# Witherspoon v. Waybourn

> District Court, N.D. Texas · June 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10450242

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** June 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10450242

## How later opinions describe it (automated extraction)

- affirming district court’s grant of summary judgment in favor of defendants, where prisoner only sought compensatory damages and did not allege any physical injury regarding his claim that defendants violated his First Amendment right to freely exercise his religion

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

EDWIN HORTON WITHERSPOON, JR., '
Tarrant No. 0458911 '
'
Plaintiff, '
'
v. ' Civil Action No. 4:20-cv-1150-P
'
BILL WAYBOURN, TARRANT '
COUNTY SHERRIFF, et al., '
'
Defendants. '

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Chaplain Wesley McDuffie’s Rule 12(b)(1) Motion
with Supporting Brief (ECF No. 14) and Appendix in Support (ECF No. 15); Defendant
Chaplain Wesley McDuffie’s Rule 12(b)(6) Motion with Supporting Brief (ECF No. 16);
Plaintiff’s Responses thereto and Appendix in Support (ECF Nos. 21-23); Defendant’s
Reply to Plaintiff’s Response to Defendant’s Rule 12(b)(1) Motion to Dismiss and
Objections to Plaintiff’s Evidence (ECF No. 25); and Defendant’s Reply to Plaintiff’s
Response to Defendant’s Rule 12(b)(6) Motion to Dismiss (ECF No. 26). Having
considered the pleadings, legal briefing, appendices, record, and applicable law, and for
the reasons that follow, the Court GRANTS Defendant Chaplain Wesley McDuffie’s Rule
12(b)(1) Motion (ECF No. 14) and GRANTS Defendant Chaplain Wesley McDuffie’s
Rule 12(b)(6) Motion (ECF No. 16).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 19, 2020, pro se Plaintiff Edwin Horton Witherspoon, Jr.
(“Witherspoon”), a pretrial detainee at the Tarrant County Jail in Fort Worth, Texas, filed
this civil rights complaint pursuant to 42 U.S.C. § 1983. Pl.’s Compl., ECF No. 1.
Witherspoon has been permitted to proceed in forma pauperis. Because Witherspoon is
proceeding pro se in this matter, the Court liberally construes his pleadings. Andrade v.
Gonzales, 459 F.3d 538, 543 (5th Cir. 2006); see also Haines v. Kerner, 404 U.S. 519

(1972).1
Witherspoon alleges he follows the Messianic Jewish faith and that his faith requires
him to eat kosher foods. He asserts multiple Defendants, by refusing to provide him with
kosher meals, have violated the Religious Land Use and Institutionalized Persons Act
(RLUPA), 42 U.S.C. § 2000cc-1 et seq. and the First Amendment’s Free Exercise Clause.

Witherspoon names as Defendants Tarrant County Sheriff Bill Waybourn (“Waybourn”),

1The court is mindful of the extent to which it must go in construing the pleadings of a non-
lawyer but must also remember the limits of liberal construction. Witherspoon’s pro se status does
not exempt him from the requirement that he comply with relevant rules of procedural and
substantive law, including Rule 8’s pleading requirements. See Hulsey v. Tex., 929 F.2d 168, 171
(5th Cir. 1991); Boswell v. Honorable Governor of Texas, 138 F. Supp. 2d 782, 785 (N.D. Tex.
2000) (Mahon, J.) (“While a complaint need not outline all the elements of a claim, the complaint
must be comprehensible and specific enough to draw the inference that the elements exist.”). The
court does not excuse the failure to make any argument; nor does the requirement for liberally
construing a petition give the court license to raise issues that the pro se litigant has omitted. See,
e.g., Johnson v. Quarterman, 479 F.3d 358 (5th Cir. 2007) (Pro se briefs are entitled to liberal
construction, but even pro se litigants must brief arguments in order to preserve them.); Smith v.
CVS Caremark Corp., 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013) (But
“liberal construction does not require that the Court . . . create causes of action where there are
none[.]”) (Boyle, J.).
2
Chaplain Wesley McDuffie (“Chaplain McDuffie”), Deputy Sargent Tom Wall (“Wall”),

Deputy Lieutenant Eddie Harriage (“Harriage”), and Deputy Captain Emily Pedigo
(“Pedigo”).
Specifically, Witherspoon asserts that on August 12, 2020, and again on August 18,
2020, he requested that Defendant Chaplain McDuffie provide him with “a religious meal
of kosher,” and that on August 28, 2020, Chaplain McDuffie’s “response was to define
[his] religious belief by McDuffie’s own belief.” Compl. 4-5, ECF No. 1 and Ex. A

(Summary of Requests). He alleges that on August 18, 2020, he once again requested
kosher meals but Chaplain McDuffie’s response was that Witherspoon had filed a duplicate
request. Id. at 5. He alleges he then filed a grievance alleging that Chaplain McDuffie
violated the RLUPA and the Religious Freedom Restoration Act (“RFRA”). Id. and Ex. B
(Tarrant County Jail Inmate Grievance Form).

