IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

MARK ROBERTSON, et al., § 

 § 

 Plaintiffs, § 

 § 

v. § Civil Action No. 9:23-CV-0023

 § 

BRYAN COLLIER, et al., § 

 § 

 Defendants. § 

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO 

FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

GRANT DORFMAN

Deputy First Assistant Attorney General

SHAWN E. COWLES 

Deputy Attorney General for Civil 

Litigation

SHANNA E. MOLINARE, Chief, 

Law Enforcement Defense Division

MICHAEL J. CALB* 

Assistant Attorney General 

Texas State Bar No. 24077883

Michael.Calb@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

Law Enforcement Defense Division

P.O. Box 12548 (MC 012)

Austin, Texas 78711-2548

(512) 463-2080/Fax: (512) 370-9814

ATTORNEYS FOR DEFENDANTS 

______________________________________________ 

* Counsel of Record

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ii

TABLE OF CONTENTS

I. STATEMENT OF THE CASE..........................................................................................1

II. FACTUAL ALLEGATIONS..............................................................................................2

III. ISSUES TO BE DECIDED BY THE COURT................................................................3

IV. STANDARD OF REVIEW...............................................................................................4

V. ARGUMENT.....................................................................................................................4

A. Plaintiffs lack standing to challenge access to medical care or 

access to counsel on Polunsky Death Row. ..................................................................4

1. Plaintiffs fail to allege concrete and particularized injuries that have actually 

 resulted, or will imminently result, from inadequate access to medical care. .......6

2. Plaintiffs fail to allege any actual prejudice to contemplated or 

 existing litigation resulting from inadequate access to counsel................................7

B. Plaintiffs’ official-capacity claims under the Texas Constitution 

are barred by Defendants’ Eleventh Amendment sovereign immunity........................8

C. The Court lacks jurisdiction to provide relief under 18 U.S.C. § 3599...........................9

D. Plaintiffs fail to state any constitutional claim. ...........................................................10

1. Plaintiffs fail to state an Eighth Amendment 

 conditions-of-confinement claim......................................................................................10

2. Plaintiffs’ generalized allegations of limited access to medical care 

 do not rise to the level of an Eighth Amendment violation. .....................................17

3. Plaintiffs fail to state a Fourteenth Amendment due process claim.......................18

4. Plaintiffs fail to state a Sixth Amendment claim. .........................................................24

E. Plaintiffs’ requested injunction is not permitted by Federal Rule 65 or the PLRA.....26

F. Plaintiffs’ claims for compensatory damages arising from access to medical care

and counsel are barred by the PLRA’s physical injury requirement...........................27

G. Plaintiffs’ individual-capacity claims are barred by qualified immunity. ...................28

VI. CONCLUSION...............................................................................................................30

CERTIFICATE OF SERVICE............................................................................................... 31

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iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Duke,

73 F. App’x 766 (5th Cir. 2003) ................................................................................................................18

Ashcroft v. Iqbal,

556 U.S. 662 (2009).......................................................................................................................................4

Ball v. LeBlanc,

792 F.3d 584 (5th Cir. 2015)......................................................................................................................27

Barbee v. Collier,

No. 22-70011, 2022 WL 16860944 (5th Cir. Nov. 11, 2022) ...............................................................27

Baze v. Parker,

632 F.3d 338 (6th Cir. 2011)......................................................................................................................10

Beatty v. Collier,

No. 4:22-cv-3658, 2022 WL 16722364 (S.D. Tex. Nov. 4, 2022)........................................................30

Beatty v. Lumpkin,

No. 4:09-cv-225, 2022 WL 5417480 (E.D. Tex. Sept. 16, 2022)..................................................... 9, 10

Beatty v. Lumpkin,

52 F.4th 632 (5th Cir. 2022).......................................................................................................................10

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007).......................................................................................................................................4

Bell v. Avila,

No. 4:11-CV-4238, 2013 WL 11730661 (S.D. Tex. June 25, 2013).............................................. 25, 30

Blank v. Eavenson,

530 F. App’x 364 (5th Cir. 2013) ..............................................................................................................16

Bradt v. Smith,

634 F.2d 796 (5th Cir. 1981)......................................................................................................................30

Brown v. Callahan,

623 F.3d 249 (5th Cir. 2010)......................................................................................................................29

Buffington v. Valdez,

No. 3:07-cv-260, 2007 WL 2719885 (N.D. Tex. Sept. 28, 2007).........................................................30

Carswell v. Camp,

54 F.4th 307 (5th Cir. 2022).......................................................................................................................28

Christensen v. Scott,

95 F.2d 46, 1996 WL 405492, at *1 (5th Cir. 1996) ...............................................................................26

CleanCOALition v. TXU Power,

536 F.3d 469 (5th Cir. 2008)........................................................................................................................4

Cleveland v. Bell,

938 F.3d 672 (5th Cir. 2019)......................................................................................................................11

Conn. Dep’t of Pub. Safety v. Doe,

438 U.S. 1 (2003).........................................................................................................................................21

Craft v. Collier,

No. 9:18-cv-151, 2020 WL 4950900 (E.D. Tex. July 7, 2020)................................................................6

Croft v. Gov. of Tex.,

562 F.3d 735 (5th Cir 2009).........................................................................................................................5

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 3 of 39 PageID #: 11
iv

Cummings v. State,

No. AP-76923, 2014 WL 12713256 (Tex. Crim. App. 2014) ...............................................................25

Curry v. State,

No. AP-77033, 2017 WL 781740 (Tex. Crim. App. Mar. 1, 2017)......................................................25

Daigre v. Maggio,

719 F.2d 1310 (5th Cir. 1983)....................................................................................................................12

Davis v. Scott,

157 F.3d 1003 (5th Cir. 1998)....................................................................................................................10

DeMarco v. Davis,

914 F.3d 383 (5th Cir. 2019)......................................................................................................................26

Dillard v. Davis,

No. 19-CV-81, 2022 WL 3045747 (N.D. Tex. June 17, 2022)...................................................... 12, 29

Does 1-7 v. Abbott,

945 F.3d 307 (5th Cir. 2019)............................................................................................................... 21, 23

Domino v. TDCJ,

239 F.3d 752 (5th Cir. 2001)......................................................................................................................11

Ex parte Young,

209 U.S. 123 (1908).......................................................................................................................................8

Farmer v. Brennan,

511 U.S. 825 (1994)........................................................................................................................11, 14, 16

Fields v. Davis,

No. 818746, 2022 WL 818746 (E.D. Tex. Feb. 24, 2022).....................................................................13

Finley v. United States,

490 U.S. 545 (1989).......................................................................................................................................9

Pa. v. Finley,

481 U.S. 551 (1987).....................................................................................................................................25

Ford v. State,

919 S.W.2d 107 (Tex. Crim. App. 1996)..................................................................................................25

Foulds v. Corley,

833 F.2d 52 (5th Cir. 1987)........................................................................................................................12

Frank v. Gaos,

139 S. Ct. 1041 (2019)...................................................................................................................................5

Franklin v. Lynaugh,

487 U.S. 164 (1988).....................................................................................................................................23

Gagne v. City of Galveston,

671 F. Supp. 1130 (S.D. Tex. 1987)..........................................................................................................18

Geiger v. Jowers,

404 F.3d 371 (5th Cir. 2005)......................................................................................................................28

Grant v. Collins,

No. 93-7316, 3 F.3d 439, 1993 WL 347234 (5th Cir. 1993)..................................................................17

Green v. Ferrell,

801 F.2d 765 (5th Cir. 1986)............................................................................................................... 13, 14

Green v. Harris Cnty., Tex,

No. H-16-893, 2019 WL 338243 (S.D. Tex. Jan. 28, 2019) ..................................................................16

Hamilton v. Lyons,

74 F.3d 99 (5th Cir. 1996)..........................................................................................................................12

Harlow v. Fitzgerald,

457 U.S. 800 (1982).....................................................................................................................................28

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v

Harper v. Showers,

174 F.3d 716 (5th Cir. 1999)......................................................................................................................11

Harris v. Hegmann,

198 F.3d 153 (5th Cir. 1999)......................................................................................................................17

Hawkins v. Trent Flying Serv.,

45 F. App’x 325, 2002 WL 1899587 (5th Cir. July 9, 2002)..................................................................28

Helling v. McKinney,

509 U.S. 25 (1993).......................................................................................................................................11

Hennington v. Gorsuch,

No. 6:20-cv-302, 2022 WL 18276844 (E.D. Tex. Nov. 28, 2022).................................................. 7, 26

Hernandez ex rel. Hernandez v. Texas Dep’t of Prot. & Reg. Serv.,

380 F.3d 872 (5th Cir. 2004)............................................................................................................... 11, 28

Hernandez v. Velasquez,

522 F.3d 556 (5th Cir. 2008)............................................................................................................... 10, 14

Hill v. Estelle,

537 F.2d 214 (5th Cir. 1976)......................................................................................................................15

Hogan v. Cunningham,

722 F.3d 725 (5th Cir. 2013)......................................................................................................................29

Hope v. Harris,

861 F. App’x 571 (5th Cir. 2021) .......................................................................................... 11, 12, 13, 29

Howery v. Allstate Ins. Co.,

243 F.3d 912 (5th Cir. 2001)........................................................................................................................4

Hudson v. McMillian,

503 U.S. 1 (1992).........................................................................................................................................11

Hutchins v. McDaniels,

512 F.3d 193 (5th Cir. 2007)......................................................................................................................28

Hutto v. Finney,

437 U.S. 678 (1978).....................................................................................................................................11

In re Sepulvado,

707 F.3d 550 (5th Cir. 2013)......................................................................................................................25

Jackson v. Boland,

No. 2:12-CV-0212, 2014 WL 947567 (N.D. Tex. Mar. 11, 2014)........................................................17

Jaros v. Ill. Dep’t of Corr.,

684 F.3d 667 (7th Cir. 2012)......................................................................................................................13

Johnson v. Dallas Indep. Sch. Dist.,

38 F.3d 198 (5th Cir. 1994)........................................................................................................................10

Johnson v. Texas,

509 U.S. 350 (1993).....................................................................................................................................23

Jurek v. Texas,

428 U.S. 262 (1976).....................................................................................................................................23

Lawson v. Dallas Cnty.,

286 F.3d 257 (5th Cir. 2002)......................................................................................................................17

Lewis v. Casey,

518 U.S. 343 (1996)........................................................................................................................5, 7, 8, 30

Lewis v. Scott,

28 F.4th 659 (5th Cir. 2022).........................................................................................................................8

