United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS AND DISMISSING PLAINTIFF'S CIVIL RIGHTS
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
the Court is “Defendants Givens, Stengel, Robinson,
Collier, Martinez,  Gaitan, and Jenkins' Motion to Dismiss
Pursuant to Rule 12(b)(1) & 12(b)(6).” Def.'s
Mot. to Dismiss, ECF No. 22. Briefing on this motion is
complete in the wake of Plaintiff Joshua Barnes's
“Response to Defendants First Motion to Dismiss.”
Pl.'s Resp, ECF No. 24. After reviewing the pleadings and
for the reasons discussed below, the Court will grant
Defendants' Motion and dismiss Plaintiff Joshua
Barnes's “§ 1983 Complaint.” Pl.'s
Compl., ECF No. 1.
BACKGROUND AND PROCEDURAL HISTORY
Texas prisoner number 01546645, is currently incarcerated at
the Telford Unit of the Texas Department of Criminal Justice
(TDCJ) in New Boston, Texas. Pl.'s Notice of Address
Change, ECF No. 25;
(search for TDCJ No. 01546645, last visited Oct. 21, 2019).
He is serving sentences imposed by state courts after his
convictions for aggravated assault, burglary of a habitation,
tampering with evidence, and escape. His maximum sentence
date is January 25, 2052.
objects to his prison classification and placement in a
Complaint filed pursuant to 42 U.S.C. § 1983 on October
19, 2017. Pl.'s Compl., ECF No. 1. His supporting
documentation establishes he received a Security Precaution
Designator (SPD) Code due to his three prior convictions for
escape. Pl.'s Compl., Ex. 1 (Offender Grievance Form), p.
2, ECF No. 1-1. He alleges-apparently as a consequence of the
SPD Code-Defendants placed him in administrative segregation
with “cell rotation” during his confinement at
the Connally Unit in Kenedy, Texas. Pl.'s Compl. 1. His
supporting documentation suggests he will be “eligible
for SPD Review on 10/4/18 which is ten (10) years from the
date of placement of SPD Code.” Pl.'s Compl., Ex.
1, p. 2.
alleges he remained in administrative segregation
continuously from October 4, 2008, until he filed his
Complaint on October 19, 2017. Pl.'s Compl. 3; Ex. 1, p.
2. He claims the cell rotation required him to change cells
every three-to-seven days. Pl.'s Compl. 3. He
maintains this placement (1) threatened his mental and
physical health because he was housed in “filthy cells
smeared with feces and other body fluids”, (2) put him
at greater risk from other inmates who suspected he was an
informant, and (3) interfered with his ability to receive his
mail. Id. at 1, 4, 6, 10. He asserts “the
Defendants have never even once provided Plaintiff . . . a
hearing or any other process to review his continued
placement on ‘cell rotation status.'”
Id. at 9. He argues these “conditions [were]
so harsh and unlawful that they . . . violate the First and
Eighth Amendments. Id.
sues the Connally Unit Warden and other TDCJ personnel in
their official capacities seeking declaratory and injunctive
relief. Id. at 3. Specifically, he asks the Court to
“[i]ssue a declaratory judgment stating that the acts
and omissions of the Defendants have violated [his] rights
under the First, Eighth, and Fourteenth Amendments.”
Id. at 20. He further asks the Court to order
Defendants to “[f]ormulate and provide inmates access
to an official policy with regard to ‘cell rotation
status.'” Id. He finally asks the Court to
order Defendants to “[i]mmediately provide [him] with a
fair and meaningful review hearing for removal from
‘cell rotation status' and if the decision is to
maintain [him] on this status, provide specific written
reasons for the decision.” Id. at 21.
Court dismissed Barnes's Complaint for failure to state a
non-frivolous claim. Dismissal Order, ECF No. 5. The Court
reasoned a prison classification decision is “not
subject to due process challenge unless it ‘imposes
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.'”