Witherspoon alleges that in response to his grievance, he received notification that,
per “[t]he Chaplain’s Office: Kosher meals are reserved for those of Jewish heritage, can
provide specific conversion information, or can provide information of the Rabbi they were
working with prior to their incarceration.” Id. at 5-6 and Ex. B (Tarrant County Sheriff’s
Office Grievance Response Form). He next alleges on September 1, 2020, and on

September 12, 2020, he filed further grievances complaining of the continued denial of his
rights to exercise his religion because of Chaplain McDuffie’s ongoing failure to provide
him with kosher meals. Id. at 6-7. Witherspoon then contends he appealed the adverse

3
decisions on his prior grievances and that on September 17, 2020, the appeal board denied

his appeal. Id. at 7 and Ex. C (Tarrant County Sheriff’s Office Response to Level I
Grievance Appeal). He further contends Defendants “have placed a choice in which [he]
faces considerable pressure to abandon the religious exercise at issue.” Id. at 8. He contends
that as “a direct and proximate result of the deliberate indifference of [D]efendant[s], [he]
has had to modify his belief or starve and to violate the commands of God, becoming
defiled.” Id. at 11. Witherspoon also alleges he “continues to suffer by Defendants’ acts

due to each Defendant defining and interpreting scripture and forcing that belief on [him].”
Id. He claims he has exhausted his administrative remedies. Id. at 3. Witherspoon asks the
Court to intervene on his behalf and seeks a temporary restraining order and injunction to
enjoin Defendants from “further denial of [his] religious exercise” and asks the Court to
mandate that Defendants “provide [his] religious dietary law meals.” Id. at 12. He also asks

for compensatory damages for “physical and mental anguish[.]” Id. Witherspoon was
permitted to supplement his allegations by submitting answers to the Court’s questionnaire,
which he did on February 8, 2021. See Pl.’s Ans., ECF No. 7.
On April 1, 2021, after reviewing and screening Witherspoon’s pleadings and
answers to the Court’s questionnaire under the provisions of 28 U.S.C. §§ 1915A(b) and

1915(e)(2)(B), the Court denied Witherspoon’s application for temporary restraining order,
dismissed his claims against all Defendants with the exception of those against Chaplain
McDuffie, and permitted Witherspoon to obtain service of his claims against Chaplain

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McDuffie. See Order Denying Motion for Temporary Restraining Order and Order of

Partial Dismissal under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) (ECF No. 9); Judgment
under Federal Rule of Civil Procedure 54(b) (ECF No. 10); Order Regarding Completion
and Service of Summons (ECF No. 11).
On May 4, 2021, Chaplain McDuffie moved to dismiss all claims pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See ECF Nos. 14, 16. The motions
have been fully briefed and are ripe for disposition.

II. LEGAL STANDARDS
A. Case or Controversy Requirement
Federal courts are courts of limited jurisdiction and must have statutory or
constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994) (citations omitted); Home Builders Ass’n of Miss., Inc. v. City of Madison,

143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the
Constitution, they lack the power to adjudicate claims and must dismiss an action if subject
matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138 F.3d 144,
151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th
Cir. 1994)). The court cannot assume that it has jurisdiction; rather, “the basis upon which

jurisdiction depends must be alleged affirmatively and distinctly and cannot be established
argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254,

5
1259 (5th Cir. 1988) (citing Illinois Cent. Gulf R.R. Co. v. Pargas, Inc., 706 F.2d 633, 636

n.2 (5th Cir. 1983)).
Article III of the United States Constitution limits federal jurisdiction to actual
“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2. “[C]ourts may not decide cases
that since have become moot because there is no longer a live case or controversy.” Tex. v.
EEOC, 933 F.3d 433, 449 (5th Cir. 2019). The requirement that there be a case-or-
controversy “subsists through all stages of federal judicial proceedings, trial and appellate.

[I]t is not enough that a dispute was very much alive when suit was filed; the parties must
continue to have a personal stake in the ultimate disposition of the lawsuit.” Chafin v.
Chafin, 568 U.S. 165, 172 (2013) (internal citation and quotation marks omitted). A case
becomes moot when “it is impossible for a court to grant any effectual relief whatever to
the prevailing party.” Knox v. Serv. Emp. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)

(internal quotation marks omitted).
With mootness, a plaintiff must demonstrate that he has a personal stake in the
outcome of the litigation, and it continues through “all stages of review, not merely at the
time the complaint is filed. A case that becomes moot at any point during the proceedings
is ... outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S.