Little v. KPMG LLP,

575 F.3d 533 (5th Cir. 2009)........................................................................................................................5

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 5 of 39 PageID #: 13
vi

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).......................................................................................................................................5

Manget Bros., Inc. v. Bank of Greenwood, Miss.,

381 F.2d 91 (5th Cir. 1967)........................................................................................................................24

Mathews v. Eldridge,

424 U.S. 319 (1976).............................................................................................................................. 18, 23

McKinley v. Abbott,

643 F.3d 403 (5th Cir. 2011)........................................................................................................................9

Meachum v. Fano,

427 U.S. 215 (1976).............................................................................................................................. 18, 20

Mendoza v. Lynaugh,

989 F.2d 191 (5th Cir. 1993)......................................................................................................................17

Meyer v. Brown & Root Const. Co.,

661 F.2d 369 (5th Cir. 1981)......................................................................................................................26

Meza v. Livingston,

607 F.3d 392 (5th Cir. 2010)......................................................................................................................23

Mitchell v. Forsyth,

472 U.S. 511 (1985).....................................................................................................................................28

Moore v. Tarrant Cnty., Tex.,

No. 4:21-cv-1206, 2022 WL 1524131 (N.D. Tex. May 12, 2022)........................................................28

Morrissey v. Brewer,

408 U.S. 471 (1972).....................................................................................................................................21

Myers v. Klevenhagen,

97 F.3d 91 (5th Cir. 1996)..........................................................................................................................14

Novak v. Beto,

453 F.2d 661 (5th Cir. 1971)............................................................................................................... 12, 29

O’Shea v. Littleton,

414 U.S. 488 (1974).......................................................................................................................................5

Payne v. Sutterfield,

No. 2:17-cv-211, 2020 WL 5237747 (N.D. Tex. Sep. 2, 2020)...................................................... 15, 16

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984).................................................................................................................................... 8, 9

Peterson v. Peshoff,

No. 99-31120, 216 F.3d 1079, 2000 WL 729077 (5th Cir. May 9, 2000)............................................14

Pharmacy Buying Ass’n v. Sebelius,

906 F. Supp. 604 (W.D. Tex. Oct. 29, 2012)...................................................................................... 9, 10

Pichardo v. Kinker,

73 F.3d 612 (5th Cir. 1996)........................................................................................................................12

Plotkin v. IP Axess.,

407 F.3d 690 (5th Cir. 2005)........................................................................................................................4

Prieto v. Clarke,

780 F.3d 245 (4th Cir. 2015).................................................................................................. 19, 20, 21, 30

Public Citizen, Inc. v. Bomer,

274 F.3d 212 (5th Cir. 2001)................................................................................................................... 5, 6

Raines v. Byrd,

521 U.S. 811 (1997).......................................................................................................................................5

Ramming v. U.S.,

281 F.3d 158 (5th Cir. 2001)........................................................................................................................4

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vii

Rhodes v. Chapman,

452 U.S. 337 (1981).............................................................................................................................. 10, 11

Roberts v. Fuentes,

No. 21-40036, 2022 WL 1548667 (5th Cir. May 16, 2022)...................................................................26

Roberts v. Lozada,

No. 5:21-cv-170, 2021 WL 5969301 (N.D. Tex. Nov. 23, 2021).........................................................27

Robertson v. State,

871 S.W.2d 701 (Tex. Crim. App. 1993)..................................................................................................25

Ruiz v. Estelle,

679 F.2d 1115 (5th Cir. 1982)....................................................................................................................13

Sanchez v. U.S. Postal Serv.,

785 F.2d 1236 (5th Cir. 1986)....................................................................................................................25

Sandin v. Conner,

515 U.S. 472 (1995)........................................................................................................................18, 19, 20

Serrano v. Customs & Border Patrol,

975 F.3d 488 (5th Cir. 2020)......................................................................................................................21

Simmons v. Smith,

No. 6:17-cv-557, 2018 WL 4999963 (E.D. Tex. July 20, 2018)..............................................................9

Speer v. Lumpkin,

860 F. App’x 66 (5th Cir. 2021) ................................................................................................................23

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016).......................................................................................................................................5

Stanley v. Foster,

464 F.3d 565 (5th Cir. 2006)......................................................................................................................22

Striz v. Collier,

No. 3:18-cv-202, 2020 WL 7868102 (S.D. Tex. Nov. 24, 2020)..........................................................15

Talib v. Gilley,

138 F.3d 211 (5th Cir. 1998)......................................................................................................................13

Taylor v. Sterrett,

532 F.2d 462 (5th Cir. 1976)......................................................................................................................25

Texas v. EEOC,

933 F.3d 433 (5th Cir. 2019)......................................................................................................................26

Thornburgh v. Abbott,

490 U.S. 401 (1989).....................................................................................................................................30

Trulove v. Cerliano,

No. 6:20-cv-618, 2021 WL 5933123 (E.D. Tex. Nov. 15, 2021) .................................................... 7, 26

Umondak v. Ginsel,

426 F. App’x 267 (5th Cir. 2011) ..............................................................................................................14

United Steel. Paper & Forestry v. Anderson,

No. SA-17-CV-1242, 2018 WL 3017366 (W.D. Tex. June 15, 2018)....................................................9

Urias v. Hudson,

No. 5:09-cv-130, 2010 WL 3257967 (E.D. Tex. July 16, 2010)............................................................14

Varnado v. Lynaugh,

920 F.2d 320 (5th Cir. 1991)......................................................................................................................17

Whitaker v. Collier, 

862 F.3d 490 (5th Cir. 2017)................................................................................................................. 7, 25

Whitaker v. Livingston,

No. CV H-13-2901, 2016 WL 3199532 (S.D. Tex. June 6, 2016)..........................................................7

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Wilkerson v. Goodwin

774 F.3d 845, 851-57 (5th Cir. 2014).................................................................................... 19, 20, 21, 29

Wilkinson v. Austin,

545 U.S. 209 (2005).............................................................................................................................passim

Williams v. Banks,

956 F.3d 808 (5th Cir. 2020)......................................................................................................................14

Wilson v. Seiter,

501 U.S. 294 (1991).....................................................................................................................................13

Wolff v. McDonnell,

418 U.S. 539 (1974).....................................................................................................................................18

Statutes

18 U.S.C. § 3599..................................................................................................................................2, 3, 9, 10

18 U.S.C. § 3626(a)(1)......................................................................................................................................27

42 U.S.C. § 1983....................................................................................................................................9, 10, 13

42 U.S.C. § 1997e(e) ........................................................................................................................................28

Art. I § 13 of the Texas Constitution......................................................................................................... 2, 9

Tex. Code Crim. Proc. art. 37.071....................................................................................................22, 23, 24

Tex. Penal Code § 12.31(a).............................................................................................................................22

Rules

Federal Rule of Civil Procedure 12(b) ..................................................................................................... 4, 10

Federal Rule of Civil Procedure 65 ................................................................................................2, 3, 26, 27

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 8 of 39 PageID #: 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

MARK ROBERTSON, et al., § 

 § 

 Plaintiffs, § 

 § 

v. § Civil Action No. 9:23-CV-0023

 § 

BRYAN COLLIER, et al., § 

 § 

 Defendants. § 

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO 

FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)

Defendants Bryan Collier (“Collier”), Bobby Lumpkin (“Lumpkin”), and Daniel Dickerson 

(“Dickerson”), through the Office of the Attorney General of Texas, file this motion to dismiss 

Plaintiffs Mark Robertson (“Robertson”), George Curry (“Curry”), Tony Egbuna Ford (“Ford”) and 

Rickey Cummings (“Cummings”)’ claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6). In support, Defendants offer the following:

I. STATEMENT OF THE CASE

Plaintiffs are four Texas prisoners who were convicted of capital offenses. During the 

sentencing phase of each of their criminal trials, juries of their peers were asked to determine whether

“there [was] a probability that [Plaintiffs] would commit criminal acts of violence that would constitute 

a continuing threat to society.” Tex. Code Crim. Proc. art. 37.071. All four juries found beyond a 

reasonable doubt that there was such a probability and sentenced Plaintiffs to death. Until their 

execution dates, Plaintiffs remain confined to the custody of the Texas Department of Criminal Justice 

(“TDCJ”) on death row at the Polunsky Unit in Livingston, Texas (“Polunsky Death Row”). 

Through this putative class action, Plaintiffs challenge various alleged conditions and 

restrictions on Polunsky Death Row. ECF No. 1 (“Compl.”). Specifically, they complain that their 

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 9 of 39 PageID #: 17
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indefinite, automatic placement in restrictive housing with limited access to medical care and counsel 

violates their rights under the Sixth, Eighth, and Fourteenth Amendments, as well as under 18 U.S.C. 

§ 3599 and Art. I § 13 of the Texas Constitution. Id. Plaintiffs sue TDCJ’s Executive Director 

(Collier), TDCJ’s Correctional Institutions Division Director (Lumpkin), and the current Polunsky

Unit Warden (Dickerson), all in both their official and individual capacities. Id. at ¶¶ 35-37. Plaintiffs 

seek a declaration of wrongdoing, a generalized injunction barring future violations, as well as 

compensatory, nominal, and punitive damages. Id. at p. 33-44.

Defendants assert multiple, overlapping bases for dismissal of Plaintiffs’ claims. First, 

Plaintiffs lack standing to challenge their access to medical care or counsel because they do not allege 

any injury in fact caused by that lack of access. Second, Plaintiffs’ claims under the Texas Constitution, 

brought against Defendants in their official capacities only, are barred by Eleventh Amendment 

immunity. Third, because 18 U.S.C. § 3599 is merely a funding statute and does not create a private 

cause of action, the Court lacks jurisdiction to provide any relief under that section. Fourth, Plaintiffs’ 

allegations do not state any viable constitutional claim. Fifth, the generalized injunctive relief Plaintiffs

seek is not permitted by Federal Rule of Civil Procedure 65 or the Prison Litigation Reform Act 

(“PLRA”). Sixth, Plaintiffs’ claims for compensatory damages arising from lack of access to medical

care and counsel are barred by the PLRA’s physical injury requirement. Finally, Defendants are 

entitled to qualified immunity with respect to Plaintiffs’ individual-capacity claims because there has 

been no constitutional violation alleged and, even if there had been, Defendants acted reasonably in 

light of clearly established law. For these reasons, each of which is expanded upon below, Plaintiffs’ 

claims must be dismissed with prejudice at the pleading stage. 

