Opinion

Epley v. Lopez

Court
Court of Appeals for the Fifth Circuit
Filed
Apr 21, 2025
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 34.9%

holding that a prisoner’s broken leg was a qualifying disability where it limited her mobility

How later courts described this case

  • holding that a prisoner’s broken leg was a qualifying disability where it limited her mobility
  • application of the doctrine is discretionary and “more likely . . . when the prior opinion was apparently well-considered.”
  • applying these and other factors in analyzing venue under § 1404(a)
  • noting a federal court’s obligation to liberally construe the pleadings of pro se parties

Written by the judges who cited it.

The opinion

Case: 23-10374 Document: 77-1 Page: 1 Date Filed: 04/21/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 23-10374

FILED

April 21, 2025

____________

Lyle W. Cayce

Charles Epley, also known as Pierryck Castellazzi, Clerk

Plaintiff—Appellant,

versus

Daniel Lopez; FNU LNU, Duty Medical Official, also known as Blue,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:18-CV-115

______________________________

Before Clement, Graves, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge: *

Charles Epley, a former Texas state prisoner, sued numerous officials

at three different prisons in which he had been incarcerated, alleging

violations of his constitutional rights. He challenges the severance and

transfer of his claims against the officials at one prison to the division in which

they were geographically located, as well as that division’s dismissal of his

claims against those officials. We AFFIRM.

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-10374

I

For 28 years, Epley was a prisoner of the Texas Department of

Criminal Justice’s Institutional Division (“TDCJ”). During an attack in

1994, he suffered a traumatic brain injury (“TBI”) and the onset of Post-

Traumatic Stress Disorder (“PTSD”). As a result, he received a single-cell

medical designation, i.e., housing in a typical cell without cellmates.

A

On June 2, 2016, Epley was transferred to the James Lynaugh Unit in

Fort Stockton, located in the Pecos Division of the Western District of Texas.

Hours later, he was transferred to the John Montford Unit, a psychiatric

correctional facility in Lubbock, located in the Lubbock Division of the

Northern District of Texas.

Lubbock officials placed Epley in a single-occupant cell for his first

four days; they then attempted to move him to a cell occupied by three other

prisoners. Epley claims that when he objected, the officials used “chemical

agents and a 5 man team . . . to gain compliance from [him].” When he

refused to enter the new cell, officials placed Epley “naked, except for []

underwear, inside an empty day-room where [he] was overwhelmed with

TBI/PTSD symptoms.” Officials then administered a chemical agent

“through a special opening in the door” to the room, filling it with gas and

reportedly causing Epley to feel as though he was suffocating. Epley alleges

that several armed guards then entered the room and beat him, causing

“intense pain in [Epley’s] head, face, nose, ear, [and] front teeth” and

“breaking several ribs on [Epley’s] right side.” That night, he experienced

additional symptoms as a result of the attack; he “felt very dizzy[,]” “lost

consciousness[,]” and “vomited several times during the night.”

The next morning, officials transported Epley to the French

Robertson Unit in Abilene, located in the Abilene Division of the Northern

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District of Texas. Epley alleges that his injuries caused him “to experience

excruciating pain during the lengthy (believed to be about 170 miles long) and

difficult” bus ride to Abilene, and that he should have been transported in a

medical van rather than a standard prison transport bus. The transport bus

driver allegedly passed along orders from Lubbock officials to prevent Epley

from obtaining any medical care in Abilene.

In Abilene, Epley alerted several prison officials to his injuries and

requested medical attention. Other prisoners also noticed Epley’s injuries

and asked prison officials to attend to him. Epley claims prison officials told

Sergeant Daniel Lopez (“Sergeant Lopez”) that he had been beaten by

Lubbock officials and that he should not receive any medical care. Sergeant

Lopez “indicated that he understood what he had to do to deny [Epley]

much-needed medical treatment, and that he [would] block [Epley’s] access

to medical care.” Sergeant Lopez allegedly refused to notify medical

personnel that Epley needed treatment even after Epley and other prisoners

told Sergeant Lopez about the severity of Epley’s injuries. Sergeant Lopez

then “threatened [Epley] with additional harm if he did not immediately and

silently enter a cell.” Epley alleges that Sergeant Lopez’s conduct showed

his involvement in a conspiracy with other prison officials to deny Epley the

care he needed.

An unidentified medical assistant to whom Epley referred as “Blue”

dispensed medication to prisoners in the Abilene prison. When she saw Epley

in his cell, she was “horrified” and informed him that she would try to alert

medical staff so that his injuries could be treated. Epley alleges he was never

seen by any medical official in Abilene and Blue ignored his complaints after

their first conversation. Epley alleges that Blue was also part of a conspiracy

intended to prevent him from receiving the treatment he needed.

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Epley was later transported back to Fort Stockton. There, he reported

the beating he sustained in Lubbock to prison officials, but he obtained no

relief through the grievance process.

B

After his release from prison, Epley filed this suit in May 2018 in the

Dallas Division of the Northern District of Texas. That division then

transferred the case to the Lubbock Division.

On June 6, 2018, Epley amended his complaint, naming

approximately 40 officials from all three prison facilities. In relevant part, he

asserted claims under 42 U.S.C. § 1983 for violations of his First, Eighth, and

Fourteenth Amendment rights; claims under the Americans with Disabilities

Act (“ADA”) and Rehabilitation Act; state law negligence claims; and

conspiracy claims under 42 U.S.C. § 1985.

In August 2018, the Lubbock Division concluded that Epley had filed

his claims against the Abilene and Fort Stockton officials “in the wrong

division and/or district.” It found that because Epley alleged that Appellees

had violated his rights in Abilene, “‘a substantial part of the events or

omissions giving rise’ to these claims occurred in the Abilene Division.” The

court severed “all claims against [Appellees] alleged to have occurred” in

Abilene and transferred them to the Abilene Division “in accordance with 28

U.S.C. § 1406(a).” It also severed and transferred the claims against the Fort

Stockton officials to the Pecos Division. The Lubbock Division retained the

claims against all other defendants.

