### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 20666

PRISON JUSTICE LEAGUE,

Plaintiff

- Appellant

v. TRACY BAILEY, Warden, in their official capacity; BRYAN COLLIER, Executive Director, in their official capacity; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

Defendants

- Appellees

Appeal s from the United States District Court f

or the Southern District of Texas USDC No. 4:14

- CV

- 2985

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges

. PER CURIAM: * Appellant Prison Ju stice League (“ PJL”) appeals its dismissal from the present suit for lack of associational standing. Because PJL does not satisfy the third associational

- standing prong, w e AFFIRM the district court’s judgment.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumst ances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FI LED September 12, 2017 Lyle W. Cayce Clerk Case: 16-20666 Document: 00514152070 Page: 1 Date Filed: 09/12/2017No. 16

- 20666

2 I. PJL is a “membership

- based, non

- profit organization” whose mission is to “improve conditions of incarceration through ‘litigation, advocacy, and empowering [its] members. ’ ” It claims to represent “over 700 inmates, over 100 of whom are located in [the Tex as Department of Criminal Justice’s] Estelle Unit.” This so
- called “medical unit” houses a large population of elderly and disabled inmates. In October 2014, PJL, along with inmate John Doe (“Doe”), sued the Texas Department of Criminal Justice, Warden Tracy Bailey, and other Department administrators (collectively “TDCJ”) for declaratory and injunctive relief, alleging violations of the First, Eighth, and Fourteenth Amendments, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq. , and the Rehabilitation Act, 29 U.S.C. § 794. On September 30, 2015, the district c ourt found that PJL did not satisfy the third prong of associational standing and dismissed it f rom the suit under Fed. R. Civ. P. 12(b)(1)

. From that judgment, PJL timely appea ls. II. We review PJL’s dismissal under Rule 12(b)(1) for lack of associational standing de novo

. Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd. , 627 F.3d 547, 550 (5th Cir. 2010). “ [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participat ion of individual members in the lawsuit.” Hunt v. Wash. St. Apple Adver t . Comm’n, 432 U.S. 333, 343 (1977)

. T he parties do not contest that PJL satisfies the first two associational

standing prongs. PJL contends, however, that the district court erred wh en it determined that the third prong was not met

. To satisfy the third prong, a Case: 16-20666 Document: 00514152070 Page: 2 Date Filed: 09/12/2017No. 16

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3 party must show that “the nature of the case does not require the participation of the individual affected members as plaintiffs to resolve the claims o r prayers for relief at issue.” Friends for Am. Free Enter. Ass’n v. Walmart Stores , 284 F.3d 575, 577

– 78 (5th Cir. 2002)

. In particular , a party satisfies the third prong if its “ claims can be proven by evidence from representative injured members, without a fact

- intensive

- individual inquiry

. ” Ass’n of Am. Physicians , 627 F.3d
at 55 2

. In its complaint, PJL alleges that Estelle Unit officers used excessive force against inmates and retaliated against them for filing grievances

. The complaint states specifica lly that “[o]fficers walking the halls of the Estelle Unit routinely exercise unbridled discretion to use physical force on inmates that is unnecessary to maintain discipline on the unit

— striking them, twisting arms, slamming them into walls, or throwing t hem to the ground.” It also states that officers “us [ed] force, destroy[ed] pro perty, and institut[ed] spurious disciplinary cases” when inmates filed too many grievances

. Finally, it states that Warden Bailey was aware of the excessive force and retaliat i on but did nothing to stop it. “[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good

- faith effort to mai ntain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian , 503 U.S. 1, 6

– 7 (1992). “ T o state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident . . . would not have occurred.” Woods v. Smith , 60 F.3d 1161, 1166 (5 th Cir. 1995). Consequently, to satisfy the third associational

- standing prong, PJL would need to prove that Estelle Unit guards had a uniform retaliatory Case: 16-20666 Document: 00514152070 Page: 3 Date Filed: 09/12/2017No. 16

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4 motive, or acted uniformly or in a coordinated fashion to maliciously and sadistically cause h arm. Ass’n of Am. Physicians , 627 F.3d at 550 , 552

– 53

. We find, however, that PJL’s complaint alleges no facts s uggesting uniformly malicious or sadistic force or uniform retaliatory motive. Even though PJL asserts that officers applied “excessive force,” retaliated against inmates, and “routinely exercise [d] unbridled discretion,” these allegations do not rise above “ ‘ formulaic recitation[s] ’ of the elements of a cause of action,” and thus “ ‘ will not do. ’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoti ng Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007))

. In so holding, we recognize that in the prison context, “[e]xcessive force claims are necessarily fact

- intensive; whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and c ircumstances of each particular case.’” Deville v. Marcantel , 567 F.3d 156, 167 (5 th Cir. 2009) (quoting Graham v. Connor , 490 U.S. 386, 396 (1989))

. We also recognize that prison retaliation claims are necessarily fact

- intensive

. See Woods , 60 F.3d at 1166. W hile acknowledging that satisfying the third associational standing prong is difficult given the fact

- intensive nature of such claims , we do not mean to imply that these difficulties are insurmountable

. For example, where the complaint sufficiently alleges that officers are uniform in their intent or coordinated in their methods , an association may be able to prove its excessive force or retaliation claim without “ fact

- intensive

- individual inquiry. ” See Ass’n of Am. Physicians , 627 F.3d at 55 2

. Furthermore, where an association plausibly alleges that inmates fear retaliation from officers if they were to be named in a complaint, that association’s standing claim is necessarily bolstered. However, PJL does not plead such facts

. Consequently, the district court did not err by dismissing it from the present suit. AFFIRMED. Case: 16-20666 Document: 00514152070 Page: 4 Date Filed: 09/12/2017