II. FACTUAL ALLEGATIONS

Since 1999, TDCJ has maintained a blanket policy of housing all death row inmates on 

Polunsky Death Row until their execution dates. Compl. at ¶ 10. Like all inmates on Polunsky Death 

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Row, Plaintiffs are housed individually. Id. Their cells measure 8 by 12 feet in size, and each contains

a sink, toilet, mattress, and window. Id. at ¶¶ 2, 41. While Plaintiffs are required to spend most of 

their time in their cells, they are permitted out-of-cell physical recreation as often as every day. Id. at 

¶¶ 42-43. They are also permitted phone calls with the outside world, and to converse with other 

inmates with whom they share “close quarters.” Id. at ¶¶ 42, 45. Plaintiffs do not contend that their 

cells are dirty, or that they are deprived of proper hygiene in any way. 

Each Plaintiff alleges unique mental and physical injuries attributable to prolonged solitary 

confinement. Id. at ¶¶ 16-18, 20-22, 27-27, 29-32. Plaintiffs also allege that inmates on Polunsky 

Death Row have inadequate access to medical care (id. at ¶¶ 45-47), but they do not claim to have 

personally suffered any actual or imminent injuries from that inadequate access. Plaintiffs’ final claim

is that inmates on Polunsky Death Row face restrictions on communicating with their counsel, 

including limits on the frequency and duration of attorney visits and phone calls. Id. at ¶¶ 48-60. 

However, Plaintiffs do not contend that these alleged restrictions have resulted in actual prejudice to 

ongoing or potential litigation. 

III. ISSUES TO BE DECIDED BY THE COURT

A. Do Plaintiffs have standing to challenge access to medical care or access to counsel on 

Polunsky Death Row?

B. Are Plaintiffs’ claims under the Texas Constitution barred by the Eleventh Amendment? 

C. Does the Court have jurisdiction to provide relief under 18 U.S.C. § 3599?

D. Do Plaintiffs’ allegations state any constitutional claim upon which relief may be granted?

E. Is the generalized injunctive relief that Plaintiffs seek permissible under Federal Rule of 

Civil Procedure 65 or the PLRA?

F. Are Plaintiffs’ claims for compensatory damages arising from alleged lack of access to 

medical care and counsel barred by the PLRA’s physical injury requirement?

G. Are Defendants entitled to qualified immunity with respect to Plaintiffs’ individualcapacity claims?

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4

IV. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) permits a party to move for dismissal for lack of 

subject-matter jurisdiction. In determining whether subject-matter jurisdiction exists, a court “must 

presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal 

jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 

(5th Cir. 2001). “A case is properly dismissed for lack of subject matter jurisdiction when the court 

lacks the statutory or constitutional power to adjudicate the case.” CleanCOALition v. TXU Power, 536 

F.3d 469, 473 (5th Cir. 2008) (internal quotation omitted). “When a Rule 12(b)(1) motion is filed in 

conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional 

attack before addressing any attack on the merits.” Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).

Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal when an 

opposing party fails to state a claim upon which relief may be granted. “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) (quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. 662 at 678 (citing Twombly, 550 U.S. at 556). Thus, while the 

Court must accept all factual allegations as true, the Court “do[es] not accept as true conclusory 

allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess., 407 F.3d 690, 

696 (5th Cir. 2005); see also Iqbal, 556 U.S. at 679.

V. ARGUMENT

A. Plaintiffs lack standing to challenge access to medical care or access to counsel on 

Polunsky Death Row.

The Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” 

U.S. Const. art. III, § 2. “One element of the case-or-controversy requirement is that [plaintiffs], 

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 12 of 39 PageID #: 20
5

based on their complaint, must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 

818 (1997). Constitutional standing, like other jurisdictional requirements, is not subject to waiver and 

demands “strict compliance.” Id. at 819; Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996). To have standing,

a plaintiff must satisfy three elements: “(1) an ‘injury in fact’ that is (a) concrete and particularized and 

(b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; 

and (3) the likelihood that a favorable decision will redress the injury.” Croft v. Gov. of Tex., 562 F.3d 

735, 745 (5th Cir 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “The party 

invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561. 

“At the pleading stage, general factual allegations of injury resulting from the defendant’s 

conduct may suffice.” Lujan, 504 U.S. at 561. However, “the injury-in-fact requirement requires a 

plaintiff to allege an injury that is both ‘concrete and particularized.’” Spokeo, Inc. v. Robins, 578 U.S. 

330, 334 (2016) (emphasis in original) (internal quotation omitted). Thus, “allegations of injury that 

is merely conjectural or hypothetical do not suffice to confer standing.” Little v. KPMG LLP, 575 F.3d 

533, 540 (5th Cir. 2009). Moreover, a “generalized grievance” is insufficient; plaintiffs must allege an

injury that “affect[s] the plaintiff in a personal and individual way.” Public Citizen, Inc. v. Bomer, 274 

F.3d 212, 218-19 (5th Cir. 2001) (quoting Lujan, 504 U.S. at 560 & n. 1).

“That a suit may be a class action . . . adds nothing to the question of standing.” Lewis v. 

Casey, 518 U.S. 343, 357 (1996). In a putative class action, the “named plaintiffs who represent a class 

must allege and show that they personally have been injured, not that injury has been suffered by 

other, unidentified members of the class to which they belong and which they purport to represent.” 

Id. “[F]ederal courts lack jurisdiction if no named Plaintiff has standing.” Frank v. Gaos, 139 S. Ct. 

1041, 1046 (2019); see also O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“[I]f none of the named Plaintiffs 

purporting to represent a class establishes the requisite of a case or controversy with the defendants, 

none may seek relief on behalf of himself or any other member of the class.”). 

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Here, Plaintiffs allege that inmates on Polunsky Death Row lack adequate access to medical 

care and legal counsel. Compl. at ¶¶ 45-47, 134-47, 160-65. However, because Plaintiffs do not 

identify any injury in fact resulting from that allegedly inadequate access, their claims arising therefrom 

must be dismissed for lack of standing. 

1. Plaintiffs fail to allege concrete and particularized injuries that have actually 

resulted, or will imminently result, from inadequate access to medical care.

Plaintiffs allege that inmates on Polunsky Death Row “often must wait hours—or days or 

weeks—to receive medical care” and that the cell-side visits they do receive are in public, “inhibiting 

the prisoners’ ability to have private or sensitive conversations with medical staff.” Compl. at ¶¶ 45-

46. They further allege that TDCJ “does not offer adequate monitoring of mentally ill prisoners who 

are sentenced to death” and that “staffing shortages have made medication distribution and regular 

wellness checks exceedingly difficult and irregular.” Id. at ¶ 47. These generalized allegations are 

insufficient to confer standing, however, absent further allegations that Plaintiffs personally suffered 

(or imminently will suffer) concrete injuries attributable to their delayed or restricted access to medical 

care. See Bomer, 274 F.3d at 218-19; Craft v. Collier, No. 9:18-cv-151, 2020 WL 4950900, at *2 (E.D. 

Tex. July 7, 2020) (allegations that several inmates had been injured by prison conditions was 

insufficient to confer standing where plaintiff had “neither alleged nor demonstrated that he was 

injured as a result.”) (emphasis added), rec. adopted, 2020 WL 4933670 (E.D. Tex. Aug. 24, 2020). 

While Plaintiffs do claim to suffer from various medical and mental health conditions, they 

allege that those conditions were caused and/or exacerbated by prolonged housing in solitary 

confinement, not by any denial of medical care:

• Robertson alleges that, as the result of “extreme isolation and lack of stimulation,” he has 

gained weight, suffered a decline in cardiac health, and developed tinnitus, PTSD, and anxiety. 

Compl. at ¶¶ 17-18. He does not allege that he has been denied access to medical care, much 

less that he has suffered (or imminently will suffer) an injury as a result of that denial.

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• Ford alleges that poor nutrition on Polunsky Death Row has caused decreased pigmentation 

in his skin, and that “the extreme isolation he experiences every day has drastically damaged 

his mental health.” Id. at ¶¶ 25-27. He does not allege that he has been denied access to 

medical care, much less that he has suffered (or imminently will suffer) an injury as a result. 

• Curry alleges that his “prolonged detention in solitary confinement has caused, and 

exacerbated, his mental health issues.” Id. at ¶ 22. He also alleges that the number of 

healthcare visits he receives for his “chronic liver problems” has recently decreased to once 

per year (id. at ¶ 21), but he does not identify any concrete injury which has resulted (or 

imminently will result) from that alleged decrease.

• Cummings alleges that, “as the result of solitary confinement,” he has gained weight and 

developed hypertension and anxiety. Id. at ¶¶ 30-31. He also alleges that he is unable to seek 

medical attention for his anxiety because of “lack of privacy” (id. at ¶ 30), but he does not 

assert that that impediment has resulted (or imminently will result) in any concrete injury. 

Accordingly, Plaintiffs lack standing to challenge the constitutionality of their access to medical 

care on Polunsky Death Row.

2. Plaintiffs fail to allege any actual prejudice to contemplated or existing 

litigation resulting from inadequate access to counsel.

An inmate only has standing to challenge his access to courts if he has suffered an “actual 

injury” stemming from the purported restriction. Lewis v. Casey, 518 U.S. 343, 351 (1996). Specifically, 

he must plead “actual prejudice with respect to contemplated or existing litigation, such as the inability 

to meet a filing deadline or to present a claim.” Id. at 354. This requirement has been extended to 

cases where, as here, inmates’ access to courts has allegedly been compromised through restrictions 

on interaction with counsel. See, e.g., Hennington v. Gorsuch, No. 6:20-cv-302, 2022 WL 18276844, at *6 

(E.D. Tex. Nov. 28, 2022) (dismissing inmate’s claim challenging restrictions on attorney 

communication because he had not alleged actual prejudice as a result of those restrictions), rec. adopted, 

2023 WL 175171 (E.D. Tex. Jan 12, 2023); Trulove v. Cerliano, No. 6:20-cv-618, 2021 WL 5933123, at 

*3-4 (E.D. Tex. Nov. 15, 2021) (same), rec. adopted, 2021 WL 5930848 (E.D. Tex. Dec. 15, 2021); 

Whitaker v. Livingston, No. CV H-13-2901, 2016 WL 3199532, at *7 (S.D. Tex. June 6, 2016) (same), 

aff'd sub nom. Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017).

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Plaintiffs allege that inmates on Polunsky Death Row face various impediments to accessing 

their counsel, including limits on the length and frequency of attorney visits and phone calls and delays 

in receiving legal mail. Compl. at ¶¶ 48-57. They further allege that inmates on Polunsky Death Row 

are provided only indirect access to the law library, limiting their access to legal materials. Id. at ¶ 59. 