Epley objected to the severance-and-transfer order in the Lubbock

Division and moved for its reconsideration. On reconsideration, the

magistrate judge concluded in relevant part:

Epley offers no credible basis for the court to reconsider its

initial determination that the transferred claims were filed []

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in . . . a location that, in the interest of justice, required transfer

for the convenience of the majority of the parties and witnesses

(Abilene defendants). In the court’s view, the overall

availability and convenience of the witnesses and parties, the

cost of obtaining witness attendance, the relative ease of access

to proof, and the place of the alleged wrong, outweigh any other

considerations for location of the appropriate forum. See 28

U.S.C. § 1404(a); Von Graffenreid v. Craig, 246 F. Supp. 2d

553, 562 (N.D. Tex. 2003) (applying these and other factors in

analyzing venue under § 1404(a)).

Meanwhile, the Abilene Division ordered Epley to file a second

amended complaint “limited to the claims against Sergeant Lopez and Blue

that were severed from the prior action and transferred” to Abilene, which

would “supersede and entirely replace the amended complaint.” Epley

moved for leave to add defendants to his amended complaint, which had not

yet been filed. He reiterated his position that officials at all three prisons had

conspired to violate his constitutional rights and requested leave “to add, in

his Amended Complaint . . ., ALL the Texas prison officials who caused him

severe harm at the [Abilene] prison.” Epley then filed his second amended

complaint.

The Abilene Division denied Epley’s motion for leave to add

defendants because it concluded that Epley effectively wanted it to

reconsider the Lubbock Division’s severance-and-transfer order. Because

“that [was] not [its] role,” and the defendants Epley sought to add were

already defendants in the pending Lubbock proceedings, the court denied the

motion. It also overruled Epley’s subsequent objections to the denial of his

motion.

The Abilene Division subsequently ordered Epley to respond to a

questionnaire to develop the factual allegations in Epley’s second amended

complaint more fully. After requesting and receiving an extension of time to

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respond, Epley filed his responses and several exhibits, in which he fleshed

out his allegations regarding the failure to provide proper bedding and

restroom accommodations. He explained that Blue first noticed his bruises

when she brought him medications that were intended to treat ailments

predating the alleged June 2016 attack.

For the first time, Epley explained that he had become a target of

abuse from fellow prisoners and prison officials because he wanted to sue

TDCJ to vindicate his right to grow long cranial hairs pursuant to his practice

of “an ancient European Nature-based religion.” Officials then allegedly

“colluded to retaliate by having [him] transferred to [Fort Stockton.]”

The Abilene Division ordered Epley to complete a second

questionnaire. Following another extension of time to respond, Epley

responded to some of the questions. In relevant part, he explained his

understanding that Appellees did not have the authority or obligation to

provide medical treatment. Instead, they were obligated to report Epley’s

injuries to medical professionals. He also provided more detail about his

interactions with Sergeant Lopez. For instance, Epley alleged he showed

Sergeant Lopez the visible bruises on his face and back, and when he told

Sergeant Lopez that Lubbock officials had beaten him, Sergeant Lopez

“ordered [Epley] to shut up and to follow him to [Epley’s] ‘cage’” or he

would be beaten in Abilene, too.

As for Blue, Epley alleged “there is no available proof that ‘Blue’

actually . . . alerted anyone.” He also maintained that his disabilities should

have been accommodated while he was in Abilene by housing him in an in-

patient bed in the infirmary rather than just a single-occupancy cell or a

regular cell with other prisoners. Finally, he attempted to explain his

Fourteenth Amendment claim, noting that he was asserting claims under the

Equal Protection Clause rather than the Due Process Clause.

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In February 2023, a magistrate judge recommended dismissal of

Epley’s claims against Appellees under 28 U.S.C. §§ 1915 and 1915A. The

magistrate judge recommended dismissing Epley’s First, Eighth, and

Fourteenth Amendment claims and conspiracy claims, 1 and his claims for

failure to accommodate his disabilities, with prejudice for frivolousness and

failure to state a claim. The magistrate judge also recommended dismissing

Epley’s state law claims without prejudice for lack of subject-matter

jurisdiction. The district judge adopted the recommendation in full, over

Epley’s objection, and dismissed the complaint. This appeal followed.

II

Epley argues that when it severed his case, the Lubbock Division

“failed to apply either § 1404(a) or this Court’s precedent on combined

severance-and-transfer decisions[,]” and that “severance and transfer []

were improper under both analyses[,]” including the “scant reconsideration

analysis[,]” because the § 1404(a) factors did not favor severance and

transfer. 2

Epley previously challenged the Lubbock Division’s severance-and-

transfer analysis during his appeal of the Pecos Division’s dismissal of his

claims against the Fort Stockton officials. See Epley v. Itie, No. 21-50574, 2024

WL 864304, at *1 n.1 (5th Cir. Feb. 29, 2024). That same analysis also

applied to the claims against Appellees—the Lubbock Division analyzed the

severance-and-transfer of the claims against the officials in both Fort

Stockton and Abilene together. On reconsideration, it also analyzed the

severance-and-transfers to both the Abilene and Pecos Divisions together.

_____________________

1

Epley does not challenge the district court’s dismissal of his conspiracy claims.

2

Epley contends that “effective relief remains possible here because the severed

Lubbock action is still pending,” and he has been appointed counsel to represent him there.

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In a footnote, Itie “declined to consider [Epley’s] arguments”

concerning the severance-and-transfer to the Pecos Division because he

“failed to seek mandamus after the transfer occurred.” 2024 WL 864304, at

*1 n.1 (citing Def. Distributed v. Bruck, 30 F.4th 414, 423, 426 n.13 (5th Cir.