Ct. 1532, 1537 (2018) (citation and quotation marks omitted).

6
B. Fed. R. Civ. P. 12(b)(1)

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, “a court may evaluate (1) the complaint alone, (2) the complaint supplemented
by undisputed facts evidenced in the record, or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Den Norske Stats
Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (citation omitted).
When a motion to dismiss for lack of subject matter jurisdiction is supported by evidence,

it is considered a factual attack, and “no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645
F.2d 404, 413 (5th Cir. 1981). The court is therefore “free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Id. In response to a factual attack,

the plaintiff, as the party seeking to invoke jurisdiction, has the burden of submitting
evidence and proving by a preponderance of the evidence the existence of subject matter
jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Regardless of
whether the attack is facial or factual, the party asserting federal jurisdiction “constantly
bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
Here, Chaplain McDuffie raises a factual challenge to the Court’s subject matter
jurisdiction.

7
C. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires a claim for relief to contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV.
P. 8(a)(2). Rule 8 does not require detailed factual allegations, but “it demands more than
an unadorned, the- defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a
plaintiff fails to satisfy Rule 8(a), the defendant may file a motion to dismiss the plaintiff’s

claims under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon
which relief may be granted.” FED. R. CIV. P. 12(b)(6).
To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility 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. at 663 (citing Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id.
(quoting Twombly, 550 U.S. at 557).

8
In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts

in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier
v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not
bound to accept legal conclusions as true, and only a complaint that states a plausible claim
for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-
pleaded factual allegations, the Court assumes their veracity and then determines whether

they plausibly give rise to an entitlement to relief. Id.
“Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper
attachments, documents incorporated into the complaint by reference, and matters of which
a court may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757,
763 (5th Cir. 2011) (citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights,

Ltd., 551 U.S. 308, 322 (2007). A court may also consider documents that a defendant
attaches to a motion to dismiss if they are referred to in the plaintiff’s complaint and are
central to the plaintiff’s claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-
99 (5th Cir. 2000).
III. ANALYSIS

A. Rule 12(b)(1) Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(1), Chaplain McDuffie raises a
factual challenge to the subject matter jurisdiction of this Court. He contends that
Witherspoon’s request for injunctive and declaratory relief is moot because the Tarrant

9
County Sheriff’s Office (“TCSO”) is now providing Witherspoon with his requested

kosher diet in accordance with the Religious Diet Participation Agreement that
Witherspoon executed. Chaplain McDuffie, therefore, asks the Court to dismiss
Witherspoon’s claims for injunctive and/or declaratory relief under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction, as there is no live case or
controversy before the Court. For the reasons that follow, after considering the parties’
arguments and evidence presented by both Chaplain McDuffie and Witherspoon,2 the

Court agrees that it lacks subject matter jurisdiction over Witherspoon’s requests for
injunctive and declaratory relief and dismisses these claims.
The undisputed evidence provided by Chaplain McDuffie in support of his factual
challenge under Rule 12(b)(1) shows that Witherspoon initially claimed to be a Buddhist
and vegetarian to medical staff and, on September 10, 2019, he sent a request for services

to the Tarrant County Hospital District claiming that he needed “an ovalacto vegan diet

2In his reply brief (see Def.’s Reply, ECF No. 25 at 5), Chaplain McDuffie objects on
multiple grounds to Witherspoon’s exhibits from other inmates concerning their alleged religious
diet requests. The Court has reviewed Witherspoon’s Exhibits at Appendix D (ECF No. 23) and
sustains Chaplain McDuffie’s objection based on relevance. Because Witherspoon has not filed a
class action, he lacks standing to raise complaints on behalf of any other jail inmates. See
McGowan v. Md., 366 U.S. 420, 429 (1961) (“[T]he general rule is that a litigant may only assert
his own constitutional rights or immunities.”) (internal quotation marks omitted). Evidence of any
other inmate’s complaint about his religious diet is, therefore, irrelevant to Witherspoon’s claims.
See Fed. R. Evid. 401, 402. Chaplain McDuffie also objects to Witherspoon’s exhibits that
constitute a settlement offer. The Court has reviewed Witherspoon’s Exhibits at Appendix E (ECF
No. 23) and sustains Chaplain McDuffie’s objection. Federal Rule of Evidence 408 precludes
introducing an offer or acceptance of a settlement “to prove or disprove the validity or amount of
a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” Fed. R. Evid.
408(a).

