IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40378

NICOLAS MARQUEZ

Plaintiff - Appellant

v.

TONYA WOODY; MS. UNIDENTIFIED HOLLIDAY, RDA University of

Texas Medical Branch; K. WALLACE, University of Texas Medical Branch

Practice Manager; UNIDENTIFIED LEMASTER, Correctional Officer III;

NELDA WILLIAMS, 

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:09-CV-71

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

In this 42 U.S.C. §1983 action, Nicolas Marquez (“Marquez”), a prisoner

currently confined in the Polunsky Unit in Texas, appeals the district court’s

decision granting summary judgment to several employees of the Texas

Department of Criminal Justice (“TDCJ”) and the University of Texas Medical

Branch (“UTMB”). Marquez alleges that the employees were deliberately

United States Court of Appeals

Fifth Circuit

F I L E D

September 6, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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indifferent to his serious medical need for dentures and/or for a soft diet. 

Marquez contends that the district court erred by: (1) granting summary

judgmentto Registered Dental Assistant Holliday (“Holliday”),Practice Manager

Williams (“Williams”), Correctional Officer K. Wallace (“Wallace”), Unidentified

Lemaster (“Lemaster”), and Dr. Tonya Woody (“Woody”); (2) dismissing his claim

for injunctive relief against Rick Thaler (“Thaler”), Director of the TDCJ, Senior 1

Warden Timothy Simmons (“Simmons”), and Mr. Guy Smith (“Smith”), Region

I Administrator,TDCJ Grievances ; (3) unfairly applying Local Rule CV-3, which

2

limits the page limit for filings by those proceeding pro-se but not those

represented by counsel; and (4) failing to grant Marquez’s motion for the

appointment of counsel. We AFFIRM the grant of summary judgment to

Holliday, Williams, Wallace, and Woody, and we REVERSE as to Lemaster. 

Additionally, we REVERSE the decision to dismiss Marquez’s claim for

prospective relief against Thaler. 

I. FACTS AND PROCEDURAL HISTORY

Marquez, TDCJ prisoner number 01451935, is currently confined in the

Polunsky Unit—a state facility in Texas. It is undisputed that Marquez does not

have any teeth. Marquez requested dentures several times but his request was

denied because his body mass index (“BMI”) was within the normal range of 18.5

to 25. He then requested a soft food diet and obtained a prescription for such a

diet; however, he alleges that those in charge of food services refused to provide

him with soft food. Specifically, he complained that when he approached

Lemaster, a food services officer, about obtaining a soft food diet, Lemaster

Pursuant to Federal Rule of Appellate Procedure 43(c), we substitute Thaler—acting 1

Director of the TDCJ—for Nathaniel Quarterman, the former director of the TDCJ.

 Although Marquez mentions Smith and Simmons in his statement of the issues, he 2

fails to provide any legal or factual arguments related to Smith or Simmons; therefore, he has

waived these issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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crossed out “soft food” on Marquez’s diet card and wrote “veggie” in its place. 

Marquez states that he has experienced severe gastrointestinal problems as a

result of the lack of dentures and/or a soft food diet because he is forced to eat

primarily peanut butter.

Marquez complains that Holliday, a dental technician, interfered with his

ability to see the dentist and misled him as to whether he would be able to

receive dentures. He alleges that Williams, a nurse, ignored his complaints that

those in the food services department would not provide him with a soft food

diet. He also complains that Wallace ignored his grievances concerning the

refusal of those in the food services department to provide him with soft food.

Marquez filed several grievances through the prison’s grievance system. 

He complained that the dentists refused to give him dentures despite the fact

that he had no teeth because he had a “normal” BMI, and that even though he 3

had been prescribed a soft food diet, the food services department—specifically,

Lemaster—failed to provide him with such a diet. His grievances were denied.

Marquez filed suit against the TDCJ and UTMB employees on April 24,

2009. Marquez and the defendants consented to proceed before a magistrate

judge pursuant to 28 U.S.C. § 636(c). The magistrate judge conducted a Spears 4 5

hearing and subsequently dismissed Quarterman and Simmons after 6

No evidence was proffered that a “normal” BMI necessarily means a person is not 3

malnourished.

