The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
CORRY GARCIA, §
Institutional ID No. 2365886 §
§
Plaintiff, §
§ Civil Action No. 1:23-CV-00140-BU
v. §
§
PATRICK L. O’DANIEL, et al., §
§
Defendants. §
§
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff CORRY GARCIA, an inmate at TDCJ Robertson Unit, brings this action
against Defendants Patrick L. O’Daniel, Garth Parker, Bryan Collier, Justin Taylor, Bobby
Lumpkin, and Carly Kim (collectively, “the Defendants”), alleging that they violated his
constitutional rights. Garcia’s claims are subject to judicial screening under 28 U.S.C.
§§ 1915, 1915A because he has been granted leave to proceed in forma pauperis, Dkt.
No. 15, and sues government officials, see Dkt. No. 12. For the reasons below, the under-
signed recommends that the Court DISMISS each of Garcia’s claims without prejudice.
I. JURISDICTION
Garcia brings his claims under 42 U.S.C. § 1983, providing the Court with subject-
matter jurisdiction under 28 U.S.C. § 1331. Dkt. No. 12. Venue is proper in the Northern
District of Texas, Abilene Division, because Garcia’s claims arise from his incarceration
at Robertson Unit located in Jones County, Texas. 28 U.S.C. § 1391(b)(2). The
undersigned has the authority to enter these Findings, Conclusions, and Recommendations
after United States District Court Judge James Wesley Hendrix transferred Garcia’s case to
the undersigned for preliminary screening. Dkt. No. 18; 28 U.S.C. § 636(c)(1). Garcia has
not consented to the undersigned exercising the full jurisdiction of this Court.
II. FACTUAL BACKGROUND
For purposes of screening a plaintiff’s complaint under 28 U.S.C. §§ 1915(e)(2)(B)
or 1915A, a court must accept well-pleaded factual allegations as true and view them in
the light most favorable to the plaintiff. Alderson v. Concordia Par. Corr. Facility, 848 F.3d
415, 419 (5th Cir. 2017). A court may look to the plaintiff’s allegations in their complaint,
responses to a questionnaire, authenticated prison or jail records, and testimony provided
at a Spears hearing. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999); see also Banue-
los v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (holding that courts may consider au-
thenticated medical and prison records).
A. Factual Allegations
Garcia arrived at the TDCJ Robertson Unit in February 2022, where he has remained
incarcerated since. Dkt. No. 17 at 2. Garcia alleges that the food provided has been inade-
quate for the duration of his time at the Robertson Unit. Id. Specifically, Garcia alleges that
TDCJ food service is systemically deficient in the following ways: (1) TDCJ meals do not
provide an adequate number of calories and (2) TDCJ meals do not include an adequate
variety of food groups to provide necessary nutrients.
1. Insufficient Calories
Garcia alleges that, on average, meals served in TDCJ provide 1200–1600 calories
a day. Dkt. No. 17 at 2. For example, Garcia provided a caloric breakdown of all the food
he was provided on January 25, 2023. Id. For lunch he was provided: a slice of salami
(140 calories), mix of veggies (40 calories), mashed potatoes (110 calories), beans (160
calories), and cornbread (140 calories). This totaled 590 calories. For dinner he was pro-
vided: bologna (120 calories), sweet potatoes (100 calories), black beans (160 calories),
and cornbread (140 calories). This totaled 520 calories. Therefore, on that specific day,
Garcia was provided with 1,110 calories. Furthermore, whenever a typical lunch or dinner
is replaced with a “Jhonny meal”, the Jhonny will either consist of a peanut-butter and jelly
(PBJ) sandwich (269 calories) or a bologna or salami sandwich (260 calories). Id.
Low calorie counts are further exacerbated by the TDCJ practice of watering down
meals. Garcia alleges that “upon information and belief,” five of the Defendants “have
adopted a policy or practice of limiting the amount of food items distributed to each unit”
and that this practice resulted in the need to “water down the food to make it stretch.” Dkt.