10
tray because I don’t eat meat or anything that has a breath.” Def.’s Ex. 1, ECF No. 15 at 3.

The Tarrant County Hospital District informed him that medical staff did not provide
vegetarian diets “[without] any cogent medical reason.” Id. Medical staff, however, advised
him that he could submit a request through the TCSO Chaplain’s Office. Id. Consistent
with federal law,3 the TCSO sent Witherspoon a questionnaire to inquire about the
sincerity and authenticity of his Buddhist faith and dietary beliefs. Id. Ultimately, the
TCSO allowed Witherspoon to participate in its Religious Diet Program, Witherspoon

signed a Religious Diet Participation Agreement, and the TCSO began providing
Witherspoon with a lactovegetarian diet. Def.’s Ex. 4, ECF No. 15 at 15, 19-21. Under the
Religious Diet Participation Agreement signed on October 1, 2019, Witherspoon agreed
that he would not request a change of his religious diet for a year, and he also agreed that
a violation of these rules could result in the termination of his participation in the religious

diet program. Id., ECF No. 15 at 16.
Prior to the expiration of one year, on July 21, 2020, Witherspoon sent a new
message to the Chaplain’s Office, writing, “I have been studying the Messianic Jewish rites
and would like to apply for kosher meals please[,]” and he requested a new application.
Id., ECF No. 15 at 16. The TSCO requested additional information regarding

3See Holt v. Hobbs, 574 U.S. 352, 369 (2015) (Alito, J.) (“[P]rison officials may
appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested
accommodation, is authentic.” (citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)
(Ginsberg, J.) (“[T]he [RLUIPA] does not preclude inquiry into the sincerity of a prisoner’s
professed religiosity.”))
11
Witherspoon’s conversion, as is permissible (see supra note 3). On August 23, 2020, still

within the one-year period of his Religious Diet Participation Agreement, Witherspoon
filed a grievance complaining about the “undue delay” of the Chaplain’s Office in
processing his request to change his religious diet. The Chaplain’s Office responded to
Witherspoon’s request as follows:
No pork, pork products or other unclean/unlawful meats are served in
any TC jail meal. Kosher meals are reserved for those that are from Jewish
heritage, can provide specific conversion information or can provide
information of the Rabbi they were working with prior to their incarceration.
If you can provide any of the above information, your request will be
considered. In the event you cannot, the advising Rabbi would approve
lactovegetarian meals since you are new to that faith. You are receiving
lactovegetarian meals.

Id. Witherspoon’s grievance was denied, and he appealed that decision. Id. Witherspoon’s
appeal was denied but he did not appeal that decision to the Sheriff per the TCSO’s
grievance process. Id., ECF No. 15 at 17.
On October 13, 2020, Witherspoon filed this lawsuit. Given that the one-year period
of his Religious Diet Participation Agreement had expired, the Chaplain’s Office sent
Witherspoon a new Religious Diet Questionnaire and instructed Witherspoon, “A
Religious Diet Participation Agreement is being forwarded for your completion with
detailed responses and information provided will be verified.” Id., ECF No. 15 at 17. After
several months of inquiry regarding the nature of Witherspoon’s conversion, and
Witherspoon’s generally declining to answer questions and referring the TSCO to this
lawsuit, ultimately, the TCSO made the decision to provide Witherspoon with his requested
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kosher diet. Id., ECF No. 15 at 18. Witherspoon executed a new Religious Diet

Participation Agreement and acknowledged it before Chaplain McDuffie. Id., ECF No. 15
at 24. The TCSO Chaplain’s Office sent the TCSO kitchen a memorandum on April 14,
2021, assigning kosher meals to Witherspoon. Id., ECF No. 15 at 18, 25. Those meals are
now being provided to him, and the TCSO Chaplain’s Office has not heard from
Witherspoon that he is not receiving those meals. Jail records confirm that Witherspoon is
receiving his kosher meals. Def.’s Ex. 3, ECF No. 15 at 13. Weatherspoon’s medical

records indicate that he weighed approximately 230 pounds during his initial assessment
on July 12, 2019, 288 pounds as of September 11, 2020, and 320 pounds as of April 16,
2021. Def.’s Ex. 1, ECF No. 15 at 2, 4; Def.’s Ex. 2, ECF No. 15 at 6.
Based on the evidence before the Court as summarized above, Witherspoon has
failed to meet his burden of proof to show a live case or controversy, and his claims for

injunctive and/or declaratory relief are moot. See, e.g., Mares v. LePage, 16-cv-03082-
RBJ-NYW, 2017 WL 3836042, at *4 (D. Colo. Aug 31, 2017) (finding inmate’s religious
diet claims were mooted because the facility provided the inmate the requested diet before
he was transferred to another facility); see also Cooper v. Sheriff, Lubbock Cnty., Tex., 929
F.2d 1078, 1084 (5th Cir. 1991) (claims for injunctive relief based on denial of food at

prior jail were moot).
Further, although Witherspoon in response appears to be contending that this case
is not moot because failure to provide a kosher diet is capable of repetition, he has failed