However, because Plaintiffs do not allege that these impediments have resulted in actual prejudice to 

contemplated or existing litigation, they lack standing to sue. See Lewis, 518 U.S. at 351-52.

B. Plaintiffs’ official-capacity claims under the Texas Constitution are barred by

Defendants’ Eleventh Amendment sovereign immunity.

The Eleventh Amendment prohibits suits against a state—including suits against state actor 

in their official capacities—unless the state has waived its immunity or Congress has abrogated 

immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). Where applicable, 

it provides a “jurisdictional bar [that] applies regardless of the nature of the relief sought.” Id. at 100. 

In Ex parte Young, 209 U.S. 123, 159-60 (1908), the Supreme Court created a narrow exception to 

Eleventh Amendment immunity allowing plaintiffs “to sue a state officer in his official capacity for an 

injunction to stop ongoing violations of federal law.” Lewis v. Scott, 28 F.4th 659, 663 (5th Cir. 2022). 

The Ex parte Young exception “has been accepted as necessary to permit the federal courts to vindicate 

federal rights and hold state officials responsible to ‘the supreme authority of the United States.’” 

Pennhurst, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209 U.S. at 160)).

In Pennhurst, the Supreme Court unequivocally held that Young does not apply to officialcapacity claims for alleged violations of state law in federal court, even where only equitable relief is 

sought. Id. The Court reasoned that state law claims do not implicate the federal supremacy concerns 

supporting Ex parte Young, and that supplemental jurisdiction is insufficient to abrogate sovereign 

immunity. Id. 106-112, 119–21. Moreover, the Court explained, letting a federal court tell state 

officials how to follow state law would be an “intrusion on state sovereignty” and would “conflict

directly with the principles of federalism that underlie the Eleventh Amendment.’” Id. at 106. 

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Relying on Pennhurst, the Fifth Circuit has held that the Eleventh Amendment bars officialcapacity claims for injunctive and declaratory relief to redress alleged violations of the Texas 

Constitution. See McKinley v. Abbott, 643 F.3d 403, 405–06 (5th Cir. 2011). Several district courts have 

followed suit, dismissing such claims at the Rule 12(b) stage. See, e.g., Simmons v. Smith, No. 6:17-cv557, 2018 WL 4999963, at *5 (E.D. Tex. July 20, 2018) (relying on Pennhurst and McKinley to dismiss 

official-capacity claims for equitable relief under the Texas Constitution), rec. adopted, 2018 WL 

4269551 (E.D. Tex. Sept. 8, 2018), aff’d, 744 F. App’x 228 (5th Cir. 2019); United Steel. Paper & Forestry

v. Anderson, No. SA-17-CV-1242, 2018 WL 3017366, at *9 (W.D. Tex. June 15, 2018) (same); Pharmacy 

Buying Ass’n v. Sebelius, 906 F. Supp. 604, 619 (W.D. Tex. Oct. 29, 2012) (same).

This case calls for a similarly straightforward application of Pennhurst and McKinley. In addition 

to their various federal claims, Plaintiffs bring state law claims against Defendants—in their official 

capacities only—for alleged violations of Art. I § 13 of the Texas Constitution. Compl. at ¶¶ 119-123. 

To redress those alleged violations, Plaintiffs seek injunctive and declaratory relief. Id. The Court 

cannot provide such relief, however, without violating Defendants’ Eleventh Amendment immunity. 

See Pennhurst, 465 U.S. at 105-06; McKinley, 643 F.3d at 405-06. 

C. The Court lacks jurisdiction to provide relief under 18 U.S.C. § 3599.

A federal court’s subject-matter jurisdiction is limited and extends only as far as the authority 

granted to it by Congress. Finley v. United States, 490 U.S. 545, 550 (1989). Title 18 U.S.C. § 3599 

“provides funding to indigent capital defendants for attorneys and related services but does not confer 

jurisdiction on the federal courts to compel state action.” Beatty v. Lumpkin, No. 4:09-cv-225, 2022 

WL 5417480, at *1 (E.D. Tex. Sept. 16, 2022), aff’d, 52 F.4th 632 (5th Cir. 2022) (“[Section 3599] is a 

funding law, not a law that grants federal courts authority to oversee the scope and nature of federally 

funded legal representation.”). In this way, the Fifth Circuit has contrasted Section 3599 with 42 

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U.S.C. § 1983 and other statutes which “specifically grant causes of action that provide a federal court 

with jurisdiction to issue a remedy.” Id. at 636.

Here, in addition to their Sixth Amendment access-to-counsel claim, Plaintiffs assert that 

Defendants’ actions have impeded their statutory right to counsel under 18 U.S.C. § 3599. Comp. at 

¶¶ 134-147, 160-165. To redress that alleged violation, Plaintiffs seek both equitable and monetary 

relief. Id. However, because Section 3599 is merely a funding law and does not create a private cause 

of action, the Court must dismiss Plaintiffs’ claims under that section for want of jurisdiction. See

Beatty, 52 F.4th at 636; Baze v. Parker, 632 F.3d 338, 345 (6th Cir. 2011) (“[Section 3599] provides a 

federal court with no jurisdiction to issue any order beyond the authorization of funds.”).

D. Plaintiffs fail to state any constitutional claim.

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

Constitution and a violation of that right by one or more state actors. See Johnson v. Dallas Indep. Sch. 

Dist., 38 F.3d 198, 200 (5th Cir. 1994). Plaintiffs fail to allege any such violation, warranting dismissal 

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

1. Plaintiffs fail to state an Eighth Amendment conditions-of-confinement claim.

It is well-settled that “the Constitution does not mandate comfortable prisons,” and that 

prison conditions may be “restrictive and even harsh” without running afoul of the Eighth 

Amendment. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (quoting Rhodes v. Chapman 452

U.S. 337, 347 (1981)). Prison conditions only constitute cruel and unusual punishment if they involve 

the “wanton and unnecessary infliction of pain” or if they are “grossly disproportionate to the severity 

of the crime warranting imprisonment.” Rhodes, 452 U.S. at 347. 

A prisoner must satisfy a two-part test, consisting of an objective and a subjective component, 

to state an Eighth Amendment conditions-of-confinement claim. See Davis v. Scott, 157 F.3d 1003, 

1006 (5th Cir. 1998). First, under the objective component, a prisoner must demonstrate the existence 

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of conditions “so serious as to deprive prisoners of the minimal measure of life’s necessities, as when 

it denies the prisoner some basic human need.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999). 

The alleged conditions must be “extreme.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). While a prisoner 

“need not await a tragic event” before seeking relief, he must at the very least show that a condition 

of his confinement “pose[s] an unreasonable risk of serious damage to his future health.” Helling v. 

McKinney, 509 U.S. 25, 33-35 (1993). Prison conditions are not unconstitutional simply because they 

are restrictive; restrictive conditions “are part of the penalty that criminal offenders pay for their 

offenses against society.” Rhodes, 452 U.S. at 347.

Second, under the subjective component, a prisoner must allege “that the responsible prison 

officials acted with deliberate indifference to his conditions of confinement.” Harper v. Showers, 174 

F.3d 716, 720 (5th Cir. 1999). To satisfy this component, a prisoner must allege facts which would 

permit a finding that the prison official “(1) was ‘aware of facts from which the inference could be 

drawn that a substantial risk of serious harm exists’; (2) subjectively ‘drew the inference’ that the risk 

existed; and (3) disregarded the risk.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (quoting 

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference is “an extremely high standard to 

meet.” Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir. 2001). Actions and decisions by officials that are 

merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference. Hernandez 

ex rel. Hernandez v. Texas Dep’t of Prot. & Reg. Serv., 380 F.3d 872, 883 (5th Cir. 2004). 

As explained below, Plaintiffs’ allegations fail to satisfy either the objective or the subjective 

component of a viable Eighth Amendment conditions-of-confinement claim. 

a. The alleged conditions are not sufficiently extreme.

The use of solitary confinement—even long-term solitary confinement—“is not per se cruel 

and unusual.” Hope v. Harris, 861 F. App’x 571, 582 (5th Cir. 2021); see also Hutto v. Finney, 437 U.S. 

678, 686 (1978) (“It is perfectly obvious that every decision to remove a particular inmate from the 

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general prison population for an indeterminate period could not be characterized as cruel and 

unusual”); Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996) (“We hold that absent extraordinary 

circumstances, administrative segregation as such, being an incident to the ordinary life as a prisoner, 

will never be a ground for a constitutional claim.”); Wilkinson v. Austin, 545 U.S. 209, 229 (2005) 

(acknowledging that “[p]rolonged confinement in [solitary confinement] may be the State’s only 

option for the control of some inmates”). 

Only where the solitary confinement conditions are “base, inhuman, and barbaric” do they 

satisfy the Eighth Amendment’s objective component. Novak v. Beto, 453 F.2d 661, 65 (5th Cir. 1971)

(holding that solitary confinement conditions including “lightless cell[s] . . . limited bedding . . . and 

minimal food” did not rise to the level of an Eighth Amendment violation). A “common thread” in 

actionable claims “is the deprivation of basic elements of hygiene.” Id. See, e.g., Hope, 861 F. App’x at 

584 (indefinite solitary confinement in conditions of “mold, urine, and feces” was sufficiently serious 

to invoke Eighth Amendment concerns); Foulds v. Corley, 833 F.2d 52, 54 (5th Cir. 1987) (allegations 

that inmate’s solitary confinement cell was “extremely cold” and that he “was forced to sleep on the 

floor where rats crawled over him” were sufficient to state Eighth Amendment claim). Cf. Daigre v. 

Maggio, 719 F.2d 1310, 1312 (5th Cir. 1983) (rejecting an Eighth Amendment challenge where the 

record did not establish that the prisoner's “isolation cell is generally unsanitary”); Dillard v. Davis, No. 

19-CV-81, 2022 WL 3045747, at *24 (N.D. Tex. June 17, 2022) (determining that inmate’s prolonged 

solitary confinement could not state a viable Eighth Amendment claim “absent egregious hygienerelated facts”), rec. adopted, 2022 WL 3042901 (N.D. Tex. Aug. 2, 2022).

Plaintiffs allege no such extreme deprivations of basic hygiene. In fact, they raise no concerns

whatsoever about the cleanliness, condition, or contents of their cells.1 Rather, Plaintiffs’ conditions1 Plaintiffs’ only hygiene-related allegation is that they are not provided with daily showers. Compl. at ¶ 44. 

