Purdy v. Director

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GEORGE EDWARD PURDY,

INSTITUTIONAL ID NO. 2187077,

Plaintiff,

v. No. 4:22-cv-0264-P

LINDA THOMAS, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Plaintiff George Edward Purdy, a state prisoner proceeding pro se

and in forma pauperis (IFP), filed an amended civil-rights complaint

about the conditions of his confinement in Bridgeport Correctional

Center (BCC).1 See ECF Nos. 17, 23. Purdy claims that Defendants

Linda Thomas, the senior warden of BCC, and Betty Milligan, its

mailroom supervisor, in their individual capacities, violated his

constitutional right of access to the courts. He alleges that they

intentionally delayed processing his appellate filing fee payment, which

resulted in the United States Court of Appeals for the Fifth Circuit

dismissing his appeal of a lower court judgment dismissing his federal

habeas petition that attacked his state convictions. He seeks damages

and injunctive relief under 42 U.S.C. § 1983.

Defendants filed a motion to dismiss Purdy’s claims under Federal

Rule of Civil Procedure 12(b)(6). See ECF No. 28. Defendants argue that

(1) they are entitled to qualified immunity because Purdy fails to state

a constitutional violation; and (2) Purdy’s claims for injunctive relief are

not cognizable under § 1983.2

1When Purdy filed this action, he was incarcerated in BCC. He is currently

incarcerated in the TDCJ LeBlanc Unit in Beaumont, Texas, where he is serving

several sentences for multiple sexual assault offenses, three of which involved a child.

See https://inmate.tdcj.texas.gov/InmateSearch.

As explained below, Defendants’ motion is DENIED in part and

GRANTED in part.

BACKGROUND

In his amended complaint, Purdy includes the district court and

appellate court case numbers related to his underlying habeas petition.

See ECF No. 17 at 5. Thus, the Court takes judicial notice of the

following adjudicative facts, which are not disputed and gleaned from

public court records found on PACER.3 See Basic Cap. Mgmt., Inc. v.

Dynex Cap., Inc., 976 F.3d 585, 588 (5th Cir. 2020) (explaining that

judicially noticed facts may be considered in ruling on a motion to

dismiss). The Court also incorporates facts alleged by Purdy in his

complaint and deduced from documents attached to it.

In August 2020, Purdy filed a 28 U.S.C. § 2254 federal habeas

petition challenging his three 2018 Kendall County sexual assault

convictions in the United States District Court, Southern District of

Texas, San Antonio Division. On May 20, 2021, United States District

Judge Xavier Rodriguez dismissed Purdy’s petition as barred by the

applicable statute of limitations. On June 4, 2021, Purdy filed a notice

of appeal.

On June 14, 2021, the Fifth Circuit notified Purdy that he must ether

pay the $505 filing fee or file an IFP application in the district court

within 15 days. Purdy alleges that he immediately attempted to pay the

filing fee by filling out the appropriate withdrawal form and ensuring

that the correct postage and mailing addresses were used. On June 18,

2021, Warden Thomas approved Purdy’s request to withdraw $505 from

his inmate account to pay the appellate filing fee. See ECF No. 17 at 21.

On June 25, 2021, the United States Court of Appeals for the Fifth

Circuit granted Purdy an extension of time, giving him until July 29,

2021 to either pay the $505 filing fee or file an IFP motion. On August

4, 2021, the Fifth Circuit dismissed Purdy’s appeal for want of

prosecution because he failed to timely pay the fee.

3See Purdy v. Lumpkin, No. 5:20-CV-00944-XR (S.D. Tex. Aug. 10, 2020); see also

Purdy v. Lumpkin, No. 21-50482 (5th Cir. 2021). PACER (Public Access to Electronic

Records) is an official website of the United States Government. See

http://pacer.uscourts.gov.

Almost a month later, on August 31, 2021, Purdy’s withdrawal

request form was returned to him because it was missing a “ITF-25

Header page.” See ECF No. 17 at 23.

On September 14, 2021, Purdy filed a motion to reinstate his appeal

on the ground that prison officials delayed processing his fee payment.