13
to meet this narrow exception to the mootness doctrine, which only applies where “(1) the

challenged action is too short to be fully litigated before it ceases and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action
again.” Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 246 (5th Cir. 2006)
(citations omitted); see also Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008).
Witherspoon does not address the first prong. Under the second prong, which Witherspoon
arguably raises, Witherspoon, as the party invoking jurisdiction, must show a

“demonstrated probability” or “reasonable expectation,” not merely a “theoretical
possibility,” that he will be subject to the same government action. Libertarian Party v.
Dardenne, 595 F.3d 215, 217 (5th Cir. 2010).
Even liberally construed, Witherspoon does not meet his burden. His argument rests
on mere speculation and the theoretical possibility that Chaplain McDuffie might not

comply, at some unknown point in the future, with the Religious Diet Participation
Agreement Witherspoon signed. This is insufficient. Further, Witherspoon’s conjectural
concern is misplaced because, as Chaplain McDuffie correctly argues in his reply brief, it
is Witherspoon’s own future behavior—not Chaplain McDuffie’s—that will dictate
whether Witherspoon continues receiving the kosher diet. Witherspoon has stated his

conversion from Buddhism to Messianic Judaism and currently the TCSO is providing him
with a kosher diet under the jail’s religious diet program. Whether Witherspoon continues
to abide by the Religious Diet Participation Agreement to receive his requested kosher diet

14
is within his control. Because Witherspoon offers only conjecture in support of his concern

about the continuation of his kosher diet and has offered no competent evidence to rebut
Chaplain McDuffie’s evidence, he has failed to meet his burden of invoking the narrow
exception to the mootness doctrine and his claims for injunctive or declaratory relief are
moot.
Accordingly, after considering the pleadings and evidence, the Court determines
that it lacks jurisdiction to issue any injunctive or declaratory relief. The Court, therefore,

grants Chaplain McDuffie’s Rule 12(b)(1) motion to dismiss challenging the Court’s
subject matter jurisdiction over Witherspoon’s claims for injunctive and declaratory relief
and will dismiss these claims as moot.
B. Rule 12(b)(6) Motion to Dismiss
Chaplain McDuffie also moves to dismiss Witherspoon’s claim for compensatory

damages pursuant to Federal Rule of Civil Procedure 12(b)(6) on numerous alternative
grounds including, without limitation, that (i) Witherspoon has not pleaded a physical
injury; (ii) Witherspoon has not pleaded a plausible official capacity claim against Chaplain
McDuffie under Monell v. New York City Department of Social Services, 436 U.S. 658
(1978); and (iii) that Chaplain McDuffie in his individual capacity is entitled to qualified

immunity. See Def.’s Rule 12(b)(6) Mot. (ECF No. 16).4

4Chaplain McDuffie also objects to Witherspoon’s reliance on a recently-filed appendix to
support his responsive arguments. See Pl.’s App. (ECF No. 23). The Court sustains the objection.
Extrinsic evidence not included with a complaint is generally not appropriate for consideration in
ruling on a 12(b)(6) motion. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
15
Although not clear based on his Complaint or answers to the Court’s questionnaire,

in his response, Witherspoon clarifies that he is not bringing any claims against Chaplain
McDuffie in his individual capacity. Pl.’s Resp. 22, ECF No. 21. Accordingly, the Court
will dismiss all individual capacity claims (including for injunctive/declaratory relief or
any type of damages) against Chaplain McDuffie. See Martinez v. Bally’s Louisiana, Inc.,
244 F.3d 474, 476 (5th Cir. 2001) (“A judicial admission is a formal concession in the
pleadings or stipulations by a party or counsel that is binding on the party making them.”).