However, the Constitution does not require inmates receive daily showers. See Hamilton v. Lyons, 74 F.3d 99, 

106 n.8 (5th Cir. 1996) (holding that denial of showers for three days did not constitute cruel and unusual 

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of-confinement claim rests entirely on the indefinite nature of their housing in solitary confinement, 

coupled with alleged restrictions on nutrition, recreation, interaction with inmates, and phone calls. 

Compl. at ¶¶ 41-44, 109-114. Given that indefinite solitary confinement does not in and of itself

violate the Eighth Amendment (see Hope, 861 F. App’x at 582), the Court need only consider whether

the alleged restrictions accompanying that confinement violate the Constitution. They do not. 

Nutrition: “The deprivation of food constitutes cruel and unusual punishment only if it denies 

a prisoner the ‘minimal civilized measure of life’s necessities.’” Talib v. Gilley, 138 F.3d 211, 214 n.3 

(5th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “Whether the deprivation of food 

falls below this threshold depends on the amount and duration of the deprivation.” Id. 

Robertson, Curry, and Cummings do not claim to be suffering any nutritional deficit. In fact, 

Cummings claims that he has gained weight since arriving on Polunsky Death Row. Compl. at ¶ 30. 

Ford is the sole outlier, alleging that he is “unable to get sufficient nutrients from the food available,” 

resulting in health problems. Compl. at ¶ 26. However, absent allegations about the volume of food 

he was served or its nutritional content, Ford’s conclusory assertion of insufficient nutrition is 

insufficient to state a claim. See, e.g., Fields v. Davis, No. 818746, 2022 WL 818746, at *7 (E.D. Tex. 

Feb. 24, 2022) (“Plaintiff’s wholly conclusory allegation of inadequate nutrition is not enough to state 

a claim under Section 1983”), rec. adopted, 2022 WL 811053 (E.D. Tex. Mar. 16, 2022).

Out-of-cell recreation: The Fifth Circuit has never held that inmates enjoy an absolute right 

of out-of-cell recreation or exercise. See Green v. Ferrell, 801 F.2d 765, 771-72 (5th Cir. 1986) (setting

aside lower court’s judgment requiring jail to provide either outdoor exercise or an indoor exercise 

facility); Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir. 1982) (“[T]he deprivation of exercise is not per 

se cruel and unusual punishment.”). While a deprivation of exercise opportunities might impinge 

punishment); Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 671 (7th Cir. 2012) (“[L]imiting inmates to weekly showers 

does not violate the Eighth Amendment.”). 

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upon an inmate’s Eighth Amendment rights in certain circumstances, Green, 801 F.2d at 771-72, 

allegations that an inmate was denied out-of-cell exercise for a few consecutive weeks are insufficient 

to state a claim. See Umondak v. Ginsel, 426 F. App’x 267, 269 (5th Cir. 2011) (allegation that inmate 

was denied out-of-cell exercise for 25 days could not support Eighth Amendment claim); Peterson v. 

Peshoff, No. 99-31120, 216 F.3d 1079, 2000 WL 729077, at *2 (5th Cir. May 9, 2000) (Eighth 

Amendment claim based on deprivation of outdoor exercise for 47 days was “frivolous”); Urias v. 

Hudson, No. 5:09-cv-130, 2010 WL 3257967, at *8 (E.D. Tex. July 16, 2010) (denial of out-of-cell 

exercise for four weeks did not violate Eighth Amendment), aff’d, 429 F. App’x 438 (5th Cir. 2011). 

Plaintiffs do not indicate precisely how frequently they receive out-of-cell recreation, but they 

admit that it is as often as every day. Compl. at ¶ 42. And while they allege that inmates on Polunsky 

Death Row “regularly go weeks without adequate recreational time” (id. at ¶ 43), they do not specify 

how many weeks or explain what they mean by “adequate.” Nor do they claim to have suffered 

serious injuries resulting from lack of exercise, aside from Robertson who claims generally that his 

“cardiac health has declined.” Id. at ¶ 17. Absent allegations that Plaintiffs have been denied out-ofcell recreation for several consecutive months, and that they suffered a serious illness or injury as a 

direct result, they cannot establish the “substantial risk of serious harm” required for an Eighth 

Amendment claim. See Farmer, 511 U.S. at 837; see also Hernandez v. Velasquez, 522 F.3d 556, 561 (5th 

Cir. 2008) (even assuming that plaintiff suffered from muscle atrophy, stiffness, loss of range of 

motion, and depression as a result of lack of out-of-cell exercise for 13 months, that was insufficient 

to sustain an Eighth Amendment claim where there was “nonetheless no indication these conditions 

posed a substantial risk of serious harm”).2 

2 Plaintiffs’ allegation that Defendants are violating TDCJ’s own policy by restricting recreation opportunities 

on Polunsky Death Row (Compl. at ¶¶ 43-44) does not alter this conclusion. See Williams v. Banks, 956 F.3d 

808, 812 (5th Cir. 2020) (“[A] prison official’s failure to follow the prison’s own policies, procedures, or 

regulations does not constitute a violation of [the Eighth Amendment], if constitutional minima are nevertheless 

met.”) (quoting Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996)).

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In-cell recreation: In addition to allegedly insufficient out-of-cell recreation, Plaintiffs 

complain that they are “not permitted in-cell arts and crafts projects to engage their minds.” Compl. 

at ¶ 44. However, courts have made it clear that such restrictions do not rise to the level of an Eighth 

Amendment violation. See, e.g., Striz v. Collier, No. 3:18-cv-202, 2020 WL 7868102, at *14 (S.D. Tex. 

Nov. 24, 2020) (allegation that inmate was deprived of “environmental and mental stimulus” in solitary 

confinement did not state a claim), aff’d, 2022 WL 1421834 (5th Cir. May 5, 2022). Depriving Plaintiffs 

of arts and crafts does not inflict “cruel and unusual punishment” upon them. 

Inmate interaction: Neither the Supreme Court nor the Fifth Circuit has ever held that 

depriving inmates of contact with other inmates constitutes cruel and unusual punishment. Plaintiffs 

cite to Porter v. Clarke, in which the Fourth Circuit held that housing inmates in solitary confinement 

with zero interaction with other inmates raised Eighth Amendment concerns. 923 F.3d 348, 353 (4th 

Cir. 2019). However, Porter is factually distinguishable. Whereas the inmates in Porter were held far 

apart from one another with nobody in adjacent cells (id.), Plaintiffs admit that their cells are in such 

“close quarters” that any conversations can be “easily overheard” by others on the row. Compl. at ¶¶ 

13, 31, 46. Taking their allegations as true, Plaintiffs are able to speak with at least the inmates in cells 

next to them, negating their assertion of being “completely isolated” (id. at ¶ 45) and vitiating their 

Eighth Amendment claim to the extent it is premised on lack of inmate interaction. See Striz, 2020 

WL 7868102, at *14 (allegation that inmate “has been deprived of human contact and social 

interaction” for over 19 years—unsupported by facts—did not support Eighth Amendment claim). 

Phone calls: Restrictions on inmate communication with the outside world do not implicate 

the Eighth Amendment unless an inmate is held “completely incommunicado for an extended 

period.” Payne v. Sutterfield, No. 2:17-cv-211, 2020 WL 5237747, at *6 (N.D. Tex. Sep. 2, 2020) (citing 

Hill v. Estelle, 537 F.2d 214, 215 (5th Cir. 1976)), aff’d, 2022 WL 2821953 (5th Cir. July 20, 2022). 

Although the Fifth Circuit has not set a minimum number of phone calls inmates must receive, one 

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call every few months appears to be constitutionally sufficient. Id. (“Plaintiff does not suffer an Eighth 

Amendment injury even if he accurately states he is only permitted one phone call every three 

months.”). Plaintiffs allege that they are “permitted a very limited number of short phone calls,” but 

do not specify the precise frequency or duration of those calls. Compl. at ¶ 42. Because Plaintiffs do 

not plead facts from which the Court could infer unconstitutional limitations on phone calls, they 

cannot rely on such restrictions to support their Eighth Amendment claim. 

* * * * *

While the alleged conditions of confinement may be unpleasant and restrictive, Plaintiffs’ fail 

to describe conditions—taken separately or as a whole—which are objectively so extreme as to deprive 

them of a basic human need. This failure warrants dismissal for failure to state a claim. 

b. Plaintiffs do not allege that Defendants acted with deliberate indifference. 

Plaintiffs also fail to meet the subjective component of their conditions-of-confinement claim. 

To adequately plead deliberate indifference, a plaintiff must allege facts indicating that each defendant

“knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take 

reasonable measures to abate it.” Farmer, 511 U.S. at 847. Conclusory allegations of conscious 

disregard are insufficient, and courts will not hesitate to dismiss deliberate indifference claims 

unsupported by specific facts. See, e.g., Blank v. Eavenson, 530 F. App’x 364, 369 (5th Cir. 2013).

Plaintiffs allege only that Defendants “authorize or condone” the policies of placing all 

Polunsky Death Row inmates in restricted housing. Compl. at ¶¶ 35-37. These conclusory allegations 

are insufficient to establish that Defendants acted with deliberate indifference to their conditions of 

confinement. See, e.g., Green v. Harris Cnty., Tex,, No. H-16-893, 2019 WL 338243, at *7 (S.D. Tex. Jan. 

28, 2019) (allegations that defendant “condoned the policies in place” in state jail and that he was 

“ultimately responsible” for those policies were insufficient to establish deliberate indifference to the 

allegedly unconstitutional effects of those policies).

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2. Plaintiffs’ generalized allegations of limited access to medical care do not rise 

to the level of an Eighth Amendment violation. 

In addition to governing prisoners’ conditions of confinement, the Eighth Amendment 

“forbids deliberate indifference to the serious medical needs of prisoners.” Lawson v. Dallas Cnty., 286 

F.3d 257, 262 (5th Cir. 2002). However, this protection “does not . . . translate into a free-standing 

right to have access to the medical program or to medical care.” Jackson v. Boland, No. 2:12-CV-0212, 

2014 WL 947567, at *13 (N.D. Tex. Mar. 11, 2014). To state a viable claim, “a plaintiff must allege a 

deprivation of medical care sufficiently serious to show that the state has abdicated a constitutionallyrequired responsibility to attend to his medical needs, and that a prison official knew of and 

disregarded an excessive risk to inmate health or safety.” Harris v. Hegmann, 198 F.3d 153, 159 (5th 

Cir. 1999) (internal quotations omitted). Allegations of medical malpractice, unsuccessful treatment 

or neglect will not suffice. Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).