Woody did not explicitly consent to proceed before a magistrate judge, as an attorney

4

from the Attorney General’s office was the one to sign the consent form on behalf of the

defendants, and she was not represented by the Texas Attorney General’s office. However, the

Supreme Court has held that “consent can be inferred from a party’s conduct during

litigation.” Roell v. Withrow, 538 U.S. 580, 582 (2003). In this case, Woody’s conduct indicates

that she consented to proceed before a magistrate judge.

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 5

 As noted above, on appeal, we have substituted Thaler for Quarterman. 6

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concluding that they had no personal involvement in Marquez’s treatment. 

Woody, Holliday, Williams, Wallace, and Lemaster later filed motions for

summary judgment. Although Marquez timely mailed a response to Holliday,

Williams, Wallace, and Lemaster’s motions for summary judgment to the clerk’s

office, the clerk refused to enter the response onto the docket because it was too

lengthy, citing Local Rule CV-3, which imposes a page limit of 20 pages, 7

including attachments, on pro se litigants.

The magistrate judge granted summary judgment to Woody, Holliday,

Williams, and Wallace, concluding that Marquez failed to show that they were

deliberately indifferent. The judge also held that Holliday, Williams, and

Wallace were entitled to qualified immunity, because their actions were not

objectively unreasonable. Finally, the magistrate judge granted summary

judgment to Lemaster, concluding that Marquez failed to exhaust his

administrative remedies with respect to his claim against Lemaster. Marquez

timely filed a notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. As the

parties consented to proceed before a magistrate judge, we have jurisdiction to

hear this appeal directly from the final judgment issued by the magistrate judge. 

See 28 U.S.C. § 636(c); 28 U.S.C. § 1291.

We review “the grant of summary judgment de novo, applying the same

standard as the district court.” QT Trading, L.P. v. M/V Saga Morus, 641 F.3d

105 (5th Cir. 2011) (internal quotation marks and citation omitted). Summary

judgment should only be granted if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” FED.

R.CIV.P. 56(a). “We construe all facts and inferences in the light most favorable

 E.D. TEX. R. CV-3(b). 7

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to the nonmoving party when reviewing grants of motions for summary

judgment.” Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 124 (5th Cir. 2011)

(quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).

III. DISCUSSION

We pretermit the question of whether denial of dentures can qualify as a

violation of the Eighth Amendment because we conclude that Marquez did not

show that any of the medical providers acted with deliberate indifference to his

medical needs. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.

439, 445 (1988) (“A fundamental and long-standing principle of judicial restraint

requires that courts avoid reaching constitutional questions in advance of the

necessity of deciding them.”); Republican Nat’l Comm. v. FEC (In re Cao), 619

F.3d 410, 436 (5th Cir. 2010) (en banc) (“The usual path of constitutional

adjudication is first to consider the fact-based issue and to reach broader

constitutional questions only if they are inescapably presented.”), cert. denied

sub nom. Cao v. FEC, 131 S. Ct. 1718 (2011).

A. Did the district court err in granting summary judgment to the

medical and dental providers?

1. Holliday

Holliday was a registered dental assistant in the Polunsky Unit. Marquez

alleged that she denied him adequate dental care and refused to provide him

with dentures “even though she could see he is malnourished.” The competent

summary judgment evidence indicates that she performed the duties assigned

by the attending dentist and did not have the authority to provide Marquez with

dentures or to change the policy on dentures. As the evidence fails to show that

Holliday acted unreasonably in not providing Marquez with dentures, much less

with deliberate indifference, we conclude that the magistrate judge did not err

in granting summary judgment to Holliday.

2. Williams and Wallace

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Williams was a nurse in the Polunsky Unit. Marquez’s only allegation

concerning Williams states that she “[a]ided UTMB and TDCJ officials in

denying plaintiff food he could eat.” Williams provided an affidavit of a nursing

manager employed by the UTMB stating that Marquez’s records indicate that

Williams’s only contact with Marquez was to answer sick call requests by “either

scheduling a Nursing call visit, a Provider sick call visit, or by response only. .

. . Ms. Williams R.N. does not have the authority to order a diet or provide

dentures for a patient.”