On October 26, 2021, the Fifth Circuit denied the motion to reinstate.

On November 9, 2021, the Fifth Circuit received Purdy’s fee payment.

LEGAL STANDARDS

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

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. Terwilliger v. Reyna, 4 F.4th 270, 279 (5th Cir.

2021) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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. Id. The plausibility standard is not akin to a

“probability requirement,” but asks for more than a sheer possibility

that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.

Under this standard, all well-pleaded facts are viewed in the light

most favorable to the plaintiff, but the plaintiff must allege facts

(emphasis added) that support each element of the cause of action in

order to state a valid claim. See City of Clinton, Ark. v. Pilgrim’s Pride

Corp., 632 F.3d 148, 154–55 (5th Cir. 2010). Factual allegations must be

enough to raise a right to relief above the speculative level. City of

Clinton, Ark., 632 F.3d at 153 (citing Iqbal, 556 U.S. at 678). The court

does not accept as true “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements.” Id. (citations

omitted). Further, any ambiguities in the controlling substantive law

must be resolved in the plaintiff’s favor. See Walker v. Beaumont Indep.

Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (citing Lewis v. Fresne, 252

F.3d 352, 357 (5th Cir. 2001)).

In determining whether a plaintiff’s claims survive a Rule 12(b)(6)

motion to dismiss, the information to which the court addresses its

inquiry is limited to (1) the facts set forth in the complaint; (2)

documents attached to the complaint; and (3) matters of which judicial

notice may be taken under Federal Rule of Civil Procedure 201. Walker,

252 F.3d at 735 (citations omitted). Judicial notice may be taken of

matter of public record. Id. Documents attached to a motion to dismiss

or to a response to a motion to dismiss are considered part of the

pleadings, if they are referred to in the plaintiff’s complaint and are

central to his claims. See Collins v. Morgan Stanley Dean Witter, 224

F.3d 496, 498 (5th Cir. 2000).

B. Qualified Immunity

The doctrine of qualified immunity protects public officials from

liability for civil damages insofoar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known. Guerra v. Castillo, 82 F.4 th 278,

285 (5th Cir. 2023) (citations omitted).

Courts undertake a two-pronged analysis to determine whether a

government official is entitled to qualified immunity, inquiring: (1)

whether the facts that the plaintiff has alleged make out a violation of a

constitutional right; and (2) whether the right at issue was “clearly

established” at the time of the defendant’s alleged conduct. Id. (citations

omitted). Courts exercise their discretion in deciding which of the two

pongs of the qualified immunity analysis should be addressed first. Id.

A clearly established right is one that is sufficiently clear that every

reasonable officer would have understood that what he is doing violates

that right. Id. The Supreme Court has repeatedly told courts not to

define clearly established law at a high level of generality. Id. (citing

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The dispositive inquiry is

whether the violative nature of particular conduct is clearly established.

This inquiry must be undertaken in light of the specific context of the

case, not as a broad general proposition. Id.

When confronted with a qualified-immunity defense at the pleading

stage, the plaintiff must plead facts which, if proved, would defeat the

claim of immunity. Id. (citing Waller v. Hanlon,922 F.3d 590, 599 (5th

Cir. 2019). The pleading standards remain the same when a motion to

dismiss is based on qualified immunity. The crucial question is whether

the complaint pleads facts that, if true, would permit the inference that

Defendants are liable under § 1983, and would overcome their qualified

immunity defense. Id. (citing Terwilliger v. Reyna, 4 F.4th 270, 280 (5th

Cir. 2021) (internal quotations and citations omitted). At the motion to

dismiss stage, it is the plaintiff’s burden to demonstrate that qualified

immunity is inappropriate. Id. (citations omitted).