The Court, therefore, will only consider those arguments made by Chaplain McDuffie to
support dismissal of Witherspoon’s claims against him in his official capacity.
1. Physical Injury Requirement
Chaplain McDuffie contends that “Witherspoon has not alleged he suffered any
physical injury because of Chaplain McDuffie’s purported conduct [and that]

Witherspoon’s failure to allege a physical injury is fatal to his claims for compensatory
damages against Chaplain McDuffie.” Def.’s Rule 12(b)(6) Mot. 4 (ECF No. 16). For the
reasons that follow, after considering the legal briefing, pleadings, and applicable law, the
Court agrees with Chaplain McDuffie that because Witherspoon pleads no physical injury
in his Complaint or answers to the Court’s questions, the recovery of compensatory

damages for emotional or mental injuries allegedly suffered is precluded.
Title 42 U.S.C. § 1997e(e) provides that “No Federal Civil action may be brought
by a prisoner . . . for mental or emotional injury suffered while in custody without a prior

16
showing of physical injury or the commission of a sexual act.” This requirement “applies

to all federal civil actions in which a prisoner alleges a constitutional violation,” including
First Amendment and RLUIPA claims. Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir.
2005); see also Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 603, 605-06 (5th
Cir. 2008) (affirming district court’s grant of summary judgment in favor of defendants,
where prisoner only sought compensatory damages and did not allege any physical injury
regarding his claim that defendants violated his First Amendment right to freely exercise

his religion). The application of Section 1997e(e) is based on “the relief sought, and not
the underlying substantive violation.” Geiger, 404 F.3d at 375; see also Mayfield, 529 F.3d
at 605 (“We have held that the application of [§ 1997e(e)] . . . turns on the relief sought by
a prisoner, and that it prevents prisoners from seeking compensatory damages for violations
of federal law where no physical injury is alleged.”). Section 1997e(e) does not bar claims

for nominal and punitive damages. See Pomier v. Leonard, 532 F. App’x 553 (5th Cir.
2013); Hutchins v. McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007).
In his response, Witherspoon does not dispute Chaplain McDuffie’s argument that
he did not plead a physical injury. Instead, Witherspoon contends that (i) the physical injury
requirement does not apply to a First Amendment claim; and (ii) that he is seeking nominal

and punitive damages, and not compensatory damages. The Court addresses these
contentions in turn.

17
First, the Court rejects Witherspoon’s argument that the physical injury requirement

does not apply to a First Amendment claim as contrary to Fifth Circuit case law. See
Geiger, 404 F.3d at 374 (“To the extent Geiger seeks compensation for injuries alleged to
have resulted from a First Amendment violation, the district court properly determined that
his claim is barred by the physical injury requirement of § 1997e(e).”); see also Carter v.
Hubert, 452 F. App’x 477, 479 (5th Cir. 2011) (affirming district court’s grant of summary
judgment on prisoner’s “First Amendment claim that the defendants denied him the right

to freely exercise his religion by confiscating his Bible and other religious pamphlets
because he [did] not allege that he suffered a physical injury that was more than de
minimis”); Delafosse v. Stalder, No. 05-30173, 2006 WL 616053, at *1 (5th Cir. Mar. 13,
2006) (explaining that district court properly applied “the physical-injury requirement of
42 U.S.C. § 1997e(e) [as] bar[ring] [prisoner’s] First Amendment claim for compensatory

damages due to denial of a religious diet”).
Second, the Court has scoured the Complaint (ECF No. 1) and Witherspoon’s
answers to its questions (ECF No. 8) and, even liberally construed, concludes that
Witherspoon never sought punitive or nominal damages. Further, given Witherspoon’s
judicial admission that he is not pursuing individual-capacity claims against Chaplain

McDuffie, and is only pursuing official-capacity claims, any request for punitive damages
is foreclosed. A lawsuit against a governmental official in his official capacity is “only
another way of pleading an action against an entity of which [the official] is an agent.”

18
Monell, 436 U.S. at 690 n.55. “As long as the government entity receives notice and an

opportunity to respond, an official-capacity suit is . . . treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). Title 42 U.S.C. § 1983 does not permit
punitive damages on official-capacity claims. See Wilson v. Houston Cmty. Coll. Sys., 955
F.3d 490, 500 n.63 (5th Cir. 2020) (citing City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 270-71 (1981) (holding that municipalities and other government entities are immune
from punitive damages under § 1983)).

In short, having considered the Complaint (ECF No. 1), as supplemented by
Witherspoon’s answers to the Court’s questionnaire (ECF No. 8), the Court concludes
Witherspoon has not alleged he suffered any physical injury because of Chaplain
McDuffie’s purported conduct. In addition, notwithstanding Witherspoon’s statement in
his response brief that he is seeking punitive and nominal damages, his pleadings and

answers to the Court’s questions, even liberally construed, show otherwise. And even were
he seeking punitive damages, such relief is foreclosed given Witherspoon’s admission that
he is only suing Chaplain McDuffie in his official capacity. Under Fifth Circuit law,
Witherspoon’s failure to allege a physical injury requires the Court to dismiss his claims
for compensatory damages against Chaplain McDuffie.