No. 12 at 5. Because of this, the most common foods served to inmates—such as stew,
gravy, chili, sloppy joes, and pot pies—are often 50% water. Id.
2. Inadequate Variety and Nutrition
Garcia also alleges that meals served at TDCJ do not contain enough food groups to
preserve inmate health. In particular, TDCJ meals lack sufficient fresh fruit and vegetables,
citrus fruits and juices, unprocessed meat protein, whole grains, seeds and nuts, dairy prod-
ucts, and probiotics. Dkt. No. 12 at 6. As a result, the TDCJ diet is deficient in calories,
meat protein, calcium, iron, magnesium, probiotics, vitamin D, vitamin C, and Zinc. Id.
Garcia claims that the typical TDCJ diet instead consists mostly of starch and carbs. Dkt.
No. 17 at 2.
3. Health Consequences
As a result of being denied nutritious and well-balanced meals, Garcia alleges that
he is at a substantial risk of future harm including becoming sicker and suffering premature
death. Garcia takes a blood thinner called Coumadin, and the doctor that prescribed it di-
rected Garcia to eat healthily, which is impossible due to TDCJ’s diet. Dkt. No. 17 at 3.
The unhealthy diet “messes with” his medication by fluctuating his blood thinner. Id. Gar-
cia then clarified that this lawsuit is not about current or past injuries but is about the gen-
eral risks that an older and unhealthy man faces when forced to endure TDCJ’s unhealthy
diet for a prolonged period of time. Id.
B. Alleged Defendant Misconduct
Based on the above, Garcia alleges particular acts of misconduct against each De-
fendant. First, Garcia alleges that Defendant Kim “created the outdated menu.” Dkt. No.
12 at 5. He further alleges that, as the creator of the menu, Kim is aware that it consists
largely of “starchy and carby food,” yet has refused to take any meaningful action to update
the menu to a constitutionally adequate level. Id.
Second, Garcia alleges that Defendant Parker did nothing to address the deficient
TDCJ meal plan, despite being aware that the meal plan provided insufficient nutrition. On
March 7, 2023, Parker admitted in an interview on “The Tank” that they were “serving a
1970s, 1980s menu” and that they served “a lot of starchy and carby food,” while also
expressing concern about the “health of individuals that . . . eat the food we have.”1 Id. at
5. Despite these statements, food quality did not improve.
Third, Garcia alleges that “upon information and belief, Defendants O’Daniel, Col-
lier, Lumpkin, Parker, and Taylor have adopted a policy or practice of limiting the amount
of food items distributed to each unit.” Id. This practice has forced the unit administrators
to: (1) drastically limit the amount and variety of food served and (2) water down the food
to make it stretch. Id.
Lastly, Garcia alleges that all six Defendants “are the only state officials who have
direct control or influence over the content of TDCJ diets and feeding practices.” Id. at 7.
He further generally alleges that all Defendants are aware of the calorically and nutrition-
ally inadequate diet but have taken no actions to improve it. Id.
III. THE PARTIES
Garcia filed his initial suit with nine co-plaintiffs on March 16, 2023, asserting
claims against 14 high-ranking TDCJ officials.2 Dkt. Nos. 1 at 1–2; 2 at 30–32. The com-
plaints by the co-plaintiffs were severed, and Garcia filed an amended complaint against
six of the original Defendants in their official capacities3: (1) TBCJ Chairperson O’Daniel,
1 The Court takes judicial notice that “The Tank” is the first radio station that launched inside a TDCJ
facility, beginning in 2020. See https://www.tdcj.texas.gov/connections/-articles/2024/20240600.12_Ra-
dio_Redemption.html (last visited April 8, 2026).
2 See Panus et al v. Collier et al, No. 1:23-cv-00086-H-BU (N.D. Tex. March 16, 2023) [Dkt. No. 1]. The
class action was then transferred from the Western District of Texas to the Northern District of Texas on
April 25, 2023. Id. at Dkt. Nos. 5; 6.