2022)). Bruck held that “in this circuit, mandamus is the prescribed vehicle

for reviewing rulings of transfers of cases pursuant to 28 U.S.C. § 1404(a).”

30 F.4th at 423. Itie appears to have implicitly found that the Lubbock

Division transferred Epley’s claims under § 1404(a).

We need not decide whether the footnote in Itie is sufficient to invoke

the law of the case doctrine 3 here, precluding our consideration of the initial

and reconsideration orders. See Trans World Airlines, Inc. v. Morales, 949 F.2d

141, 144 (5th Cir. 1991) (application of the doctrine is discretionary and

“more likely . . . when the prior opinion was apparently well-considered.”).

We see no reason to reach a different result.

“‘[A] district court may transfer a case upon a motion or sua

sponte.’” Moler v. Wells, 18 F.4th 162, 167 n.8 (5th Cir. 2021) (quoting

Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987)

(per curiam) (in turn citing § 1404 and § 1406)). Courts have broad

discretion in deciding whether to order a transfer under either statute.

Caldwell, 811 F.2d at 919 (citations omitted); see also McKinney v. McDuffie,

789 F. App’x 413, 417 (5th Cir. 2019) (per curiam) (finding that the

magistrate judge did not abuse discretion in preliminary screening by

severing the prisoner plaintiff’s claim of deliberate indifference and

transferring it to the district “where a substantial part of the events giving

_____________________

3

“[A] decision of a legal issue or issues by an appellate court establishes the ‘law

of the case’ and must be followed in all subsequent proceedings in the same case in the trial

court or on a later appeal in the appellate court . . . .” White v. Murtha, 377 F.2d 428, 431–

32 (5th Cir. 1967).

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rise to his claim occurred”). Generally, “[a] district court abuses its

discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on

erroneous conclusions of law; or (3) misapplies the law to the facts.” In re

Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc) (quoting

McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003)).

Here, although the initial transfer order cited and appeared to rely on

§ 1406(a), the court’s reconsideration order specifically referred to its

“initial determination” that transfer was appropriate under § 1404(a) and

explained how the § 1404(a) factors 4 weighed in favor of transfer of the

claims against the officials in Fort Stockton and Abilene. The order implicitly

acknowledged that it had cited § 1406(a) in error. And Epley expressly

challenges the § 1404(a) analysis—he does not expressly mention § 1406(a).

We agree with Itie that Bruck required Epley to seek mandamus after

the § 1404(a) transfer, and we likewise decline to consider his arguments. See

2024 WL 864304, at *1 n.1.

_____________________

4 The § 1404(a) factors include

(1) the relative ease of access to sources of proof; (2) the availability of

compulsory process to secure the attendance of witnesses; (3) the cost of

attendance for willing witnesses; (4) all other practical problems that make

trial of a case easy, expeditious and inexpensive; (5) the administrative

difficulties flowing from court congestion; (6) the local interest in having

localized interests decided at home; (7) the familiarity of the forum with

the law that will govern the case; and (8) the avoidance of unnecessary

problems of conflict of laws or in the application of foreign law.

In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (internal quotation marks omitted

and alteration adopted) (quoting In re Volkswagen, 545 F.3d at 315).

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III

Epley argues that the Abilene court erred in denying his motion for

leave to add other defendants to the Abilene proceedings.

We review a district court’s denial of a motion for leave to amend to

add defendants for an abuse of discretion. Baker v. Putnal, 75 F.3d 190, 196

(5th Cir. 1996). “A district court possesses broad discretion in its decision

whether to permit” amendments to pleadings. Crostley v. Lamar County, 717

F.3d 410, 420 (5th Cir. 2013) (citing McLean v. Int’l Harvester Co., 817 F.2d

1214, 1224 (5th Cir. 1987)).

Epley’s motion vaguely suggested that he wished to add defendants

from Lubbock and John and Jane Doe defendants from Abilene to these

proceedings. But the district court noted that Epley had already named

various Lubbock officials and John and Jane Does in Abilene in his original

complaint. When the Lubbock court severed the claims and transferred them

to the other two courts, it specifically provided that only the claims against

Appellees regarding the denial of medical care in Abilene would be severed

and transferred to Abilene. It then noted that the Lubbock case would remain

unchanged apart from the elimination of Appellees and specific defendants

from Fort Stockton.

The district court did not abuse its discretion by denying Epley’s

motion for leave. Epley apparently did not seek leave to add any defendants

that were not already named in one of the three suits. The district court

explained the basis for its denial: “[Epley] effectively want[ed] [the Abilene

Division] to reconsider how the [Lubbock Division] handled the severance

and transfer.” That conclusion was not an abuse of the district court’s broad

discretion.

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IV

Epley objects to the Abilene Division’s dismissal of his claims under

28 U.S.C. §§ 1915(e)(2) and 1915A with prejudice for frivolousness and

failure to state a claim upon which relief could be granted.

We review dismissals for frivolousness under 28 U.S.C.

§ 1915(e)(2)(B)(i) for abuse of discretion. Carmouche v. Hooper, 77 F.4th 362,

366 (5th Cir. 2023) (citing Boyd v. Biggers, 31 F.3d 279, 282 (5th Cir. 1994)).

“A district court may dismiss as frivolous the complaint of a prisoner

proceeding in forma pauperis if it lacks ‘an arguable basis in law or fact.’” Id.

(quoting McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998)). We

review a district court’s dismissal for failure to state a claim under

§ 1915(e)(2)(B)(ii), however, de novo. Id. Dismissal under that provision is

appropriate when the complaint “lacks sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Because the district court

dismissed the claims pursuant to both subsections, review should be de

novo.” Tapp v. Wilkersen, 298 F. App’x 308, 309 (5th Cir. 2008) (per curiam)

(unpublished) (citing Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)).