B. 42 U.S.C. § 1983

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

allege that (1) some person has deprived him of a federal right; and (2)

that the person acted under color of state or territorial law. See Arnold

v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citing Gomez v. Toledo,

446 U.S. 635, 640 (1980)).

Prisoners have a constitutionally protected right of access to the

courts, which is founded in the Article IV Privileges and Immunities

Clause, the First Amendment Petition Clause, and the Fifth and

Fourteenth Amendment Due Process Clauses. See Waller v. Hanlon, 922

F.3d 590, 601 (5th Cir. 2019) (citations omitted). Interference with a

prisoner’s right to access to the courts, such as delay, may result in a

constitutional deprivation. Chriceol v. Phillips, 169 F.3d 313, 317 (5th

Cir. 1999) (citing Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir.

1986)). Arguably, withholding access to a prison account to pay for legal

fees could, at a minimum, cause a delay in access to the courts. Id.

Withholding money from a prison account could also effectively deny

access to obtaining an attorney, filing a complaint, or mailing other legal

documentation. Id.

In Lewis v. Casey, 518 U.S. 343, 350 (1996), the Supreme Court held

that an inmate alleging denial of access to the courts must demonstrate

an actual injury stemming from defendants’ unconstitutional conduct.

Id. (citing Lewis, 518 U.S. at 351–54). This requires the inmate to allege

that his ability to pursue a “nonfrivolous,” “arguable” legal claim was

hindered. See Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009)

(citing Christopher v. Harbury, 536 U.S. 403, 415 (2002) (internal

quotation omitted)).

Denial-of-access claims take one of two forms: (1) forward-looking

claims alleging “that systematic official action frustrates a plaintiff or

plaintiff class in preparing and filing suits at the present time;” and (2)

backward-looking claims alleging that an official action has “caused the

loss or inadequate settlement of a meritorious case, the loss of an

opportunity to sue, or the loss of an opportunity to seek some particular

order of relief.” Waller, 922 F.3d at 601 (citing Harbury, 536 U.S. at 413–

14).

ANALYSIS

Because Purdy alleges that Defendants’ actions caused him to lose

the opportunity to seek appellate review of Judge Rodriguez’s order

dismissing his federal habeas petition, the Court construes Purdy’s

complaint as raising a backward-looking claim.

“To maintain a backward-looking claim, a plaintiff must identify (1)

a nonfrivolous underlying claim; (2) an official act that frustrated the

litigation of that claim; and (3) a remedy that is not otherwise available

in another suit that may yet be brought.” Id. at 62 (quoting United States

v. McRae, 702 F.3d 806, 830–31 (5th Cir. 2012)).

Defendants contend that they are entitled to qualified immunity

because Purdy fails to state a constitutional violation. They make only

one argument—Purdy “does not allege any facts that he had a

nonfrivolous underlying claim.” In other words, they contend that Purdy

has failed to demonstrate an actual injury. They insist that Purdy must

plead facts to show that “[he] could have successfully argued [his] appeal

if it had not been dismissed for failure to pay the filing fee.” See ECF No.

28.

The Court disagrees.4 “The very point of recognizing any access claim

is to provide some effective vindication for a separate and distinct right

to seek judicial relief for some wrong.” Christopher v. Harbury, 536 U.S.

414–15 (2002). While the underlying cause of action must be addressed

4The Court has conducted an exhaustive review of the jurisprudence governing

access-to-court claims. The substantive law governing such claims is vast and complex,

and there are many ambiguities in it, particularly with respect to the factual detail an

inmate must provide in his pleadings to plausibly show that his underlying claim is

nonfrivolous. However, as previously noted, at this stage of litigation, any such

ambiguities in the controlling substantive law must be resolved in the plaintiff’s favor.

See Walker, 938 F.3d 724 at 735. Moreover, if the Court were to adopt Defendants’

position, it would arguably require the Court to conduct a de novo review of Judge

Rodriguez’s order dismissing Purdy’s habeas petition. The Court does not have

jurisdiction to reopen and review an action dismissed by another district court. See

Hopkins v. Eason, 104 F. App’x 448, 449 (5th Cir. 2004) (citations omitted). That is the

precise function of an appellate court.

by allegations in the complaint sufficient to give fair notice to a

defendant, it generally need not be tried independently. See id. at 416.