3 Garcia does not specify whether he sues Defendants in their individual capacities, official capacities, or
both. However, because he seeks only injunctive relief against state officials for an alleged ongoing viola-
tion of federal law, he must sue the officials in their official capacities, not their personal capacities, as
explained below in the discussion of the Ex Parte Young exception to Eleventh Amendment immunity.
(2) TDCJ Executive Director Collier, (3) TDCJ-CID Director Lumpkin, (4) TDCJ-LFS Di-
vision Director Parker, (5) TDCJ-LFS Operations Manager Taylor, and (6) Senior Dietician
Kim. Dkt. No. 12. Garcia has further supplemented his claims through his response to the
Court’s questionnaire. Dkt. No. 17.
Since filing his Complaint, some of these Defendants no longer hold the position
sued. Because Garcia sues Defendants only in their official capacities, it is appropriate to
substitute the original Defendants with the individuals who now hold their positions. Thus,
the Court substitutes the current holders of these positions as follows:
• Eric Nichols, current Chairman of the Texas Board of Criminal Justice, replaces
former Chairman Patrick L. O’Daniel;
• Eric Guerrero, current TDCJ-CID Director, replaces former CID Director
Bobby Lumpkin;
• Bobby Lumpkin, current TDCJ Executive Director and former TDCJ-CID Di-
rector, replaces former Executive Director Bryan Collier;
• David Driskell, current TDCJ-LFS Division Director, replaces former LFS Di-
vision Director Garth Parker; and
• Darlene Trejo, current TDCJ-LFS Operations Manager, replaces former Oper-
ations Manager Justin Taylor.
See Fed. R. Civ. P. 25(d). The Clerk is directed to conform the docket to reflect these
substitutions.
The Court construes Garcia’s pleadings as alleging the following acts of misconduct
by Defendants: (1) endorsing or failing to address the practice of serving calorically and
nutritionally deficient meals; and (2) negligent failure to remain informed about deficien-
cies in meals served at TDCJ units.
IV. LEGAL STANDARDS
A court must dismiss a complaint filed in forma pauperis or filed by a prisoner
against a government entity or employee if the court determines the complaint is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B);
1915A(b) (applying section to any suit by a prisoner against certain governmental entities,
regardless of whether the prisoner is proceeding in forma pauperis).
A frivolous complaint lacks any arguable basis, either in fact or in law, for the wrong
alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable basis
in fact if it rests upon clearly baseless factual contentions, and similarly, it lacks an arguable
basis in law if it contains indisputably meritless legal theories. See id. at 327; Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Dismissal for failure to state a claim—whether under Section 1915(e)(2)(B)(ii), Sec-
tion 1915A(b)(1), or Rule 12(b)(6)—“turns on the sufficiency of the ‘factual allegations’
in the complaint.” Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (per
curiam) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) (per curiam)). Thus, if
a plaintiff “plead[s] facts sufficient to show” that the claims asserted have “substantive
plausibility” by stating “simply, concisely, and directly events” that they contend entitle
them to relief, the claims should not be dismissed merely because the plaintiff fails to ar-
ticulate the proper legal theory that otherwise makes those facts actionable in court.
Johnson, 574 U.S. at 11–12 (citing Fed. R. Civ. P. 8(a)(2)–(3), (d)(1), (e)).
Courts accept well-pleaded factual allegations as true. Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 469 (5th Cir. 2016). This means the factual allegations, while not
required to be detailed, must amount to more than mere labels, conclusions, or a statement
of the legal elements of a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Chhim, 836 F.3d at 469.
For claims to be substantively plausible, a plaintiff need not establish that the
pleaded facts probably occurred as alleged, but the facts must allow the court “to infer more
than the mere possibility of misconduct.” Harold H. Huggins Realty, Inc. v. FNC, Inc.,
634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 678–679). Even pro se plain-
tiffs must plead facts that raise the right to relief above a speculative level. Chhim, 836 F.3d
at 469 (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)). And
when plaintiffs “have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.” Twombly, 550 U.S. at 570.