“Pro se pleadings . . . must be liberally construed.” Colvin v. LeBlanc,

2 F.4th 494, 497 (5th Cir. 2021) (citing Alderson v. Concordia Par. Corr.

Facility, 848 F.3d 415, 419 (5th Cir. 2017)); see also Estelle v. Gamble, 429 U.S.

97, 106 (1976) (noting a federal court’s obligation to liberally construe the

pleadings of pro se parties).

A

Epley alleges that the district court erred by dismissing his § 1983

claims under the Eighth, Fourteenth, and First Amendments.

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1

Epley alleges that Appellees violated his Eighth Amendment rights by

refusing to provide him with necessary medical treatment.

“Prisoners are entitled to receive adequate medical care[,]” Rogers v.

Boatright, 709 F.3d 403, 409 (5th Cir. 2013) (internal quotation marks

omitted and alteration adopted) (quoting Easter v. Powell, 467 F.3d 459, 463

(5th Cir. 2006)), and an official’s unreasonable withholding of such care can

violate the Eighth Amendment, id.; see also U.S. Const. amend. VIII. An

official “violates the Eighth Amendment’s prohibition against cruel and

unusual punishment when his conduct demonstrates deliberate indifference

to a prisoner’s serious medical needs, constituting an unnecessary and

wanton infliction of pain.” Rogers, 709 F.3d at 409 (internal quotation marks

omitted) (quoting Easter, 467 F.3d at 463). “A serious medical need is one

for which treatment has been recommended or for which the need is so

apparent that even laymen would recognize that care is required.” Gobert v.

Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citing Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).

“Deliberate indifference is an ‘extremely high’ standard to meet.”

Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (quoting Gobert, 463

F.3d at 346). The official must know of and deliberately disregard “an

excessive risk to inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference is “both

an objective and subjective standard.” Rogers, 709 F.3d at 410.

a

Epley claims a Lubbock official told Sergeant Lopez to prevent Epley

from receiving treatment and Sergeant Lopez agreed. Although other

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prisoners noticed the severity of Epley’s injuries and alerted Sergeant Lopez,

and Sergeant Lopez saw Epley’s bruises, he allegedly knew Epley had been

beaten by Lubbock officials and refused to alert medical professionals.

According to Epley, Sergeant Lopez then “threatened [Epley] with

additional harm” if he did not comply with orders.

Taking all well-pleaded allegations as true and construing them

liberally, as we must, McKnight v. Canulette, 190 F.3d 538, 1999 WL 642844,

at *1 (5th Cir. 1999) (per curiam) (unpublished), Epley alleges that his

injuries were so apparent that his need for care was obvious. But he only

alleges two patent signs of the extent of his injuries—he could barely walk

and had several visible bruises. Taken together, these allegations are not

sufficient to establish that Epley had a “serious medical need” that was “so

apparent that even laymen would recognize that care is required.” Gobert,

463 F.3d at 345 n.12. Bruises and strained walking are not the kind of acute

medical conditions that would signal to a layman that immediate medical

attention is required. See, e.g., Little v. Spears, 55 F.3d 632, 1995 WL 313938,

at *2 (5th Cir. 1995) (per curiam) (unpublished) (holding there was “no

showing of deliberate indifference” where plaintiff alleged prison officials

should have noticed he needed care because he had “multiple cuts and

bruises”). The complaint therefore does not plausibly allege that Sergeant

Lopez acted with deliberate indifference to Epley’s serious medical needs.

b

Epley alleges that Blue noticed visible signs of Epley’s injuries while

dispensing medication to prisoners in Abilene. Blue told Epley she would

“file a notice to have [him] brought to the infirmary for treatments[,]” but

Epley “was never taken to the infirmary.” “Blue denied any medical

assistance,” he claims, “regardless of the fact that she may have initially

wanted [Epley] to be provided with medical care.” Epley’s allegations do not

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establish that Blue acted with deliberate indifference. The facts alleged show

only that Blue wanted to get Epley help, but that he never received that help.

As with Sergeant Lopez, Epley did not allege any facts establishing that Blue

deliberately disregarded Epley’s serious medical need.

2

Epley alleges that Appellees violated his Fourteenth Amendment

rights to due process and equal protection.

Epley did not allege any facts supporting his due process claim. He

merely included it in a list of constitutional provisions Appellees allegedly

violated. His questionnaire responses indicate that he intended to plead only

an equal protection claim, not a due process claim. He also did not allege facts

establishing his equal protection claim. An equal protection claim requires a

plaintiff to demonstrate that he has been treated differently than other

individuals who are similarly situated. See, e.g., Taylor v. Johnson, 257 F.3d

470, 473 (5th Cir. 2001) (per curiam) (noting a plaintiff asserting an equal

protection claim “must allege and prove that he received treatment different

from that received by similarly situated individuals”). Epley does not allege

that any similarly situated comparators were treated differently.

3

Epley alleges that Appellees violated his First Amendment rights by

engaging in “[r]etaliation for having reported the misuse of force and for

having sought much-needed medical and physical treatments.”

“Prison officials may not retaliate against prisoners for exercising

their constitutional rights, including their First Amendment right to file

grievances.” Petzold v. Rostollan, 946 F.3d 242, 252 (5th Cir. 2019) (cleaned

up) (quoting Butts v. Martin, 877 F.3d 571, 588 (5th Cir. 2017)). To plead a

retaliation claim, Epley must establish (1) that he exercised a specific

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constitutional right, (2) that Appellees intended to retaliate against Epley for

his exercise of that right, (3) that Appellees took retaliatory adverse action

against Epley, and (4) causation. Butts, 877 F.3d at 588 (quoting Bibbs v.

Early, 541 F.3d 267, 270 (5th Cir. 2008)). “This places a significant burden

on the inmate.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

As discussed, Epley has not plausibly alleged that Appellees

deliberately disregarded his serious need for medical treatment, so he has not

adequately alleged retaliatory adverse action. He has also not pleaded facts

establishing that any objectionable conduct by Appellees was caused by his

exercise of his First Amendment rights. Notably, Epley does not allege that

Appellees even knew about his reports regarding the use of force.