The Fifth Circuit has, in several instances, found that an inmate’s

allegation that he merely lost an opportunity to seek a particular type

of relief is enough to show an actual injury for purposes of stating a

backward-looking claim. In doing so, the circuit did not address whether

the inmate would likely prevail on his underlying claim for relief. See,

e.g., Brewer v. Wilkinson, 3 F.3d 816, 826 (1993) (concluding that inmate

had sufficiently alleged the element of legal prejudice for purposes of

access claim by alleging that TDCJ mail-room employees’ actions

prevented his writ of mandamus form arriving at the district court);

Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986) (prisoner’s appeal of

civil suit was dismissed for failure to timely file required affidavit;

concluding that allegations that prison mailroom personnel deliberately

delayed delivery of prisoner’s papers stated cause of action under § 1983,

since mailroom personnel should reasonably have known that delay

would cause denial of right of access to courts); Koch v. Foster, 41 F.3d

663 (5th Cir. 1994) (suggesting that inmate would have pleaded

sufficient facts to demonstrate prejudice for purposes of a backward-

looking claim had he alleged “that any legal action was dismissed

because of the delay, that he was unable to file an action, or that he

missed any filing deadline due to the mishandling of his mail.”); Chriceol

v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) (suggesting that inmate

would have pleaded sufficient facts to demonstrate an actual injury had

he alleged that prison officials’ delay in processing his request to

withdraw money from his prison account to file a civil-rights complaint

prevented him from filing the complaint); Boyd v. West, 62 F.3 397 (5th

Cir. 1995).

After reviewing the well-pleaded facts and ambiguities in the

controlling substantive law in Purdy’s favor and taking judicial notice of

relevant public court records, the Court concludes that Purdy has

sufficiently alleged a nonfrivolous claim to give fair notice to

Defendants. Purdy specifically alleges that, because of Defendants’

intentional delay in processing his appellate filing fee payment, he lost

his opportunity to seek appellate review of Judge Rodriguez’s order

dismissing his federal habeas petition. He alleges that the Fifth Circuit

dismissed his appeal for failure to timely pay the $505 filing fee. Purdy

provides the relevant case numbers and attaches a letter from the Fifth

Circuit, confirming the reason for its dismissal of his appeal. In addition,

Purdy attaches documents to his complaint, which reflect that (1) he

made a timely request to withdraw funds from his inmate to pay the

filing fee; and (2) there was an almost two-month delay before his

request was returned to him with a note stating that it could not be

processed because of a form deficiency. He did not receive notice of this

deficiency until after the Fifth Circuit dismissed his appeal. And Purdy’s

effort to reinstate his appeal because of the delay was rejected by the

Fifth Circuit. Under the cases cited above, the Court concludes that

Purdy’s factual allegations sufficiently identify a nonfrivolous

underlying claim.

Moreover, in their motion, Defendants do not argue that Purdy has

failed to plead sufficient facts to satisfy the remaining two elements

necessary to state a plausible backward-looking claim. In other words,

they do not, at this stage of litigation, argue that Purdy failed to plead

sufficient facts to demonstrate that their actions frustrated his ability

to litigate his appeal or that the remedy he seeks here is not available

in another suit that may be brought.

Under these circumstances, the concludes that Purdy has pleaded

sufficient facts to overcome Defendants’ qualified-immunity defense at

this stage of litigation. However, the Court expresses no opinion on

whether Purdy will be able to overcome the defense if raised again in a

motion for summary judgment or at trial.

Lastly, the Court concludes that Purdy’s claims for injunctive relief—

that he be released from TDCJ and relieved of his SORNA registration

requirement—are habeas in nature and, therefore, not cognizable under

§ 1983. See Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112,

1119 (5th Cir. 1987).

CONCLUSION

For these reasons, Defendants’ motion to dismiss is DENIED in part

and GRANTED in part.

Purdy’s § 1983 claims to recover monetary damages against

Defendants remain pending before the Court. His claims for injunctive

relief are DISMISSED as not cognizable under § 1983.

The Court will enter a scheduling order in due course.

SO ORDERED on this 15th day of December 2023.