Here, Plaintiffs allege generally that inmates on Polunsky Death Row lack adequate access to 

medical care. Compl. at ¶¶ 45-47. However, as discussed above in the standing context, Plaintiffs do 

not claim to have personally suffered any actual or imminent injuries directly attributable to a delay or 

denial of treatment. See Section V.A.2, supra. This alone warrants dismissal. See Mendoza v. Lynaugh,

989 F.2d 191, 195 (5th Cir. 1993) (a delay in providing medical care creates constitutional liability only 

if it “results in substantial harm”); Grant v. Collins, No. 93-7316, 3 F.3d 439, 1993 WL 347234, at *1 

(5th Cir. 1993) (“Because [plaintiff] failed to establish any resulting substantial harm occasioned by the 

alleged neglect, his claim has no arguable legal basis, and the court did not abuse its discretion when 

it dismissed his action as frivolous.”).

Moreover, Plaintiffs fail to adequately allege that Defendants acted with deliberate indifference

to their serious medical needs. Even assuming that Plaintiffs meant to include inadequate access to 

medical care as one of the “unconstitutional death row policies” which Defendants allegedly 

“authorize or condone” (Compl. at ¶¶ 35-37), that conclusory allegation is insufficient to state a claim

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because Plaintiffs present no facts indicating that Defendants—all high-level TDCJ officials—knew 

about their specific medical needs, much less that Defendants acted with wanton disregard to those 

needs. See Adams v. Duke, 73 F. App’x 766 (5th Cir. 2003) (conclusory allegation that defendant caused

delay in medical treatment did not state a claim).3

3. Plaintiffs fail to state a Fourteenth Amendment due process claim.

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive 

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. To 

state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property 

interest and (2) demonstrate deprivation of that interest without due process of law. Mathews v. 

Eldridge, 424 U.S. 319, 332-33 (1976). Plaintiffs fail to meet either of these requirements. 

a. Plaintiffs have no liberty interest in avoiding their current housing.

The Supreme Court has long recognized that a prisoner may have a liberty interest in avoiding

certain prison confinement conditions. See, e.g., Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Wolff v. 

McDonnell, 418 U.S. 539, 555-57 (1974). But the Court has been equally clear that if no state statute, 

regulation, or policy creates such a liberty interest, a prisoner cannot “invoke the procedural 

protections of the Due Process Clause.” Meachum, 427 U.S. at 224. In an effort to reduce “[p]arsing” 

of state statutes and regulations to find rights by “negative implication,” the Supreme Court added a 

second requirement for establishing a liberty interest warranting due process: the denial of such an 

interest must “impose atypical and significant hardship on the inmate in relation to the ordinary 

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 482-84 (1995). Before reaching the “atypical 

and significant hardship” inquiry, however, courts must first still address the “threshold question” of

3 Plaintiffs attribute the care limitations on Polunsky Death Row to “staffing shortages” (Compl. at ¶¶ 21, 47), 

but that too is insufficient to establish deliberate indifference. See Gagne v. City of Galveston, 671 F. Supp. 1130, 

1135 (S.D. Tex. 1987) (holding that inmate’s “general and conclusory allegations of . . . inadequate staffing” 

did not satisfy subjective element of Eighth Amendment claim), aff’d, 851 F.2d 359 (5th Cir. 1988). 

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whether a liberty interest “arise[s] from state policies or regulations.” Wilkinson, 545 U.S. at 221-22. 

When the Wilkinson Court applied this two-prong analysis, the parties agreed that Ohio prison 

classification regulations gave administrators discretion over where to house the plaintiff inmates. Id. 

at 215–17, 221. The Wilkinson Court thus focused on the second prong: whether the restrictive

conditions at the supermax prison constituted an “atypical and significant hardship” compared to 

other prisons where the plaintiff inmates could have been housed. Id. at 223-24. Similarly, in Wilkerson 

v. Goodwin, because the inmate’s placement in solitary confinement was not preordained by law or 

official policy, the Fifth Circuit delved directly into the comparative nature of the deprivation in 

determining whether a liberty interest existed. 774 F.3d 845, 851-57 (5th Cir. 2014). 

Importantly, Sandin, Wilkinson, and Wilkerson did not establish a new regime in which atypical 

and harsh confinement conditions, in and of themselves, give rise to a protected liberty interest, 

regardless of whether any state law or policy creates the possibility of avoiding such conditions. 

Instead, it is only where inmates have a standalone interest in avoiding erroneous placement under the 

state’s classification regulations, combined with harsh and atypical conditions, that due process is 

required. See Prieto v. Clarke, 780 F.3d 245, 250 (4th Cir. 2015) (“After finding a basis for an interest 

or expectation in state regulations, an inmate must then demonstrate that denial of this state-created 

interest resulted in an ‘atypical and significant hardship’ to him.”) (quoting Sandlin, 515 U.S. at 484).4

Here, Plaintiffs cannot establish a basis for protection under the Due Process Clause. To do 

so, they would need to point to a Texas regulation or policy providing them with an expectation of 

4 In addition to misreading governing law, removing the requirement of a state-created liberty interest would 

collapse Plaintiffs’ due process claim into an Eighth Amendment claim. The Eighth Amendment “appl[ies] 

when the conditions of confinement compose the punishment at issue.” Rhodes, 452 U.S.at 347. Allegations 

that prison conditions “involve the wanton and unnecessary infliction of pain,” or are “without any penological 

purpose” fall squarely within the ambit of the Eighth Amendment—not the Due Process Clause. Id. As the 

Fourth Circuit has observed, “[t]reating Sandin and Wilkinson as holding that confinement conditions alone 

trigger a Due Process claim—without regard to whether a state policy or regulation provides the basis to 

challenge such conditions—would elide that critical distinction.” Prieto, 780 F.3d at 251.

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avoiding their conditions of confinement and demonstrate that those conditions are harsh and atypical 

in relation to the ordinary incidents of prison life. See id. at 252. Plaintiffs do neither.

First, Plaintiffs have no expectation in avoiding confinement in their current conditions. As 

they admit, official TDCJ policy requires that all male capital offenders be housed on Polunsky Death 

Row. Compl. at ¶ 81 (“[A]ll male prisoners sentenced to death are held in solitary confinement at the 

Polunsky Death Row Unit, as a blanket policy.”) (emphasis in original). This state policy forecloses 

any due process expectation or right on the part of Plaintiffs to any other housing assignment, and is

therefore dispositive of their claim. See Prieto, 780 F.3d at 252 (“A court cannot conclude that death 

row inmates have a state-created interest in consideration for non-solitary confinement when the 

State’s established written policy expressly precludes such consideration.”). 

Plaintiffs also fail to allege that their conditions of confinement impose an atypical and 

significant hardship in relation to the ordinary incidents of prison life. While the Supreme Court has 

not identified the proper baseline for this inquiry, it has previously emphasized the importance of the

sentence of conviction in determining the existence of a liberty interest. See Meachum, 427 U.S. at 225 

(rejecting the contention that “burdensome conditions” imposed by transfer to a maximum-security 

facility provided the basis for a due process claim because those conditions fell “within the normal 

limits or range of custody which the conviction has authorized the State to impose.”); Sandin, 515 U.S. 

at 485 (finding significant, in rejecting a prisoner’s due process claim, that the challenged conditions 

fell “within the expected perimeters of the sentence imposed”). As the Court explained in Sandin and 

repeated in Wilkinson, a prisoner does not establish a state-created liberty interest in avoiding 

disciplinary segregated confinement if such confinement “does not present a dramatic departure from 

the basic conditions of [the inmate’s] indeterminate sentence.” Id.; Wilkinson, 545 U.S. at 223.

The Supreme Court in Wilkinson and the Fifth Circuit in Wilkerson both held that the plaintiff 

inmates had established atypical and significant hardship compared with “any plausible” or “any 

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possible” baseline. Wilkinson, 545 U.S. at 210; Wilkerson, 774 F.3d at 855. Those cases are

distinguishable, however, because neither involved a discrete class of inmates who had been sentenced 

to death and for that reason were required by state policy to be confined under particular conditions. 

In Prieto, by contrast, the Fourth Circuit was presented with that precise scenario and held as follows: 

[I]n the unusual instances in which state law mandates the confinement conditions to 

be imposed on offenders convicted of a certain crime and receiving a certain sentence, 

those confinement conditions are, by definition, the “ordinary incidents of prison life” 

for such offenders. Virginia law mandates that all persons convicted of capital crimes 

are, upon receipt of a death sentence, automatically confined to death row. Thus, in 

Virginia the ordinary incidents of prison life for those inmates, including [plaintiff],

include housing on death row. . . . [Plaintiff], like any other inmate, can only be 

deprived of that to which he is entitled. Thus, in determining whether a deprivation 

imposes a significant or atypical hardship on him, the court must use as its benchmark 

the incidents of prison life to which he is entitled. Virginia imposes death row 

confinement on capital offenders because of the crime they have committed and the 

sentence they have received. That confinement is the expected—indeed mandated—

confinement condition flowing from the conviction and sentence. State law defines 

the perimeters of confinement conditions, and here state law is pellucid: tethered to 

the death sentence in Virginia is pre–execution confinement on death row. 

780 F.3d at 254. Because this case presents nearly identical facts to those in Prieto, the Court should 

similarly find that Plaintiffs’ conditions of confinement—“flowing from [their] conviction and 

sentence” (id.)—do not create a liberty interest giving rise to due process protections.5 

b. Even if Plaintiffs had a liberty interest in avoiding their current housing,

Plaintiffs were provided with adequate due process during sentencing. 

The Due Process Clause’s procedural component is “flexible,” and its requirements depend 

on what “the particular situation demands.” Serrano v. Customs & Border Patrol, 975 F.3d 488, 496 (5th 

Cir. 2020) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Here, Plaintiffs are housed on

5 Although the Fifth Circuit has not yet considered the unique question presented in Prieto, there is strong 

evidence that it would adopt the same holding if given the opportunity. The reasoning in Prieto is strikingly 

similar to the Fifth Circuit’s reasoning in sex offender due process cases in which “registration requirements 

‘turn on an offender’s conviction alone—a fact that a convicted offender already had a procedurally safeguarded 

opportunity to contest.” Does 1-7 v. Abbott, 945 F.3d 307, 312 (5th Cir. 2019) (quoting Conn. Dep’t of Pub. Safety 

v. Doe, 438 U.S. 1, 7-8 (2003)). In both cases, the conditions flow directly from the conviction, and, in both 

cases, persons so convicted “are owed no additional process.” Compare id. at 312, with Prieto, 780 F.3d at 254. 