B

Epley also challenges the dismissal of his failure-to-accommodate

claims under the ADA and the Rehabilitation Act.

To make out a prima facie case under the ADA or the Rehabilitation

Act, 5 a plaintiff must show:

(1) that he is a qualified individual within the meaning of the

ADA; (2) that he is being excluded from participation in, or

being denied benefits of, services, programs, or activities for

which the public entity is responsible, or is otherwise being

discriminated against by the public entity; and (3) that such

_____________________

5

“The [Rehabilitation Act] and the ADA are judged under the same legal

standards, and the same remedies are available under both Acts.” Back v. TDCJ Inst. Div.,

684 F. App’x 356, 358 (5th Cir. 2017) (per curiam) (unpublished) (quoting Kemp v. Holder,

610 F.3d 231, 234 (5th Cir. 2010)).

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exclusion, denial of benefits, or discrimination is by reason of

his disability.

Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004). The

third prong can be satisfied by demonstrating that the public entity failed to

provide reasonable accommodations for the plaintiff’s disabilities. Valentine

v. Collier, 993 F.3d 270, 290 (5th Cir. 2021) (citing Windham v. Harris

County, 875 F.3d 229, 235 (5th Cir. 2017)).

Epley alleges that he is a qualified individual by reason of (1) his

psychological disabilities—namely, his documented history of symptoms

associated with a TBI and PTSD; and (2) his physical injuries sustained while

in Lubbock, which left him “[even] more disabled.”

1

The first prong is “not a demanding question.” Epley v. Gonzalez, 860

F. App’x 310, 312–13 (5th Cir. 2021) (per curiam) (unpublished) (citing 42

U.S.C. § 12102(4)(A)). “A qualifying disability under the ADA is either (1) a

physical or mental impairment that substantially limits one [or] more of the

major life activities of the individual; (2) a record of such an impairment; or

(3) being regarded as having such an impairment.” Id. at 313 (internal

quotation marks omitted) (quoting 42 U.S.C. § 12102(2)). Under the ADA,

“major life activities” include walking, standing, concentrating, and

thinking. 42 U.S.C. § 12101(2)(A).

In Gonzalez, we held that Epley had adequately shown that he was a

qualified individual under the ADA because he alleged facts that

“demonstrate that his PTSD and TBI substantially limit his ability to think

and sleep.” 860 F. App’x at 313. We also held that he had presented “a

record of such an impairment” based on TDCJ’s provision of a single-cell

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designation for many years. Id. at 313–14. Epley has likewise adequately made

that showing here.

Epley also alleges that his physical ailments caused by the attack in

Lubbock constitute a disability for purposes of the ADA. Even a temporary

injury can qualify as a disability where the injury substantially impacts the

plaintiff’s major life activities. See, e.g., Cadena v. El Paso County, 946 F.3d

717, 724 (5th Cir. 2020) (holding that a prisoner’s broken leg was a qualifying

disability where it limited her mobility).

Epley’s physical injuries may have been temporary, but he alleges that

they inhibited his mobility and prevented him from accessing the food and

medication trays in his cell and using the toilet. Contrary to the district

court’s finding, he has plausibly alleged that his injuries substantially limited

his ability to engage in major life activities and constituted a qualifying

disability under the ADA.

2

The second and third prongs require a plaintiff to show that he was

discriminated against by reason of his disability. Melton, 391 F.3d at 671–72.

As noted, a plaintiff can satisfy this requirement by demonstrating that the

defendant failed to accommodate the plaintiff’s disabilities. Valentine, 993

F.3d at 290. To succeed on such a claim, “a plaintiff must show that the

entity knew of the disability and its consequential limitations, either because

the plaintiff requested an accommodation or because the nature of the

limitation was open and obvious.” Cadena, 946 F.3d at 723–24. “To satisfy

the knowledge requirement, the entity must understand the limitations a

plaintiff experienced as a result of his disability.” Valentine, 993 F.3d at 290

(emphasis in original).

In Gonzalez, this court held that Epley had adequately alleged “that

the [Lubbock] officials knew of his disabilities and the accommodation

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No. 23-10374

provided to him based on them, and yet denied him the benefit of safe prison

housing and appropriate transportation by ignoring the restrictions entirely.”

860 F. App’x at 314. Here, however, he does not plead that Appellees were

the ones who disregarded his single-cell medical designation or placed him in

a stress position on the transport bus. They placed him in a single-occupancy

cell. Accordingly, he did not adequately allege a failure to accommodate his

disabilities by ignoring his single-cell designation or inappropriately

transporting him in a prison bus.

Epley also alleges that Appellees failed to accommodate his disabilities

by neglecting to move him from a single-occupancy cell to an in-patient bed

in the Abilene infirmary. He claims that the bedding he was provided was

inadequate and that a medical bed in the infirmary would have allowed him

to access food, medications, and the toilet more easily and without causing

additional pain. These allegations of inadequate accommodations are based

solely on the pain and lack of mobility caused by his physical injuries. But as

discussed in the context of Epley’s Eighth Amendment claim, he has not

pleaded enough facts to show that the extent of his physical injuries and the

“consequential limitations” caused by them, Cadena, 946 F.3d at 724, were

obvious to laymen like Appellees. He did not adequately allege that Appellees

were able to “understand the limitations [Epley] experienced as a result of

his disability.” Valentine, 993 F.3d at 290 (emphasis omitted). He therefore

did not make out a prima facie failure-to-accommodate claim under the ADA

or the Rehabilitation Act.

V

Epley objects to the Abilene Division’s dismissal of his state law

claims for lack of subject-matter jurisdiction, contending that it had diversity

jurisdiction over those claims.