2. Official Capacity Claim under Monell
As previously explained, Witherspoon sues Chaplain McDuffie under Section 1983
for alleged violations of the First Amendment and the RLUIPA arising out of his religious

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diet request. See Compl. (ECF No. 1); Pl.’s Ans. Court Questionnaire (ECF No. 8). In the

alternative to his motion to dismiss for failure to allege a physical injury, Chaplain
McDuffie moves to dismiss because Witherspoon has failed to state an official capacity
claim under Monell. Having considered the legal briefing and pleadings, for the reasons
that follow, the Court agrees.
Title 42 U.S.C. § 1983 “provides a civil remedy in federal court for violations, under
color of state law, of a person’s constitutionally recognized rights, privileges, or

immunities.” Miller v. Metrocare Servs., 809 F.3d 827, 833 (5th Cir. 2016) (quoting
Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006)). To state a claim under
Section 1983, a plaintiff must: (1) allege a violation of rights secured by the Constitution
or laws of the United States and (2) demonstrate that the alleged deprivation was committed
by a person or entity acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S.

149, 155 (1978); Bass v. Parkwood Hospital, 180 F.3d 234, 241 (5th Cir. 1999).
A governmental entity, such as Tarrant County, can be sued and subjected to
monetary damages and injunctive relief under Section 1983 only if its official policy or
custom causes a person to be deprived of a federally protected right. Board of the Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 694. A

governmental entity cannot be liable for civil rights violations under a theory of respondeat
superior or vicarious liability. Id.; Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979)

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(recognizing that “state vicarious liability doctrines are inapplicable in [section] 1983

suits.”).
Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s [or county’s] lawmaking
officers or by an official to whom the lawmakers have delegated policy-
making authority; or

2. A persistent, widespread practice of city [or county] officials or employees
which, although not authorized by officially adopted and promulgated policy,
is so common and well-settled as to constitute a custom that fairly represents
municipal [or county] policy. Actual or constructive knowledge of such
custom must be attributable to the governing body of the municipality [or
county] or to an official to whom that body had delegated policy-making
authority.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc ); Bennett v. City
of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). For purposes of a motion to dismiss
under Rule 12(b)(6), a plaintiff must plead facts from which the court can reasonably infer
that the “challenged policy was promulgated or ratified by the city’s [or county’s]
policymaker.” Groden v. City of Dallas, Texas, 826 F.3d 280, 285 (5th Cir. 2016).
“[C]ourts should not grant motions to dismiss for [the] fail[ure] to plead the specific
identity of the policymaker.” Id. (citation omitted).
“To survive a motion to dismiss, a complaint’s ‘description of a policy or custom
and its relationship to the underlying constitutional violation . . . cannot be conclusory; it
must contain specific facts.’” Balle v. Nueces Cnty., Texas, 952 F.3d 552, 559 (5th Cir.
2017) (quoting Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997)).
21
Thus, pleadings are sufficient when they make “specific factual allegations that allow a

court to reasonably infer that a policy or practice exists and that the alleged policy or
practice was the moving force” behind the alleged constitutional injury. Id. (citation
omitted).
Plaintiff fails to state a claim for liability under Section 1983 against Chaplain
McDuffie in his official capacity because Witherspoon’s Complaint (supplemented by his
answers to the Court’s questions), even liberally construed, fails to state supporting facts

identifying a policy, a policymaker to whom lawmakers have delegated policy-making
authority, an ordinance, a regulation, a decision by a policymaker, or a widespread custom
that fairly represents a policy that is the moving force behind an alleged violation of his
constitutional rights.
Witherspoon does not identify a policy or widespread practice that allegedly caused

his claimed constitutional violations. He does not identify any widespread practice caused
by the absence of any policy. Rather, Witherspoon has alleged an isolated incident, which
is insufficient to plead a pattern or practice. See Fraire v. City of Arlington, 957 F.2d 1268,
1278 (5th Cir. 1992). Because Witherspoon has not alleged facts that identify a policy or
practice that caused constitutional violations, he has not properly pleaded the

policy/custom element under the Twombly/Iqbal standard.
In addition, he does not allege facts supporting that an official policymaker
promulgated an unconstitutional policy regarding his request for a religious diet. The Court

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has already determined that “Witherspoon fail[ed] to allege any specific conduct on the

part of [Sheriff] Waybourn [who is a policymaker] that would render him subject to this
section 1983 lawsuit.” See Order 7 note 1 (ECF No. 9). Accordingly, Witherspoon has not
properly pleaded the policymaker element under the Twombly/Iqbal standard.
He also fails to allege that the custom or policy served as the moving force behind
the alleged constitutional violation. Accordingly, Witherspoon has not properly pleaded
the causation element under the Twombly/Iqbal standard.