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Polunsky Death Row due to their death sentences, not as the result of any classification hearing or 

review. Compl. at ¶¶ 19, 23, 28, 33. Therefore, the appropriate inquiry is whether the process they 

received during sentencing was sufficient to warrant their current housing assignments.6 

Texas law mandates bifurcated proceedings in capital cases. Tex. Code Crim. Proc. art. 

37.071(2)(a). The “guilt/innocence phase” is the typical trial in which the jury determines whether the 

evidence establishes beyond a reasonable doubt the defendant’s guilt of the capital crime. Id. If the 

defendant is found guilty, the same jury is reconvened for a separate “sentencing phase,” during which 

both sides may present evidence regarding “any matter that the court deems relevant to [the 

defendant’s] sentence, including evidence of the defendant's background or character or the 

circumstances of the offense that mitigates against the imposition of the death penalty.” Id. The jury 

is then presented with “special issues” to determine if the death penalty is warranted. First, the jury 

is asked to determine “whether there is a probability that the defendant would commit criminal acts 

of violence that would constitute a continuing threat to society.” Id. at § (2)(b)(1). The state bears

the burden of proving this “future dangerousness” issue beyond a reasonable doubt. Id. at § (2)(c). 

If the jury unanimously answers “yes,” it must then answer the following “mitigation” issue: 

“[w]hether, taking into consideration all of the evidence . . . there is a sufficient mitigating circumstance 

or circumstances to warrant that a sentence of life imprisonment without parole rather than a death 

sentence be imposed.” Id. at § (2)(e)(1). If the jury unanimously answers “no” to that mitigation 

question, then the defendant is sentenced to death. Id. at § (2)(g).7

The Supreme Court has repeatedly upheld Texas’s capital sentencing scheme—and in 

6 To the extent Robertson and Ford challenge the process they were afforded during their transfer to Polunsky 

Death Row from the Ellis Unit in 1999, any such claims are barred by the two-year statute of limitations 

applicable to actions under Section 1983. See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).

7 While the “future dangerousness” special issue has been part of Texas’s capital sentencing scheme in its 

current form since 1973, the mitigation issue was amended in 2005 to reflect the State’s removal of the 

possibility of parole for capital offenders. See Tex. Penal Code § 12.31(a). 

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particular its “future dangerousness” special question—against due process challenges. See, e.g., Jurek 

v. Texas, 428 U.S. 262, 273 (1976); Franklin v. Lynaugh, 487 U.S. 164, 177–80 (1988); Johnson v. Texas, 

509 U.S. 350, 368–69 (1993). Surely, if the process provided by that scheme is sufficient to support a 

death sentence, it is sufficient to support TDCJ’s decision to place an inmate on Polunsky Death Row. 

Cf. Does 1-7, 945 F.3d at 312 (holding that persons convicted of sex offenses are owed no additional 

process when their obligation to register as sex offenders turns on their conviction alone); Meza v. 

Livingston, 607 F.3d 392, 401 (5th Cir. 2010) (same).

Plaintiffs nevertheless demand additional process, presumably in the form of individualized 

classification reviews. Courts will consider three factors in determining whether sufficient process has 

been afforded: (1) “the private interest that will be affected by the official action”; (2) “the risk of an 

erroneous deprivation of such interest through the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards”; and (3), “the Government’s interest, including the 

function involved and the fiscal and administrative burdens that the additional or substitute procedural 

requirement would entail.” Mathews, 424 U.S. at 335. All three factors weigh in Defendants’ favor. 

First, as discussed above, Plaintiffs have no interest in avoiding their current housing because 

all male capital offenders are automatically housed on Polunsky Death Row, and they do not face an 

“atypical or significant hardship” vis-à-vis other death row inmates. See Section V.D.3.a, supra. 

Moreover, even if Plaintiffs did have such an interest, it must be evaluated “within the context of the 

prison system and its attendant curtailment of liberties.” Wilkinson, 545 U.S. at 225.

Second, there is no risk of erroneous deprivation by denying Plaintiffs of individualized 

classification reviews. The purpose of such reviews would be to assess whether Plaintiffs pose a 

continuing threat of violence in the prison environment—something their sentencing juries have 

already determined to be the case beyond a reasonable doubt. See Tex. Code Crim. Proc. art. 

37.071(2)(c); Speer v. Lumpkin, 860 F. App’x 66, 70 (5th Cir. 2021) (“[T]he question of future 

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dangerousness often focuses on the likelihood the defendant will be violent in prison.”). Plaintiffs 

would not benefit from relitigating that issue now, especially given the comparatively limited 

procedural safeguards required in prison classification decisions.

8

 

Third, requiring TDCJ to conduct individualized classification reviews would be contrary to 

the State’s interest, which is the “dominant consideration” in determining whether additional process 

is required. Id. at 227. For one thing, any classification reviews would necessarily entail reassessing 

the “future dangerousness” finding of Plaintiffs’ criminal juries, something prison officials would be 

loath to do given that findings by a jury are “sacrosanct.” See Manget Bros., Inc. v. Bank of Greenwood, 

Miss., 381 F.2d 91, 96 (5th Cir. 1967). Moreover, reviewing each of Plaintiffs’ entire files would require 

additional time and money from an agency already lacking in resources. See Wilkinson, 545 U.S. at 228 

(“The problem of scarce resources is another component of the State’s interest.”).

* * * * *

In sum, Plaintiffs do not have a state-created liberty interest in avoiding their current housing. 

Plus, even if such a liberty interest existed, their criminal sentencing provided ample process prior to 

the finding of “future dangerousness,” which TDCJ then relied upon in placing Plaintiffs on Polunsky 

Death Row. Finally, TDCJ need not conduct individualized classification reviews because doing so 

would not add any probable value and would be contrary to the State’s interest. Plaintiffs’ due process 

claim must therefore be dismissed.

4. Plaintiffs fail to state a Sixth Amendment claim. 

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy 

the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. “Since the 

8 Whereas Plaintiffs had the right to counsel during sentencing and could present any evidence which might 

weigh against a finding of future dangerousness, see Tex. Code Crim. Proc. art. 371.071(a)(1), Plaintiffs would 

have no right to counsel during classification reviews, and TDCJ could constitutionally place limits on the type 

and quantity of evidence permitted. See Wilkinson, 545 U.S. at 228-29 (holding that “informal, nonadversary 

procedures” were sufficient before placing non-death row inmates in prolonged solitary confinement). 

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right to effective counsel under the Sixth Amendment extends only to criminal matters, it is applicable 

solely to pre-trial detainees or to a convicted prisoner being tried on additional charges or contesting 

the legality of a previous conviction.” Taylor v. Sterrett, 532 F.2d 462, 472 (5th Cir. 1976) (citations 

omitted). And, even then, it “extends to the first appeal of right, and no further.” Pa. v. Finley, 481 

U.S. 551, 555 (1987). See also In re Sepulvado, 707 F.3d 550, 554 (5th Cir. 2013) (“[The Sixth Amendment 

does not apply in habeas proceedings.”) (internal quotation omitted); Sanchez v. U.S. Postal Serv., 785 

F.2d 1236, 1237 (5th Cir. 1986) (“[T]he sixth amendment . . . does not apply to civil proceedings.”).

 Here, Plaintiffs claim that Defendants have impeded their Sixth Amendment right to counsel 

by, inter alia, placing limitations on in-person, telephone, and mail communications with their lawyers. 

Compl. at ¶¶ 48-60. However, Plaintiffs have long since exhausted their direct appeals of the

convictions for which they were sentenced to death. See Robertson v. State, 871 S.W.2d 701 (Tex. Crim. 

App. 1993); Curry v. State, No. AP-77033, 2017 WL 781740 (Tex. Crim. App. Mar. 1, 2017); Ford v. 

State, 919 S.W.2d 107 (Tex. Crim. App. 1996); Cummings v. State, No. AP-76923, 2014 WL 12713256 

(Tex. Crim. App. 2014). Thus, unless they have been charged with or convicted of subsequent 

offenses (which is not alleged), any attorney contact they wish to have could only be related to habeas 

petitions or civil actions as to which they have no Sixth Amendment protections. On this basis alone, 

dismissal of their Sixth Amendment claims is appropriate. See Whitaker, 862 F.3d at 501 (affirming 

dismissal of access-to-counsel claim because inmates had exhausted their direct appeals and Sixth 

Amendment rights no longer applied); Bell v. Avila, No. 4:11-CV-4238, 2013 WL 11730661, at *3 (S.D. 

Tex. June 25, 2013) (dismissing Sixth Amendment claim predicated on access to civil counsel).9

Moreover, even setting that issue aside, Plaintiffs fail to state a Sixth Amendment claim for 

the same reason they lack standing to assert that claim: they do not allege any actual legal prejudice. 

9 To the extent Plaintiffs assert Sixth Amendment claims premised on restrictions on access to counsel before

they had exhausted their direct appeals, any such claims are now time-barred. See n. 6, supra. 

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See Section V.A.2., supra. “It is well-settled that, in order to state a claim of the violation of the Sixth 

Amendment right of access to the courts, an inmate must allege that he has suffered some cognizable 

legal prejudice as a result of the alleged wrongful conduct.” Hennington, 2022 WL 18276844, at *6. See 

also Roberts v. Fuentes, No. 21-40036, 2022 WL 1548667, at *2 (5th Cir. May 16, 2022) (“To show that 

his Sixth Amendment right of access to the courts was violated, [plaintiff] must show an actual 

injury—that his efforts to pursue a nonfrivolous legal claim were hindered.”). Plaintiffs’ failure to 

allege legal prejudice is grounds for dismissal under Rule 12(b)(6). See, e.g., Christensen v. Scott, 95 F.2d 

46, 1996 WL 405492, at *1 (5th Cir. 1996) (affirming dismissal of access-to-counsel claim as 

“frivolous” where inmate “failed to allege the element of legal prejudice”); Truelove, 2021 WL 5933123, 

at *3 (“[Plaintiff] neither demonstrated actual injury nor a constitutional right to in-person visitation 

with counsel, and, therefore, failed to state a claim upon which relief may be granted.”).

10

E. Plaintiffs’ requested injunction is not permitted by Federal Rule 65 or the PLRA.

Federal Rule 65 requires that all injunctions must state their terms “specifically” and “describe 

in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). To comply 

with this rule, “[a]n injunction must simply be framed so that those enjoined will know what conduct 

the court has prohibited.” Texas v. EEOC, 933 F.3d 433, 451 (5th Cir. 2019). “A general injunction 

which in essence orders a defendant to obey the law is not permitted” under this rule. Meyer v. Brown 

& Root Const. Co., 661 F.2d 369, 373 (5th Cir. 1981). 