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We review a district court’s conclusion that it lacked subject-matter

jurisdiction over certain claims de novo. Stiftung v. Plains Mktg., L.P., 603 F.3d

295, 297 (5th Cir. 2010). “Jurisdictional findings of fact are reviewed for clear

error.” Id. (citing Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.

2005)). A court has subject-matter jurisdiction to hear a case or controversy

where the amount in controversy exceeds $75,000 and the parties are

completely diverse—meaning they are not citizens of the same state. 28

U.S.C. § 1332(a). Whether a court has subject-matter jurisdiction is

determined at the time suit is filed. Double Eagle Energy Servs., L.L.C. v.

MarkWest Utica EMG, L.L.C., 936 F.3d 260, 263 (5th Cir. 2019) (quoting

Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004)). “The

party asserting jurisdiction has the burden of establishing it.” McMahon v.

Fenves, 946 F.3d 266, 270 (5th Cir. 2020).

Parties are diverse if they are not domiciled in the same state. See

Acridge v. Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 447–48

(5th Cir. 2003). To establish domicile, “the person must demonstrate both

(1) residence in a new state and (2) an intention to remain in that state

indefinitely.” Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d

793, 801 (5th Cir. 2007) (citing Coury v. Prot, 85 F.3d 244, 250 (5th Cir.

1996)). “Residence alone is not the equivalent of citizenship, although the

place of residence is prima facie the domicile . . . .” Stine v. Moore, 213 F.2d

446, 448 (5th Cir. 1954). “[W]hen jurisdiction depends upon diverse

citizenship, the absence of sufficient averments, or of facts in the record,

showing such required diversity of citizenship, is fatal, and cannot be

overlooked by the court . . . .” Knight v. Lutcher & Moore Lumber Co., 136 F.

404, 405 (5th Cir. 1905).

Epley’s second amended complaint alleged that he “is a citizen of

France who resides in France.” The district court found that Epley was a

citizen of Texas prior to his incarceration. Relying on the presumption of

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continuing domicile, see Preston, 485 F.3d at 799, it held that he had not

rebutted the presumption that he remained a Texas citizen at the time he

filed suit.

Epley does not argue that the district court’s conclusion that he was a

citizen of Texas prior to his incarceration was clearly erroneous. His

allegations regarding his French citizenship are conclusory and insufficient

to overcome the presumption that he was a citizen of Texas at the time he

filed suit and to establish that he is a citizen of France. He also failed to allege

the citizenship of the defendants. He did not satisfy his burden of establishing

all facts supporting the court’s jurisdiction in his complaint. See McMahon,

946 F.3d at 270. That “[f]ailure adequately to allege the basis for diversity

jurisdiction mandates dismissal.” Stafford v. Mobil Oil Corp., 945 F.2d 803,

805 (5th Cir. 1991). The district court correctly dismissed his state law claims

for lack of subject-matter jurisdiction.

VI

Epley complains that the Abilene Division did not provide him

sufficient time to respond to the second questionnaire, and that it should have

provided him counsel to help him prepare his responses because it knew

about his disabilities.

We review the handling of a motion for additional time to respond to

a questionnaire for abuse of discretion. Boudreaux v. Doe, 68 F.3d 465, 1995

WL 581493, at *1 (5th Cir. 1995) (per curiam) (unpublished). We likewise

review the denial of a motion to appoint counsel for abuse of discretion.

Jackson v. Dall. Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).

Epley sought and received additional time to respond to the second

questionnaire, which evinced his knowledge of applicable procedures, and he

filed his responses to some of the questions by the extended deadline.

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Moreover, Epley had previously demonstrated his ability to respond to the

first questionnaire. He has not shown an abuse of discretion.

VII

Finally, Epley asks that the Abilene Division be directed to appoint

counsel on remand. Because we conclude that remand is inappropriate, this

request is moot.

* * *

We AFFIRM the judgment of the district court in full.

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James E. Graves, Jr., Circuit Judge, dissenting:

Charles Epley appeals the district court’s dismissal of his claims filed

pursuant to 42 U.S.C. § 1983 and various other federal and state laws and

challenges the sua sponte order severing and transferring some of his claims.

Because I would vacate and remand, I respectfully dissent.

Epley is a disabled former prisoner who was incarcerated within the

Texas Department of Criminal Justice (TDCJ) for some 28 years. As a result

of a previous attack in 1994, Epley suffers from Post-Traumatic Stress

Disorder (PTSD) and Traumatic Brain Injury and was granted a “single-cell

restriction” to be housed alone. In 2016, authorities attempted to move

Epley from his single-occupant cell to another cell with three other inmates

at the John Montford Unit (Montford), TDCJ’s psychiatric prison in

Lubbock, Texas. The incident triggered severe PTSD symptoms which

prevented him from entering the cell. Epley said he asked for a psychiatrist

or doctor, but was instead ordered to remove his clothing, placed in an empty

room, pepper sprayed and brutally assaulted by guards. As a result of the

incident, Epley asserts that he suffered broken ribs, a broken nose, a

concussion, and various other injuries, for which he was denied adequate

medical care. Epley said he was then handcuffed and returned to the multi-

occupancy cell before being transported in handcuffs some 170 miles via

prison bus to the Robertson Unit near Abilene. A few days later, Epley was

transferred some 275 miles to the Lynaugh Unit near Pecos. Epley asserts

that the various TDCJ officials and employees with all three units conspired

to violate his rights, deny him disability accommodations and medical care

for his injuries, and retaliate against him for reporting the incident at

Montford.

Following his release from prison in 2018, Epley filed a civil rights

complaint in the Dallas Division of the Northern District of Texas against

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several defendants, including TDCJ staff members from the Montford,

Robertson and Lynaugh units, asserting claims under federal and state law.