Id. at 3 (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). The Court concluded “[t]he
record fail[ed] to show the requisite ‘extraordinary
circumstances' that would warrant a constitutional
Fifth Circuit Court of Appeals vacated the Court's
judgment and remanded the case for further proceedings.
Barnes v. Givens, 746 Fed.Appx. 401, 402-03 (5th
Cir. 2018). It explained the Court “did not analyze
‘the severity of the restrictive conditions and their
duration.'” Id. at 402 (citing
Wilkerson v. Goodwin, 774 F.3d 845, 854-55 (5th Cir.
2014) (indicating that “the severity of the restrictive
conditions and their duration [are] key factors” in
deciding whether a prisoner has a liberty interest in his
custodial classification)). Hence, “[f]urther
development of Barnes's claim is warranted, especially in
light of his allegation that he has been in administrative
segregation on cell rotation for a least 10 years.”
Id. at 402 (citing Bailey v. Fisher, 647
Fed.Appx. 472, 476-77 (5th Cir. 2016) (“The duration of
. . . confinement is a necessary component in the
Sandin analysis.”). “In addition, . . .
the district court failed to address his First Amendment
claim involving the interference with his mail and his Eighth
Amendment claim involving the conditions of his cells.”
Further development of Barnes's First Amendment claim is
needed based on his allegation that his incoming mail is
frequently given to other inmates or ‘delayed weeks or
sometimes months.' Likewise, development of Barnes's
Eighth Amendment claim is warranted in light of his
allegation that he was forced to live in cells that were
covered with feces, urine, blood, rotten food, and chemical
agents and that some of his cells also had broken light
fixtures, clogged toilets, and no running water.
Court ordered Barnes to submit a more definite statement of
his claims-which he provided. See Pl's Answer,
ECF No. 19. The Court then ordered service on Defendants.
Order, ECF No. 20.
Givens, Stengel, Robinson, Collier, Martinez, Gaitan, and
Jenkins responded with a Motion to Dismiss Pursuant to Rule
12(b)(1) & 12(b)(6). Mot. to Dismiss, ECF No. 22. Givens,
Stengel, Robinson, Martinez, Gaitan, and Jenkins asserted
they “lack[ed] the authority to create policies for
TDCJ.” Id. at 3 (citing Volk v.
Gonzales, Nos. 97-51032, 98-50199, 98-50386, 2000 WL
122381, at *1 (5th Cir. 2000) (“Neither defendant
[warden or correctional officer] in this action had the power
to effect the court's directives to expunge disciplinary
cases, restore custodial classification, and restore lost
good-time credits, and the district court therefore lacked
power to order such relief.”). All Defendants-including
TDCJ Executive Director Bryan Collier-maintained they
“lack[ed] the authority to change custodial
classification.” Id. Consequently, they
Essentially, these are not the defendants who can effectuate
Barnes requested relief. . . . Thus, Barnes fails to
establish the redressability element necessary to establish a
case or controversy. The Court should dismiss these claims
for lack of Article III standing.
Id. (citing Okpalobi v. Foster, 244 F.3d
405, 425 (5th Cir. 2001) (“it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.”).
also asserted Barnes's claims against them in their
official capacities were barred by the Eleventh Amendment.
Id. at 4; see U.S. CONST. amend. XI
(“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
noted “Barnes filed this suit October 19, 2017. Barnes
complain[ed] that the unconstitutional actions began in
January 2013. However, the statute of limitations bars any
claims more than two years prior to the filing of his suit.
Thus, any claims prior to October 19, 2015” were time
barred. Id. at 8-9.
also noted “Barnes fail[ed] to specifically allege how
Defendants were personally involved in . . . violating his
constitutional rights.” Id. at 9. They argued
“ ‘[p]ersonal involvement is an essential element
of a civil rights cause of action.' ” Id.
(quoting Thompson v. Steele, 709 F.2d 381, 382 (5th