 F.3d 207, 210 (5th Cir. 2016). 

“Under that standard, a complaint will survive . . . if it contains sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on 

its face.” Id. (internal quotation marks and citation omitted). Although Class 

has counsel now on appeal, he proceeded pro se at the district court, and thus 

_____________________

1 Class’s complaint also includes several allegations against TDCJ officers for 

mishandling his grievances. These allegations are not pertinent here since the district court 

dismissed them upon screening, and Class does not challenge their dismissal on appeal. 

2Although Class proceeded in the district court pro se, he is represented by counsel 

on appeal.

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he is entitled to a liberal reading of his complaint. Estelle v. Gamble, 429 U.S. 

97, 106 (1976).

II.

In his complaint, Class stated that he has a back injury that he 

sustained in 2011 while serving in the military. Over a decade later, his 

mobility is still limited as he currently walks with a cane. The alleged events 

arise from two separate incidents which, according to Class, aggravated this 

injury. Neither incident, however, amounts to a violation of his Eighth 

Amendment rights or his rights under the ADA and RA.

The first incident involved TDCJ officer Candy Montgomery. Class 

alleged that she violated his Eighth Amendment right to be free from cruel 

and unusual punishment when she forced him to sit on the floor, along with 

other inmates, during an emergency incident. When he could not comply, he 

told her about his injuries, but she nonetheless threatened and punished him 

with six hours in administrative segregation where he had no mattress and no 

utensils or kitchenware. The district court held that Class failed to state a 

claim because mere threats do not amount to a constitutional violation, and 

the Constitution does not mandate comfortable prisons. On appeal, Class 

alleges that the district court improperly minimized his claims because the 

crux of his suit was not that his cell was uncomfortable, but that he was forced 

to perform an act beyond his physical capabilities.

Although we do not agree with the district court’s reasoning, we agree 

with its outcome. See Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 

F.3d 476, 486 (5th Cir. 2002). The Eighth Amendment prohibits a prison 

official from acting with “‘deliberate indifference’ to a substantial risk of 

serious harm to an inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).

This is an “extremely high standard to meet.” Domino v. Tex. Dep’t of Crim.

Just., 239 F.3d 752, 756 (5th Cir. 2001). Class must show an objective 

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exposure “to a substantial risk of serious harm.” Lawson v. Dall. Cnty., 286 

F.3d 257, 262 (5th Cir. 2002) (citing Farmer, 511 U.S. at 834). He must then

show that the defendant: “(1) was ‘aware of facts from which the inference 

could be drawn that a substantial risk of serious harm exists’; (2) subjectively 

‘dr[e]w the inference’ that the risk existed; and (3) disregarded the risk.” 

Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (quotation omitted).

Class fails to show an objective exposure to a substantial risk of serious 

harm. Farmer, 511 U.S. at 834. His allegations of pain from attempting to sit 

on the ground during an emergency incident are vague and they do not 

exemplify a risk “so grave that it violates contemporary standards of decency 

to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 

25, 36 (1993) (emphasis in original); Martin v. Seal, 510 F. App’x 309, 316

(5th Cir. 2013) (per curiam) (unpublished) (emphasizing that the plaintiff did 

“not identif[y] with any specificity the ailments or symptoms (aside from 

asthma and a vague reference to back pain) he claims were caused by 

Appellants’ alleged deliberate indifference”). 

Likewise, Class fails to meet the high deliberate indifference standard 

on his individual capacity claim against TDCJ Officer Cesar Trevino. Class

alleges that he was relocated four times over the course of several days after 

he developed a high temperature during the COVID-19 pandemic. 

Throughout each relocation, he was forced to walk the stairs “up and down, 

without help,” with his cane, and carry all of his belongings, including a 

mattress weighing “more than 20 pounds.” After the third relocation, Class 

alleged that he told a sergeant about his disabilities. That sergeant spoke with

Trevino who responded that there were no restrictions allowed and

threatened him with disciplinary action.

Here, Class fails to allege that Trevino knew of the risk associated with 

requiring him to take the stairs or that he “drew the inference” that such a 

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risk existed. Cleveland, 938 F.3d at 676. Class attached a medical form to his 

complaint showing that during the time of the second incident, he was 

restricted to the ground floor only and from lifting more than 20 pounds. 

However, he does not allege that he informed the sergeant that talked to 

Trevino that he (Class) had this medical form, and it is also unclear whether 

Trevino knew of Class’s injuries, restrictions, or use of a cane. Thus, Class’s 

Eighth Amendment claims against Trevino and Montgomery were properly 

dismissed. See Farmer, 511 U.S. at 834.

III.

In addition to his Eighth Amendment claims, Class appeals the 

dismissal of his ADA and RA claims for damages against TDCJ officials Lori 

Davis,

3 Kelly Strong, Christopher Lacox, Trevino, and Montgomery in their 

official capacities.4 These allegations likewise fail to state a claim upon which 

relief may be granted. Because the “[t]he language in the ADA generally 

tracks the language set forth in the RA” these claims are usually addressed 

together. Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir. 2002) 

(quotation omitted). To establish a prima facie case of discrimination, Class 

must show:

(1) that he is a qualified individual within the meaning of the 

ADA; (2) that he is being excluded from participation in, or 

being denied benefits of, services, programs, or activities for 

_____________________

3 Bobby Lumpkin, the new director of the Correctional Institutions Division of the 

TDCJ has been substituted for Davis as a defendant in this action. 