Epley v. Montford, No. 3:18-CV-1243. On June 4, 2018, a Dallas Division

magistrate judge (MJ) entered an order sua sponte transferring Epley’s case

to the Lubbock Division under 28 U.S.C. § 1404(a). On August 15, 2018, the

Lubbock MJ entered an order sua sponte severing all claims against any staff

from the Robertson or Lynaugh units and transferring those claims to the

Abilene Division of the Northern District of Texas and the Pecos Division of

the Western District of Texas, respectively, under 28 U.S.C. § 1406(a). The

majority concedes that the claims were transferred pursuant to 28 U.S.C.

§ 1406(a).

Epley subsequently filed amended complaints in the Lubbock,

Abilene, and Pecos courts. The Lubbock court retained and subsequently

dismissed the Montford claims as frivolous for failure to state a claim. Epley

v. Gonzalez, No. 5:18-CV-0142, 2019 WL 2579231 (N.D. Tex. June 24, 2019).

This court reversed and remanded on Epley’s claims under the Americans

with Disabilities Act and § 504 of the Rehabilitation Act. Epley v. Gonzalez,

860 F. App’x 310, 311-15 (5th Cir. 2021). The remanded case remains

pending on the Lubbock docket, and Epley has now been appointed counsel.

The Pecos court granted summary judgment to the defendants on

Epley’s claims, and this court affirmed. Epley v. Itie, No. 4:18-CV-34, 2021

WL 11959969 (W.D. Tex. Apr. 17, 2021), 2021 WL 2657288 (W.D. Tex. May

28, 2021), aff’d, No. 21-50574, 2024 WL 864304, 1-2 (5th Cir. Feb. 29,

2024). In that appeal, this court declined to consider Epley’s challenge to

the venue transfer order because Epley did not seek mandamus after the

severance and transfer occurred. Id. at n. 1. In doing so, this court cited

Defense Distributed v. Bruck, 30 F.4th 414, 423, 426 n.13 (5th Cir. 2022),

which states that “in this circuit, mandamus is the prescribed vehicle for

reviewing rulings of transfers of cases pursuant to 28 U.S.C. § 1404(a).” Id.

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at 423. However, the Lubbock court did not transfer the case pursuant to 28

U.S.C. § 1404(a); it severed and transferred under 28 U.S.C. § 1406(a). The

Supreme Court has held that mandamus is not the appropriate remedy to

vacate an order to sever and transfer under § 1406(a). See Bankers Life & Cas.

Co. v. Holland, 346 U.S. 379, 382-83 (1953). Instead, such an order is

reviewable on appeal from the final judgment. Id. Thus, the discretionary

law of the case doctrine clearly does not apply.

The majority concludes that “Itie appears to have implicitly found that

the Lubbock Division transferred Epley’s claims under § 1404(a).”

(Emphasis added). I disagree for several reasons, as discussed herein. As an

initial matter, the applicable footnote in the Itie summary affirmance provides

no basis or authority for amending the explicit language of the district court’s

transfer orders. 1 Itie, 2024 WL 864304, *1 at n. 1. I also disagree with the

majority’s conclusion that there is “no reason to reach a different result.”

The majority says that this is so because, although the Lubbock MJ’s initial

transfer order explicitly relied on § 1406(a), the MJ “implicitly acknowledged

that it had cited § 1406(a) in error” on reconsideration. (Emphasis added).

The majority then states, “[a]nd Epley expressly challenges the § 1404(a)

analysis—he does not expressly mention § 1406(a). . . . We agree with Itie that

Bruck required Epley to seek mandamus after the § 1404(a) transfer, and we

likewise decline to consider his arguments.” (Emphasis added).

The majority’s conclusion is belied by the record, unsupported by any

authority, and expressly erroneous. The transfer orders did not merely

_____________________

1

The majority also cites Trans World Airlines, Inc. v. Morales, 949 F.2d 141, 144

(5th Cir. 1999) for the proposition that the law of the case doctrine is more likely to apply

“when the prior opinion was apparently well-considered.” To the extent that the majority

is attempting to suggest that a vague footnote in a summary affirmance “was apparently

well-considered,” I disagree.

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No. 23-10374

“appear to rely on § 1406(a).” The orders explicitly relied on § 1406(a), as

even the majority concedes. The MJ entered two orders on August 15, 2018,

which said the following:

Because “a substantial part of the events or omissions giving

rise” to these claims occurred in the Abilene Division and

Western District of Texas, Epley has filed his claims against

these Defendants in the wrong division and/or district, thereby

permitting this court to transfer such claims to a court where

they “could have been brought.” See §§ 1391(b), 1406(a).”

The MJ then ordered that all claims against the Robertson defendants “shall

be severed from the instant Amended Complaint and transferred to the

United States District Court for the Northern District of Texas, Abilene

Division, in accordance with 28 U.S.C. § 1406(a).” (Emphasis added). That

new case was opened in Abilene on August 15, 2018. Further, the Lubbock

MJ ordered that all claims against the Lynaugh defendants “shall be severed

from the instant Amended Complaint and transferred to the United States

District Court for the Western District of Texas, Pecos Division, in

accordance with 28 U.S.C. § 1406(a).” (Emphasis added). That portion of the

case was electronically transferred to the Western District of Texas on

August 15, 2018.

Epley objected to the transfer orders and sought reconsideration on

September 10, 2018. The Lubbock MJ denied reconsideration by order

entered September 28, 2018, some six weeks after the claims had been

severed and transferred. The order, which also disposed of various other

motions, offered two paragraphs on the severance and transfer, and included

a citation to 28 U.S.C. § 1404(a). The majority now relies on that single

citation to apparently conclude that the order denying reconsideration

somehow amends or overrules the transfer orders. But the majority fails to

explain how that would even be so. Not only did the order denying

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reconsideration say nothing to indicate that it was intended to amend or

overrule the transfer orders, but the MJ lacked jurisdiction to even enter such

an order. Once the Lubbock court transferred the severed claims, it no longer

had jurisdiction over those claims. See Def. Distributed v. Platkin, 55 F.4th

486, 492-93 (5th Cir. 2022); see also In re Plumbing Fixture Cases, 298 F. Supp.