When evaluating a complaint under these standards, courts liberally construe the
pleadings of pro se plaintiffs, holding their complaints to “less stringent standards than
formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). But
“liberal construction does not require that the Court . . . create causes of action where there
are none.” Smith v. CVS Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 2291886, at *8
(N.D. Tex. May 23, 2013). “To demand otherwise would require the ‘courts to explore
exhaustively all potential claims of a pro se plaintiff’” and would “‘transform the district
court from its legitimate advisory role to the improper role of an advocate seeking out the
strongest arguments and most successful strategies for a party.’” Jones v. Mangrum,
No. 3:16-cv-3137, 2017 WL 712755, at *1 (M.D. Tenn. Feb. 23, 2017) (quoting Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
Ultimately, “‘[d]etermining whether a complaint states a plausible claim for relief’
is ‘a context-specific task that requires the reviewing court to draw on its judicial experi-
ence and common sense.’” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d
890, 899 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 679).
V. ANALYSIS
To state a claim under § 1983, Garcia must plausibly “allege facts showing that a
person, acting under color of state law, deprived him of a right, privilege or immunity se-
cured by the United States Constitution or the laws of the United States.” Bryant v. Mil.
Dept. of Miss., 597 F.3d 678, 686 (5th Cir. 2010). A convicted prisoner’s rights “spring
from the Eighth Amendment’s prohibition on cruel and unusual punishment” and, in ex-
treme situations, the substantive due process provision of the Fourteenth Amendment. Hare
v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (citing Estelle v. Gamble, 429
U.S. 97, 104 (1976). Each of Garcia’s allegations, except for his negligence claim, are
Eighth Amendment allegations based on alleged cruel and unusual punishment.
“The treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Gates v. Cook, 376 F.3d
323, 332 (5th Cir. 2004). “In order to establish an Eighth Amendment conditions of con-
finement claim, [a prisoner] would have to establish ‘first, that the deprivation alleged was
sufficiently serious . . . and second, that the prison official possessed a sufficiently culpable
state of mind.’” Burleson v. Texas Dep't of Crim. Just., 393 F.3d 577, 589 (5th Cir. 2004)
(quoting Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.2001)).
A prisoner must allege a sufficiently serious deprivation to prevail on their Eighth
Amendment claim. A deprivation is sufficiently serious if it objectively exposes the pris-
oner “to a substantial risk of serious harm” and causes “the denial of the minimal civilized
measure of life necessities.” Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (citing
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). That conditions are “restrictive or even
harsh” is not enough to demonstrate that they are sufficiently serious. Coleman v. Dallas
Cnty. Jail, No. 3:19-cv-3009-L-BN, 2020 WL 7029915, at *4 (N.D. Tex. October 22,
2020); see Carter v. Brown, No. 1:20-cv-01376, 2021 WL 1556374, at *2 (W.D. La. April
1, 2021).
The alleged violation must also be caused by a defendant with a sufficiently culpable
state of mind. “The requisite state of mind is whether ‘the official acted with deliberate
indifference to inmate health or safety.’” Burleson, 393 F.3d at 589. “To establish deliberate
indifference the [prisoner] must show that the officials ‘(1) were aware of facts from which
an inference of excessive risk to the prisoner's health or safety could be drawn and (2) that
they actually drew an inference that such potential for harm existed.’” Id. (internal citations
omitted). “The crucial question in determining an Eighth Amendment claim ‘is whether the
prison official, acting with deliberate indifference, exposed a prisoner to a sufficiently sub-
stantial risk of serious damage to his future health.’” Farmer v. Brennan, 511 U.S. 825, 843
(1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
Each of Garcia’s claims are brought against TDCJ officials in their official capacity.