Marquez alleged that Wallace , a Practice Manager in the UTMB Polunsky

Unit Infirmary, “[d]enied plaintiff dentures although he has no teeth and cannot

properly digest food available in unit chow hall per UTMB/TDCJ policy.” The

summary judgment evidence indicates that as a practice manager, Wallace’s job

was to ensure that processes were available to “facilitate access to health care

for routine, specialty clinic appointments, and to assure that they were

scheduled within the timelines set forth by TDCJ policy.” The evidence shows

that Wallace had no role in providing medical care; instead, her job was to

ensure that patients received appropriate medical care. Wallace advised

Marquez about the criteria for obtaining dentures.

We conclude that the magistrate judge did not err in granting Williams

and Wallace’s motion for summary judgment, as the evidence shows that

Williams and Wallace took the actions that they were empowered to take with

respect to Marquez’s complaints. The record indicates that Williams and

Wallace referred Marquez to a nurse or a doctor or otherwise responded to

Marquez’s requests. Marquez’s conclusory statements in his verified complaint

are insufficient to overcome Williams and Wallace’s motion for summary

judgment. See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 440 (5th

Cir. 2005) (upholding a decision granting summary judgment to a defendant

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when the only evidence presented by the plaintiff consisted of conclusory

allegations).

3. Woody

The magistrate judge granted Woody’s motion for summary judgment

because it determined that Marquez failed to raise a genuine issue of material

fact as to whether Woody treated Marquez and failed to raise a genuine issue of

material fact as to whether Woody was deliberately indifferent to his serious

medical needs. Although we find that Marquez did raise a genuine issue of

material fact as to whether Woody treated him, the competent summary 8

judgment evidence shows that even if she did treat Marquez, Woody was not

deliberately indifferent to Marquez’s dental needs. The evidence fails to indicate

that Woody ignored Marquez’s requests for treatment, and Marquez does not

address any actions that Woody might have taken differently that could have

changed his outcome. The evidence shows that Woody did not have the

authority to physically give Marquez dentures or to change the policy on

dentures. We do not construe the law as requiring a dentist to pay for a

prisoner’s dentures out of her own pocket. The evidence does not show that

Woody acted with deliberate indifference; therefore, we conclude that the

magistrate judge did not err in granting her motion for summary judgment.

B. Did the district court err in granting summary judgment to Lemaster?

Marquez contends that the district court erroneously concluded that

Marquez failed to exhaust his administrative remedies with respect to his claims

against Lemaster and erroneously concluded that there was no evidence in the

record to show that Marquez had contact with Lemaster. We agree.

Although Woody’s affidavit indicates that she never met or treated Marquez, 8

Marquez’s affidavit indicates that she did, in fact, see him. Despite this fact issue, we

nonetheless conclude thatthe magistrate judge properly granted summary judgment toWoody

because he failed to provide competent summary judgment evidence that Woody was

deliberately indifferent to his need for dentures.

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Before filing suit, a prisoner must exhaust the available administrative

remedies. See 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 212 (2006). The

record indicates that Marquez specifically named Lemaster in a step one

grievance. Indeed, Lemaster concedes this point on appeal. Therefore, we

conclude that the district court erred in dismissing Marquez’s claim against

Lemaster for failure to exhaust his administrative remedies.

Additionally, the record shows that the magistrate judge erred in

concluding that there was no evidence in the record that Lemaster was

deliberately indifferent to Marquez’s serious medical need for a soft food diet. 

In his grievance, which was attached to his verified complaint and which was

also sworn, Marquez specifically stated that Lemaster ignored Marquez’s

prescription for a soft food diet by taking Marquez’s diet pass, crossing out the

portion describing the soft food requirement, and writing “veggie” on it. 

Marquez alleged that Lemaster ignored him when he explained that he could not

eat a veggie tray because he had no teeth. In his verified complaint, Marquez

also stated that Lemaster “actually has thrown the plaintiff out of the chow hall

refusing to provide him with any sustanance [sic] whatever.” Thus, Marquez has

shown that there is a fact issue as to whether Lemaster was aware that Marquez

had a prescription for a soft food diet and deliberately denied him the prescribed

diet.9

Additionally, Lemaster is not entitled to qualified immunity at this stage

in the proceedings. “Government officials performing discretionary functions are

entitled to qualified immunity from civil liability to the extent that their conduct

does not violate clearly established statutory or constitutional rights of which a

Lemaster contends, and Marquez admits, that to the extent Marquez’s claim for 9

damages is against Lemaster in her official capacity, it is barred. See United States ex rel.

