# Purdy v. Director

> District Court, N.D. Texas · December 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10671443

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** December 15, 2023
- **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/10671443

## How later opinions describe it (automated extraction)

- explaining that judicially noticed facts may be considered in ruling on a motion to dismiss

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671443. Public record. Not legal advice.