Suits brought against a defendant in their official capacity are functionally brought against
the state itself. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, the
undersigned must first evaluate whether the Eleventh Amendment bars Garcia’s claims
against the TDCJ. Because many of Garcia’s claims are based on caloric or nutritional
deficiency, the undersigned will then analyze when a prison diet is constitutionally inade-
quate. Lastly, the undersigned will evaluate each of Garcia’s claims to determine whether
he has alleged a sufficiently serious deprivation of life’s necessities and the deliberate in-
difference of the relevant defendants.
A. Eleventh Amendment Bar and Ex parte Young Exception
Under the Eleventh Amendment, states are immune from suit in federal court. Quern
v. Jordan, 440 U.S. 332, 342 (1979); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326
(5th Cir. 2002) (“The Eleventh Amendment bars an individual from suing a state in federal
court unless the state consents to suit or Congress has clearly and validly abrogated the
state’s sovereign immunity.”). This immunity “encompasses not only actions in which a
State is actually named as the defendant, but also certain actions against state agents and
state instrumentalities.” Sw. Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 937 (5th
Cir.2001) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). As a
state instrumentality, TDCJ itself comes within the protections of Eleventh Amendment
immunity from suit.4 Because Defendants are officers within TDCJ being sued in their
4 See Cox v. Texas, 354 F. App’x 901, 902 (5th Cir. 2009) (“Under the current state of the law, the TDCJ is
deemed an instrumentality of the state operating as its alter ego in carrying out a public function of the state,
and is immune from suit under the Eleventh Amendment.”) (citing Harris v. Angelina County, Tex., 31 F.3d
331, 338 n. 7 (5th Cir.1994)); see also Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th
Cir.1998).
official capacity, each of Garcia’s claims are essentially suits against TDCJ, which is im-
mune to suit under the Eleventh Amendment. Will, 491 U.S. at 71.
But in Ex parte Young, the Supreme Court carved out an exception to Eleventh
Amendment immunity to allow suits seeking prospective relief against a state official in
their official capacity to prevent future constitutional or federal statutory violations. 209
U.S. 123 (1908); see Aguilar v. Tex. Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th
Cir.1998). The rationale underlying the Ex parte Young doctrine is that state officials who
violate federal law are not acting for the state, but instead as individuals, and the Eleventh
Amendment does not protect individuals. Ex parte Young, 209 U.S. at 159–60.
This rationale engages in somewhat of a fiction, in that any prospective relief or-
dered by a federal court against that individual would almost certainly impact the state
treasury, the protection of which is one of the central purposes of the Eleventh Amendment.
Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 48 (1994). But the Supreme Court has
sanctioned this fiction. Milliken v. Bradley, 433 U.S. 267, 289 (1977) (stating the Ex parte
Young exception “permits federal courts to enjoin state officials to conform their conduct
to requirements of federal law, notwithstanding a direct and substantial impact on the state
treasury.”).
The Ex parte Young exception applies when a complaint (1) seeks prospective relief
(2) for an ongoing violation of federal law (3) against officials who have some connection
with the alleged violation. Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir.
2022); Cantu Servs., Inc. v. Roberie, 535 Fed. Appx. 342, 344–45 (5th Cir. 2013). The third
prong ensures that, when Ex parte Young is invoked, “the proper defendant is a state official
acting in violation of federal law who has a ‘sufficient connection’ to enforcing an allegedly
unconstitutional law.” Valentine v. Collier, 993 F.3d 270, 280 (5th Cir. 2021).
Here, the first element of Ex parte Young is satisfied because Garcia seeks only
prospective relief; he requests that the court grant an injunction “ordering Defendants to
provide three wholesome and nutritional meals per day of adequate caloric quantity.” Dkt.
No. 12 at 4. The undersigned also assumes, for the purposes of screening, that each De-
fendant is sufficiently connected to the alleged violations to satisfy the third element of Ex
parte Young.5 The issue presented is whether Garcia alleges an ongoing violation of federal
law that satisfies the second element.