Barron v. Deloitte & Touche, L.L.P., 381 F.3d 438, 443 (5th Cir. 2004) (“An individual state

officer sued in her official capacity for damages is entitled to Eleventh Amendment immunity

. . . because the state that employs her is the real party in interest.”).

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reasonable person would have known.” Longoria v. Texas, 473 F.3d 586, 592

(5th Cir. 2006). It is clearly established that “state prisoners are entitled to

reasonably adequate food.” Cooper v. Sheriff, Lubbock County, 929 F.2d 1078,

1084 (5th Cir. 1991). The Eighth Amendment is violated if the denial of food

constitutes a denial of “the ‘minimal civilized measure of life’s necessities.”Talib

v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998). Indeed, we have held that

“[b]ecause depriving a prisoner of adequate food is a form of corporal

punishment, the [E]ighth [A]mendment imposes limits on prison officials’ power

to so deprive a prisoner.” Cooper, 929 F.2d at 1083. 

Accepting Marquez’s competent summary judgment evidence as true, as

we must at this stage, Lemaster’s actions clearly violated the Eighth

Amendment because she refused to provide Marquez with a soft food despite the

fact that a doctor prescribed him such a diet. It would be difficult to argue that

Marquez did not need to eat soft food when it is apparent that Marquez has no

teeth and when Marquez presented a prescription for a soft food diet to Lemaster

which indicated that such a diet was medically necessary. We therefore reject

Lemaster’s qualified immunity defense at this stage based on the competent

summary judgment evidence before this court, recognizing that the facts actually

proven may be different from those sworn to by Marquez.

C. Did the district court erroneously dismiss Marquez’s claims against

Thaler?

Marquez contends that the district court erred in dismissing his claim for

prospective relief against Thaler. The district court dismissed Marquez’s

complaint against Thaler because the doctrine of respondeat superior does not

apply to suits under 42 U.S.C. § 1983, and Thaler was not personally involved

in the alleged violation of Marquez’s constitutional rights. We review dismissal

of a complaint under 28 U.S.C. § 1915A de novo. Geiger v. Jowers, 404 F.3d 371,

373 (5th Cir. 2005) (per curiam).

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A plaintiff may not sue a state officer in her official capacity for damages

because the official is entitled to Eleventh Amendment immunity. United States

ex rel. Barron, 381 F.3d at 443. “[H]owever, the Eleventh Amendment permits

suits for prospective injunctive relief against state officials acting in violation of

federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). An official

cannot be held liable under § 1983 based solely on the theory of respondeat

superior. See City of Canton v. Harris, 489 U.S. 378, 385 (1989). “The individual

officials may be liable only for implementing a policy that is ‘itself [] a

repudiation of constitutional rights’ and ‘the moving force of the constitutional

violation.’” Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (quoting Grandstaff

v. City of Borger, 767 F.2d 161, 169, 170 (5th Cir. 1985)).

Here, Marquez’s complaint specifically alleges that Thaler was

“[r]esponsible for implimentation [sic] of TDCJ policy denying plaintiff dentures

and a soft diet in lieu of dentures.” The magistrate judge erroneously concluded

that Marquez was suing Thaler solely because of his supervisory role, ignoring

the fact that Thaler may be held liable if he implemented a policy that itself

causes a constitutional violation. See Oliver, 276 F.3d at 742. Additionally,

Thaler would not be entitled to qualified immunity for Marquez’s claim for

prospective injunctive relief under § 1983, as qualified immunity does not extend

to suits for prospective relief. See Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995)

(per curiam). The magistrate judge thus erroneously dismissed Thaler’s

complaint without consideringwhetherThaler implemented or had the authority

to modify or contravene the policy on dentures and whether such policy in fact

resulted in a violation of Marquez’s Eighth Amendment rights. For this reason,

we reverse the dismissal of Marquez’s claim for injunctive relief against Thaler

and remand for consideration of these issues in the first instance.10

Although Marquez originally sought injunctive and monetary relief from Thaler, his 10

brief requests only that this court “restore Defendant [Thaler] for th[e] limited purpose” of

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D. Is Local Rule CV-3 unconstitutional?

Although Marquez raises the constitutionality of Local Rule CV-3 as an

issue before this court, he failed to raise it below, and his brief contains no 11

further factual or legal discussion of his contention that Local Rule CV-3 is

unfair or unconstitutional. As such, he has waived this issue. See Condrey v.

