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.
Case: 23-10374 Document: 77-1 Page: 2 Date Filed: 04/21/2025
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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No. 23-10374
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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No. 23-10374
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.
7
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No. 23-10374
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).
8
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No. 23-10374
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.
10
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No. 23-10374
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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No. 23-10374
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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No. 23-10374
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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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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“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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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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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