In addition, under the PLRA, courts “shall not grant or approve any prospective relief unless 

the court finds that such relief is narrowly drawn, extends no further than necessary to correct the 

violation of the Federal right, and is the least intrusive means necessary to correct the violation of the 

10 Plaintiffs explicitly frame their access-to-counsel claim as arising under the Sixth Amendment. However, 

even if the Court were to interpret Plaintiffs’ complaint as asserting an access-to-courts claim under the First 

Amendment, that claim would similarly be precluded by Plaintiffs’ failure to allege actual prejudice. See DeMarco 

v. Davis, 914 F.3d 383, 387-88 (5th Cir. 2019).

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Federal right.” 18 U.S.C. § 3626(a)(1). This provision “limits relief to the particular plaintiffs before 

the court.” Ball v. LeBlanc, 792 F.3d 584, 599 (5th Cir. 2015). “A district court abuses its discretion if 

it issues an injunction that is not narrowly tailored to remedy the specific action which gives rise to 

the order as determined by the substantive law at issue.” Barbee v. Collier, No. 22-70011, 2022 WL 

16860944, at *2 (5th Cir. Nov. 11, 2022) (internal quotation omitted). 

Plaintiffs’ requested injunctive relief—“enjoining Defendants from violating the Sixth, Eighth, 

and Fourteenth Amendments of the U.S. Constitution” (Compl. at p. 44)— falls well outside of Rule 

65 and the PLRA’s parameters. First of all, Plaintiffs do not demonstrate that there has been any

violation of a federal right that could be rectified by an injunction. See Section V.D., supra. Further, 

even assuming arguendo that some federal right was violated, Plaintiffs’ requested injunction is not 

“narrowly drawn” to redress their alleged individualized injuries and does not “describe in reasonable 

detail . . . the act or acts restrained or required.” 18 U.S.C. § 3626(a)(1); Fed. R. Civ. P. 65(d)(1). Rather, 

Plaintiffs seek precisely the type of “obey the law” injunction deemed improper by the Fifth Circuit. 

See Ball, 792 F.3d at 599. Accordingly, Plaintiffs’ claims for injunctive relief cannot be permitted to 

proceed. See, e.g., Roberts v. Lozada, No. 5:21-cv-170, 2021 WL 5969301, at *3 (N.D. Tex. Nov. 23, 

2021) (dismissing inmate’s request for an injunction that was “inherently nebulous” and did “not 

describe the specific relief” because such an injunction would violate both the PLRA and Rule 65), 

rec. adopted, 2021 WL 5967560 (N.D. Tex. Dec. 16, 2021).

F. Plaintiffs’ claims for compensatory damages arising from access to medical care 

and counsel are barred by the PLRA’s physical injury requirement. 

As a part of the PLRA, Congress restricted a prisoner’s ability to recover compensatory 

damages without a showing of physical injury as the result of the alleged violation of his rights: “[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.” 

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42 U.S.C. § 1997e(e). This physical injury requirement “applies to all federal civil actions in which a 

prisoner alleges a constitutional violation.” Hutchins v. McDaniels, 512 F.3d 193, 196 (5th Cir. 2007) 

(emphasis in original) (quoting Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)). 

Here, as discussed above, Plaintiffs fail to allege any injuries—physical or otherwise—resulting 

from inadequate access to medical care or counsel. See Section V.A., supra. However, even if the 

Court were to conclude that Plaintiffs have alleged emotional or mental injuries resulting from that 

allegedly inadequate access, Plaintiffs are precluded from recovering compensatory damages for those 

injuries because they do not allege any accompanying physical injuries. See Hawkins v. Trent Flying Serv., 

45 F. App’x 325, 2002 WL 1899587, at *1 (5th Cir. July 9, 2002) (affirming dismissal of Eighth 

Amendment denial of medical care claim where plaintiffs failed to allege a physical injury); Moore v. 

Tarrant Cnty., Tex., No. 4:21-cv-1206, 2022 WL 1524131, at *2-3 (N.D. Tex. May 12, 2022) (dismissing 

Sixth Amendment claim that did not include any allegations of a physical injury).

G. Plaintiffs’ individual-capacity claims are barred by qualified immunity.11

Qualified immunity affords protection to officials “insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person would have known.” 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity analysis is a two-step inquiry. 

“First, a court must decide whether a plaintiff’s allegation, if true, establishes a violation of a clearly 

established right.” Hernandez ex rel Hernandez v. Tex. Dep’t of Prot. & Reg. Servs., 380 F.3d 872, 879 (5th 

Cir. 2004). “Second, if the plaintiff has alleged a violation, the court must decide whether the conduct 

was objectively reasonable in light of clearly established law at the time of the incident.” Id. To be 

clearly established, a court “must be able to point to controlling authority—or a robust consensus of 

11 Because qualified immunity is an “immunity from suit rather than a mere defense to liability,” Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985), the Fifth Circuit recently held that, “[w]hen defendants assert qualified 

immunity in a motion to dismiss, the district court may not defer ruling on that assertion.” Carswell v. Camp, 54 

F.4th 307, 312 (5th Cir. 2022). “The rule is that ‘a defendant’s entitlement to qualified immunity should be 

determined at the earliest possible stage of the litigation’—full stop.” Id. (internal quotation omitted). 

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persuasive authority—that defines the contours of the right in question with a high degree of 

particularity.” Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013) (internal quotation omitted). 

“In essence, a plaintiff must allege facts sufficient to demonstrate that no reasonable officer could 

have believed his actions were proper.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). 

Plaintiffs have not cleared the first hurdle of this inquiry because they fail to allege any 

constitutional violation. See Section V.D, supra. However, even if the Court disagrees, Defendants

are still entitled to qualified immunity because their actions were (and are) objectively reasonably in 

light of clearly established law.

With respect to Plaintiffs’ conditions-of-confinement claim, Defendants acted (and continue 

to act) reasonably in confining Plaintiffs in restrictive housing until their execution dates. The “clearly 

established law,” both now and at the time Plaintiffs were placed on Polunsky Death Row, is that 

prolonged, even indefinite placement in solitary confinement does not constitute cruel and unusual 

punishment unless it is coupled with squalid conditions which deprive inmates of basic hygiene. See 

Hope, 861 F. App’x at 584; Novak, 453 F.2d at 665. Because Plaintiffs allege no such deprivations of 

hygiene, Defendants are entitled to qualified immunity. See Dillard, 2022 WL 3045747, at *24 (N.D. 

Tex. June 17, 2022) (holding that qualified immunity barred Eighth Amendment claim premised on 

prolonged solitary confinement because there were no hygiene-related deprivations alleged).

With respect to Plaintiffs’ due process claim, Defendants acted (and continue to act) 

reasonably in confining Plaintiffs in restrictive housing based solely on their death sentences without 

individualized assessments. While the Supreme Court and Fifth Circuit have held that inmates 

sometimes have a liberty interest in avoiding prolonged solitary confinement, those rulings are

distinguishable because the plaintiff inmates were not on death row and prison officials had discretion 

to place them elsewhere. Wilkinson, 545 U.S. at 221-24; Wilkerson, 774 F.3d at 851-57. The only 

“clearly established law” governing the unique situation presented here—in which Plaintiffs’ housing 

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assignment “flow[s] from the[ir] conviction and sentence”—is found in Prieto, wherein the Fourth 

Circuit held that no liberty interest was present and thus no additional procedural protections were 

required. 780 F.3d at 254. Defendants are therefore entitled to qualified immunity on that claim. 

With respect to Plaintiffs’ access-to-counsel claim, Defendants acted (and continue to act) 

reasonably in limiting Plaintiffs’ access to attorney phone calls and visits because the Supreme Court 

“has afforded considerable deference to the determinations of prison administrators [to] regulate the 

relations between prisoners and the outside world.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). 

Although a complete ban on attorney communication violates the constitution, regulations on the 

frequency of those communications do not. See, e.g., Bell, 2013 WL 11730661, at *2-3. Defendants 

also acted (and continue to act) reasonably in not taking additional measures to ensure the privacy of 

attorney communication, since “the attorney-client privilege cannot be asserted as a basis for recovery 

under § 1983.” Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981); see also Buffington v. Valdez, No. 3:07-

cv-260, 2007 WL 2719885, at *5 (N.D. Tex. Sept. 28, 2007) (holding that lack of soundproof, 

confidential inmate-attorney booths did not violate the Sixth Amendment). Finally, Defendants acted

(and continue to act) reasonably in permitting Plaintiffs only indirect access to the law library, and by 

requiring that Plaintiffs be handcuffed during expert evaluations. See Lewis, 518 U.S. at 361-62 (holding 

that prison could constitutionally bar physical access to the law library for “inmates presenting special 

disciplinary and security concerns”); Beatty v. Collier, No. 4:22-cv-3658, 2022 WL 16722364, at *8 (S.D. 

Tex. Nov. 4, 2022) (“Requiring handcuffs during a contact visit is, quite simply, a rational security 

concern.”). Defendants are thus entitled to qualified immunity on that claim, too. 

VI. CONCLUSION

For the reasons described above, Defendants respectfully request that all of Plaintiffs’ claims 

against them be dismissed with prejudice for want of subject-matter jurisdiction and for failure to state 

a claim upon which relief may be granted. 

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 38 of 39 PageID #: 46
31

Respectfully submitted, 

KEN PAXTON

Attorney General of Texas

 

BRENT WEBSTER

First Assistant Attorney General

GRANT DORFMAN

Deputy First Assistant Attorney General 

 

SHAWN E. COWLES 

Deputy Attorney General for Civil Litigation

SHANNA E. MOLINARE

Assistant Attorney General

Chief, Law Enforcement Defense Division

/s/ Michael J. Calb 

MICHAEL J. CALB

Assistant Attorney General 

Texas State Bar No. 24126986

Michael.Calb@oag.texas.gov 

Law Enforcement Defense Division

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2080 / Fax (512) 370-9814

ATTORNEYS FOR DEFENDANTS 

CERTIFICATE OF SERVICE

I, MICHAEL J. CALB, Assistant Attorney General of Texas, do hereby certify that a true and 

correct copy of the above and foregoing has been served to all attorneys of record by the Electronic 

Case Filing System of the Eastern District of Texas on March 30, 2023. 

/s/ Michael J. Calb

MICHAEL J. CALB

Assistant Attorney General

Case 9:23-cv-00023-MAC-ZJH Document 13 Filed 03/30/23 Page 39 of 39 PageID #: 47