In short, even viewing the well-pleaded allegations as true and liberally construing
his pleadings in light of his pro se status, the Court cannot reasonably infer that a policy or
custom exists, that a final policymaker actually or constructively knew of its existence, or
that the custom or policy served as the moving force behind any alleged constitutional
violation. As such, the Court cannot reasonably infer that Chaplain McDuffie in his official

capacity is liable for the misconduct alleged and concludes that Witherspoon’s allegations
fail to state a plausible Section 1983 claim against Chaplain McDuffie in his official
capacity. Accordingly, in the alternative to granting Defendant Chaplain McDuffie’s Rule
12(b)(6) motion to dismiss Plaintiff’s Section 1983 claim because he fails to plead a
physical injury, the Court grants his motion for failure to allege an official capacity claim

under Monell.

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3. RFRA

Chaplain McDuffie also moves to dismiss any claim Witherspoon may be seeking
to bring against him under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42
U.S.C. § 2000bb et seq. Witherspoon mentions RFRA in his Complaint in reference to
grievances he filed, but it is unclear if Witherspoon is also suing under RFRA. RFRA only
applies to the federal government and its actors. See Opulent Life Church v. City of Holly
Springs, 697 F.3d 279, 289 (5th Cir. 2012). Chaplain Wesley McDuffie is not a federal

actor and, therefore, RFRA does not apply. Accordingly, insofar as Witherspoon is seeking
to bring a RFRA claim, the Court will grant Chaplain McDuffie’s motion to dismiss this
claim.
4. Chapter 653 of the Texas Government Code
Chaplain McDuffie also moves to dismiss any claim Witherspoon may be seeking

to bring against him under Chapter 653 of the Texas Government Code, which concerns
“Bonds Covering Certain State Officers and Employees.” Witherspoon references section
653.001, which states that the chapter is the “State Employee Bonding Act.” See Compl.
(ECF No. 1) (citing Tex. Gov’t Code Ann. § 563.001). By Witherspoon’s own pleadings,
he acknowledges that Chaplain McDuffie is the chaplain for the Tarrant County Sheriff’s

Office, and, therefore, is not a state officer or employee. Consequently, Chapter 653 of the
Texas Government Code has no application to this action, and Witherspoon has failed to
state a claim that he is entitled to any relief that might be provided under Chapter 653.

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Accordingly, insofar as Witherspoon is seeking to bring a claim under Chapter 653 of the

Texas Government Code, the Court will grant Chaplain McDuffie’s Rule 12(b)(6) motion
to dismiss this claim.
IV. LEAVE TO AMEND
Generally, “a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009).
However, the Court is not required to grant leave to amend “if the plaintiff has already

pleaded his ‘best case.’” Id. For the reasons outlined here, Witherspoon’s claims against
Chaplain McDuffie are fatally infirm. In addition, the Court has already given him the
opportunity to supplement his Complaint by his Answers to the Court’s Questionnaire. See
Pl.’s Answers to Court’s Questions, ECF No. 8. Thus, the Court concludes Witherspoon
has already pleaded his best case and granting leave to amend would be futile and cause

needless delay.
V. CONCLUSION
Based on the foregoing, the Court GRANTS Defendant Chaplain Wesley
McDuffie’s Rule 12(b)(1) Motion (ECF No. 14) and GRANTS Defendant Chaplain
Wesley McDuffie’s Rule 12(b)(6) Motion (ECF No. 16). Accordingly, Witherspoon’s

claims for injunctive and declaratory relief against Chaplain McDuffie in his official
capacity are dismissed without prejudice as moot; Witherspoon’s § 1983 claim for
compensatory damages against Chaplain McDuffie in his official capacity is dismissed

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with prejudice for failure to state a claim; Witherspoon’s claims, if any, against Chaplain

McDuffie for violations of RFRA or under Chapter 653 of the Texas Government Code
are dismissed with prejudice for failure to state a claim; and Witherspoon’s claims against
Chaplain McDuffie in his individual capacity (including for injunctive/declaratory relief or
any type of damages) are dismissed without prejudice based on his judicial admission
that he is not bringing any claims against Chaplain McDuffie in his individual capacity.
In accordance with Federal Rule of Civil Procedure 58(a), a final judgment will

issue separately.
SO ORDERED this 25th day of June, 2021.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450242. Public record. Not legal advice.