SunTrust Bank of Ga., 429 F.3d 556, 571 (5th Cir. 2005) (arguments not

presented to the district court are waived); Douglas W. ex rel. Jason D.W. v.

Houston Indep. Sch. Dist., 158 F.3d 205, 210–11 n.4 (5th Cir. 1998) (per curiam)

(“[F]ailure to provide any legal or factual analysis of an issue on appeal waives

that issue.”).

providing injunctive relief. Marquez therefore abandoned his claim for damages against

Thaler.

Marquez also requests that this court allow him to amend his complaint to add Dr.

Billy Horton, DDS, Director of the UTMB – Correctional Managed Care, as a defendant.

Marquez did not seek to amend his complaint to add Horton in the district court; therefore,

we do not consider the issue at this time. On remand, the district court may address whether

Marquez should be permitted to amend his complaint. See Chancery Clerk of Chikasaw

County, Miss. v. Wallace, 646 F.2d 151, 160 (5th Cir. 1981) (noting that plaintiffs had the

opportunity on remand to correct an error by substituting as defendants those with the

responsibility for challenged action).

Local Rule CV-3 is an admittedly unusual rule that treats pro se litigants differently

11

from those represented by counsel for purposes of determining how many pages of evidence

each may submit. See E.D. TEX. R. CV-3(b). The record also indicates that Federal Rule of

Civil Procedure 5(d)(4) was not followed in this case, as the clerk refused to accept Marquez’s

response. See FED. R. CIV. P. 5(d)(4) (“The clerk must not refuse to file a paper solely because

it is not in the form prescribed by these rules or by a local rule or practice.”). Nonetheless,

Marquez has not shown that this failure harmed him, as he did not bring forward on appeal

the evidence that he would have included in his response but was prevented from filing. 

Indeed, the magistrate judge had before her a great deal of evidence in the form of the medical

records and grievances filed in the record by the defendants (as to whom there was no page

restriction) as well as Marquez’s sworn pleadings, all of which the magistrate judge

considered. Finally, he did respond to Dr. Woody’s motion for summary judgment, and that

response was filed and not stricken such that the evidence presented there was also before the

court.

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E. Did the district court err in denying Marquez’s motion for

appointment of counsel?

Marquez contends that the magistrate judge erroneously denied his

motion for appointment of counsel. By statute, the court has discretion to

appoint counsel in a civil case, see 28 U.S.C. § 1915(e)(1); however, “there is no

automatic right to appointment of counsel in a civil rights case . . . .” Romero v.

Becken, 256 F.3d 349, 353-54 (5th Cir. 2001). A court has no obligation to

appoint counsel for an individual raising a claim under 42 U.S.C. § 1983 “unless

the case presents exceptional circumstances.” Ulmer v. Chancellor, 691 F.2d

209, 212 (5th Cir. 1982). In deciding whether to appoint counsel, the court

should consider “the type and complexity of the case, the litigant’s ability to

investigate and present the case, and the level of skill required to present the

evidence.” Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). “The district

court should also consider whether the appointment of counsel would be a

service to [the plaintiff] and, perhaps, the court and defendant as well, by

sharpening the issues in the case, shaping the examination of witnesses, and

thus shortening the trial and assisting in a just determination.” Ulmer, 691 F.2d

at 213.

We find no error in the decision not to appoint counsel with respect to the

claims against the defendants other than Lemaster and Thaler. The magistrate

judge viewed Marquez’s claims as being “not unduly complicated” and denied

counsel on that basis. In light of our decision that Marquez has raised a fact

issue as to Lemaster’s deliberate indifference and that the magistrate judge

prematurely dismissed Marquez’s claimagainstThaler for prospective injunctive

relief, we leave it to the magistrate judge to consider on remand whether

appointment of counsel would now be appropriate.

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IV. CONCLUSION

In conclusion, we AFFIRM the magistrate judge’s decision granting

summary judgment to Holliday, Williams, Wallace, and Woody, REVERSE the

grant of summary judgment to Lemaster in her individual capacity, and

REVERSE dismissal of Marquez’s claim for prospective relief against Thaler.

We leave the question of counsel on the surviving claims on remand to the

district court’s discretion in the first instance. 

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