484, 495-96 (J.P.M.L. 1968); In re Sw. Mobile Homes, 317 F.2d 65, 66 (5th Cir.

1963); In re Space Expl. Techs., Corp., No. 24-40103, 2024 WL 982501, **1-2

(5th Cir. Feb. 26, 2024) (unpublished). Thus, the Lubbock court’s order on

reconsideration has no effect. Likewise, the majority fails to cite any

applicable authority for its claim that a transferor court maintains

simultaneous jurisdiction over claims that it severs and transfers to another

court, or that an order denying reconsideration on claims that were severed,

transferred, and received by the transferee court six weeks prior somehow

overrules or amends the reason they were transferred, and it fails to

distinguish the applicable authority to the contrary.

The majority also maintains that Epley’s citation of § 1404(a)

somehow confirms its conclusion regarding what Itie “appears to have

implicitly found.” Epley’s mention of § 1404(a) in an attempt to cover his

bases as a result of the MJ’s erroneous citation in the order denying

reconsideration in no way changes the orders transferring the claims under §

1406(a). Regardless, Epley explicitly argues on appeal that the Lubbock court

erred by severing and transferring his claims, which was done under §

1406(a), and asserts that “the severance and transfer here were improper

under both analyses.” (Emphasis added). Epley also provides citation to his

argument regarding § 1406(a) in the supplemental brief filed by counsel in

Itie. Moreover, Epley clearly explains that the district court offered only a

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No. 23-10374

pro forma § 1404(a) analysis on reconsideration, hence his mention of

§ 1404(a). 2

The present appeal concerns the claims that were severed and

transferred to the Abilene Division, and subsequently dismissed. Epley v.

Lopez, No. 1:18-CV-115, 2023 WL 2481607 (N.D. Tex. March 13, 2023).

Epley appeals the district court’s dismissal of all of his claims, and he

challenges the severance and transfer of his claims under 28 U.S.C. §

1406(a). Epley asserts that the sua sponte severance and transfer of his

claims from the Lubbock Division to the Abilene Division was erroneous

under 28 U.S.C. § 1406(a) and 1391(b).

This court reviews questions of venue for an abuse of discretion.

United States v. Real Property Known as 200 Acres of Land Near FM 2686 Rio

Grande City, Tex., 773 F.3d 654, 657 (5th Cir. 2014).

Venue under 42 U.S.C. § 1983 is determined by the general venue

provision found in 28 U.S.C. § 1391(b), which states:

A civil action may be brought in--

(1) a judicial district in which any defendant resides, if

all defendants are residents of the State in which the district is

located;

(2) a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is

situated; or

(3) if there is no district in which an action may

otherwise be brought as provided in this section, any judicial

district in which any defendant is subject to the court’s

personal jurisdiction with respect to such action.

_____________________

2

Epley correctly refers to that analysis as “scant.”

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No. 23-10374

28 U.S.C. § 1391(b).

Epley asserts that the Lubbock Division was a proper venue under

§ 1391(b)(1) because numerous defendants lived in that division and all of the

defendants were Texas residents. Epley also asserts that venue was proper

in Lubbock under 1391(b)(2) because a substantial part of the events or

omissions giving rise to his Robertson Unit claims occurred there. Further,

Epley asserts that the defendants from all three units conspired and colluded.

Moreover, Lubbock was not the wrong district or division, as required

for a transfer under § 1406(a), which states: “[t]he district court of a district

in which is filed a case laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer such case to any district

or division in which it could have been brought.” 28 U.S.C. § 1406(a).

Whether venue is “wrong” or “improper” depends exclusively on whether

the court in which the case was brought satisfies the requirements of 28

U.S.C. §§ 1391(b). Lubbock clearly does.

This court has previously addressed a similar case. In Holloway v.

Gunnell, 685 F.2d 150, 152-53 (5th Cir. 1982), this court reversed a district

court’s determination of improper venue under § 1406(a) because venue

could be proper in more than one district. Id. at 153. The court also

concluded that the burden was not on the plaintiff to show that venue was

proper in the complaint; the defendant has the burden to object. Id.

Moreover, “[s]ince the district court has not yet required the defendants to

answer, it would be inappropriate for the court to anticipate a venue problem

under the general venue statutes.” Id.

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In Thunderhorse v. Lynaugh, No. 93-5568, 1994 WL 574715, * 6 (5th

Cir. Oct. 12, 1994) 3, this court reiterated that § 1406(a) only applies to a case

brought in the wrong district or division, the burden is on the defendant to

establish improper venue, and it is error “to anticipate a venue problem

under [28 U.S.C. § 1391(b)]” and transfer claims under § 1406(a). Id. at 6-7

(quoting Holloway, 685 F.3d at 153).

Here, the Lubbock MJ prematurely ordered that some of Epley’s

claims be severed and transferred without any showing that venue was

improper in the Lubbock Division or even allowing service of process on the

defendants. ECF 5:18-CV-142, 27. This was an abuse of discretion.

For these reasons, I would vacate the Lubbock MJ’s order severing all

claims against any staff from the Robertson unit and transferring those claims

to the Abilene Division of the Northern District of Texas under 28 U.S.C.

§ 1406(a). ECF TXND 5:18-CV-142, 24. I would also vacate the Abilene

District Court’s judgment dismissing Epley’s claims, and remand Epley’s

claims to the Lubbock Division of the Northern District of Texas to be

considered with his remaining claims in 5:18-CV-142 and the benefit of

counsel. Thus, I respectfully dissent.

_____________________

3

Though this decision was unpublished, it remains precedential under 5th Cir. R.

47.5.3.

29

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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