4 Class also alleges that his ADA and RA claims are not subject to dismissal under 

Eleventh Amendment immunity, and Defendants do not dispute this. It is unclear whether 

the district court dismissed Class’s ADA and RA claims when it broadly dismissed his 

official capacity claims on grounds of Eleventh Amendment immunity because it went on 

to address these claims on the merits. Nonetheless, because we find that Class has failed to 

state a claim under the RA and ADA, we need not address this issue on appeal.

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which the public entity is responsible, or is otherwise being 

discriminated against by the public entity; and (3) that such 

exclusion, denial of benefits, or discrimination is by reason of 

his disability.

Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).

5

The parties do not dispute the first prong—Class has a qualifying 

disability. Nevertheless, Class fails to meet the second prong as to the

incident where he was placed in segregation for not sitting on the floor. Class 

argues that he was denied the benefit of safe prison housing. He relies on

Epley v. Gonzalez, a case in which this court held that a plaintiff with PTSD 

and a single-cell medical restriction was denied the benefits of safe prison 

housing when officials placed him in a multi-occupancy cell. 860 F. App’x 

310, 311, 314 (5th Cir. 2021) (per curiam) (unpublished). That case is 

inapposite because Class fails to show that, like the plaintiff in Epley, his 

temporary placement in a segregation unit amounted to a denial or exclusion 

from any benefits or services. See Valentine v. Collier, 993 F.3d 270, 290 (5th 

Cir. 2021).

As to the incident where Class was forced to climb multiple flights of 

stairs, we assume arguendo that he has met the second prong. See Cadena v. 

El Paso Cnty., 946 F.3d 717, 724 (5th Cir. 2020) (“[A] disabled inmate’s right 

to mobility within a prison is well-established.”). However, Class’s 

allegations do not overcome the third prong, which can be satisfied by a 

showing that a defendant failed to make a reasonable accommodation. 

_____________________

5 To recover compensatory damages, the plaintiff must also allege intentional 

discrimination. Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 574 (5th 

Cir. 2018). Such a showing is not completely defined but “intent requires that the 

defendant at least have actual notice.” Id. a 575. “Unlike other circuits, we have not held 

that deliberate indifference suffices” to meet this standard. Smith v. Harris Cnty., 956 F.3d 

311, 318 (5th Cir. 2020) (citing Miraglia, 901 F.3d at 574).

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Windham v. Harris Cnty., 875 F.3d 229, 235–36 (5th Cir. 2017). To establish 

such a claim, the plaintiff has the burden “to specifically identify the 

disability and resulting limitations, and to request an accommodation in 

direct and specific terms” or show that “the disability, resulting limitation, 

and necessary reasonable accommodation were open, obvious, and apparent 

to the entity’s relevant agents.” Id. at 237. Class alleges that he was deprived 

of reasonable accommodations when he was ordered to sit on the floor and 

forced to climb stairs carrying his belongings because he had previously 

informed officials about his injuries. 

However, “[m]ere knowledge of the disability is not enough; the 

service provider must also have understood the limitations the plaintiff 

experienced . . . as a result of that disability.” Id. (quotation and internal 

marks omitted) (emphasis in original). Class does not allege that he requested 

any accommodations, such as assistance walking up the stairs, in direct and 

specific terms. His complaint also does not show that his resulting limitation 

and the accommodations that he needed were open, obvious, and apparent. 

He does not state that he informed anyone, including Trevino, of his medical 

restrictions or that Trevino saw him with a cane. Nor does he explain on 

appeal what sort of accommodations he believes should have been provided.

Thus, even under the more liberal construction, he has failed to state a prima 

facie case to support his ADA and RA claims. See Windham, 875 F.3d at 238 

(holding that an official’s knowledge of the prisoner’s neck disability alone 

was not enough to meet the knowledge requirement).

IV.

Lastly, while the district court was correct in its holding, it is a close 

call as to whether the district court should have dismissed the case with 

prejudice. This issue calls the court to ask, “whether within the universe of 

theoretically provable facts there exists a set which can support a cause of 

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action under this complaint, indulgently read.” Moawad v. Childs, 673 F.2d 

850, 851 (5th Cir. 1982) (quotation omitted). Having reviewed this 

complaint, we cannot say that there is no set of facts here that can support a 

well-pleaded claim such that a dismissal with prejudice is warranted. See id. 

(“If dismissal of a pro se complaint is warranted, it should be without 

prejudice to allow an inmate to file an amended complaint.”). Indeed, unlike 

when Class drafted the instant complaint, he now has counsel who has ably 

briefed and argued the case. Aided by counsel, if Class repleads the case, he

may very well be able to further develop his claims to satisfy the pleading 

standard. Accordingly, the aforementioned claims should be dismissed 

without prejudice. See id.; cf. Jones v. Greninger, 188 F.3d 322, 326–27 (5th 

Cir. 1999) (per curiam) (affirming dismissal of pro se complaint with 

prejudice because the plaintiff alleged his best case as the court could not 

perceive any viable claim that he could include in an amended complaint).

V.

In sum, we AFFIRM the district court’s dismissal of Class’s ADA 

and RA claims for damages against Montgomery, Trevino, Lumpkin, Strong, 

and Lacox in their official capacities and Eighth Amendment claims for 

damages against Montgomery and Trevino in their individual capacities. 

Because Class has abandoned all other claims, the district court’s rulings are 

AFFIRMED in all other respects. However, we VACATE the portion of 

the district court’s order dismissing the claims discussed in Sections II-IV

with prejudice, and REMAND with instructions to dismiss those claims

without prejudice.

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