Garcia’s claims are based on alleged systemic violations of the Eighth Amendment,
and thus if properly alleged would satisfy the second Ex parte Young element. For each
claim, if Garcia alleges sufficient facts to plausibly plead the violation and deliberate in-
difference prongs of a conditions-of-confinement claim, then Garcia has also alleged an
ongoing violation of federal law that permits the claim to pass the Eleventh Amendment
bar. Conversely, any claims that are not sufficiently supported to survive judicial screening
are also barred by the Eleventh Amendment.
B. Constitutional Requirements for Inmate Diet
The primary basis of Garcia’s claims is that the TDCJ diet lacks sufficient calories
5 Garcia’s Complaint centers on alleged systemic food conditions experienced at TDCJ facilities. Parker
and Taylor are each sufficiently connected to these alleged violations because they oversee the TDCJ Laun-
dry, Food, and Supply division. Dkt. No. 12 at 3–5. Kim is also sufficiently connected because, as TDCJ’s
Senior Dietician, she allegedly has influence over the food that is served at TDCJ. Dkt. No. 12 at 3–. 5.
Lastly, O’Daniel, Collier, and Lumpkin are each high-ranking officials in TDCJ or TBCJ, and thus have
oversight over the other defendants. Dkt. No. 12 at 3–5.
and nutrients to sustain an adult. Dkt. No. 12 at 6–7. The Eighth Amendment requires
prison administrators to provide for an inmate’s basic needs, including reasonably adequate
food. Newman v. State of Ala., 559 F.2d 283, 291 (5th Cir. 1977). Most Fifth Circuit cases
that address prison food are brought by inmates who have been denied meals altogether,
rather than inmates receiving consistent but inadequate meals;6 however, the Constitution
undoubtedly protects inmates from both forms of starvation. George v. King, 837 F.2d 705,
707 (5th Cir. 1988) (“Certainly, the Constitution does not tolerate the administrative trans-
formance of a sentence of several years’ imprisonment to one of a gulag-type death by
incremental starvation.”). In order to apply existing case law to Garcia’s allegations, the
undersigned offers the following summary of Fifth Circuit precedent on prison meals.
Under the Eighth Amendment, the meals provided to prison inmates must be nutri-
tionally and calorically adequate. Green v. Ferrell, 801 F.2d 765, 770–71 (5th Cir. 1986).
However, no bright-line test exists for determining when a prison diet is inadequate. Prior
case law makes it clear that a prison diet is not inadequate merely because it does not satisfy
the standards set by prison policy, state agencies, or expert recommendations.7
It is also clear that courts cannot rely solely on the presence or absence of physical
6 See, e.g., Berry v. Brady, 192 F.3d 504 (5th Cir. 1999) (prisoner denied 8 meals); Talib v. Gilley, 138 F.3d
211 (5th Cir. 1998) (prisoner denied 50 meals); Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (prisoner denied
72 meals).
7 Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009) (“[A] prison official's failure to follow the prison's
own policies does not, itself, result in a constitutional violation.”); Balli v. Haynes, 804 F.2d 306, 308 (5th
Cir. 1986) (“[T]he violation of state standards does not per se violate the federal Constitution. State stand-
ards do not establish federal constitutional standards.”). Green, 801 F.2d at 771 (reversing order to comply
with “recognized daily requirements” because “[e]xpert recommendations do not create constitutional
standards under the eighth amendment”).
symptoms. Prior Fifth Circuit courts have based their holdings on the presence or absence
of symptoms,8 but actual injury cannot be a dispositive issue; Eighth Amendment case law
requires a prisoner to show only a substantial risk of harm, not actual harm. “‘[I]t is cruel
and unusual punishment to hold convicted criminals in unsafe conditions,’ regardless of
whether those conditions actually cause injury.” Garrett v. Lumpkin, 96 F.4th 896, 900 (5th
Cir. 2024) (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). Thus, prisoners cannot
be required to allege actual injury or demonstrate that prison practices caused their symp-
toms.9 Id. at 901.
Rather than rely on expert recommendations, state standards, or evidence of injury,
courts must analyze prisoner deprivations by the “amount and duration of the deprivation.”
Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (quoting Talib v. Gilley, 138 F.3d 211,
214 n. 3 (5th Cir. 1998)). Fifth Circuit courts have held that a de minimis deprivation of
merely one or two meals clearly does not pose a substantial risk to inmates.10 The con-
sistency of the deprivation is also relevant; where one prisoner may face a serious risk
when denied consecutive meals, another prisoner denied a comparable number of meals
across a longer period may not.11 Naturally, missing ten meals across five days poses a
8 Compare Fountain v. Rupert, 819 F. App'x 215, 219 (5th Cir. 2020) (reversing dismissal of prisoner’s
claim because he alleged starvation resulting in “extreme weight loss and other nutritional issues”) with
Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (dismissing prisoner’s claim because he had not alleged
that he “lost weight or suffered other adverse physical effects”).
9 This is not to say that evidence of harm is irrelevant to the court’s analysis. Actual injury is persuasive
evidence that a substantial risk existed; the absence of injury may, to a lesser extent, indicate that the risk
was insubstantial. What is clear is that the lack of actual harm cannot be fatal to a prisoner’s claim.
10 Spicer v. Collins, 9 F. Supp. 2d 673, 687 (E.D. Tex. 1998) (missing a single meal not a violation); Romero
v. Lann, 305 F. App'x 242, 243 (5th Cir. 2008) (missing 2 meals over 8 months not a violation).
11 Compare Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078 (5th Cir. 1991) (missing 36 consecutive
different degree of risk than missing ten meals across fifty days.
Gonzalez v. Corr. Corp. of Am. and Green v. Ferrell illustrate when the proportion
of meals missed begins to pose a substantial risk. In Gonzalez, the court held that a prisoner
suffered a substantial risk when he was denied meals on 21 out of 41 days—slightly more
than half of his meals across the relevant period. 344 F. App'x 984, 986 (5th Cir. 2009). By
comparison, the court in Green held that there was no constitutional right to receive three
meals a day rather than two. 801 F.2d 765, 878–79 (5th Cir. 1986). Thus, a prisoner likely
begins to face a substantial risk when he is denied between 30% and 50% of his meals.12
Because a consistently inadequate diet poses similar risks to one in which meals are
frequently denied, the guidelines above can be applied to cases like Garcia’s. As before,
the “amount and duration” of the diet deficiency is the relevant standard. Berry, 192 F.3d
at 507 (quoting Talib, 138 F.3d at 214 n. 3). Unlike in meal-denial cases, the prisoner usu-
ally alleges that their diet is consistently inadequate; because such a deficiency is of signif-
icant duration, the analysis turns primarily on the amount of the deficiency.
When the caloric or nutritional deficiency alleged is de minimis, the prisoner’s diet
is likely adequate and the risk insubstantial. See, e.g., Green, 801 F.2d at 770–71 (holding
that a prison diet deficient only in vitamin D was constitutionally adequate). Beyond this
de minimis bar, a prison diet begins to pose a substantial risk when it lacks between 33%
meals across 12 days was a violation) with Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (missing
50 meals across 5 months likely not a violation). Although the court in Talib assumed the prisoner suffered
a Constitutional harm for the sake of argument, it did so with reservation, noting that Talib was likely not
“denied anything close to a minimal measure of life's necessities.” Talib, 138 F.3d at 214 n. 3.
12 These percentages are offered only as a general guide. Additional factors, such as the prisoner’s health
and the duration of the deprivation, clearly affect the severity of the risk; the court must still engage in a
fact-specific assessment of the risk a prisoner faces.
and 50% of a prisoner’s dietary needs.
This analysis requires a point of reference that the alleged caloric or nutritional de-
ficiencies can be compared to. The undersigned finds it helpful to consider accepted expert
guidelines, such as the USDA Dietary Guidelines for Americans, when evaluating a pris-
oner’s dietary needs. That expert opinion is relevant to the Court’s analysis does not violate
Green’s admonition that “expert recommendations do not create constitutional standards.”
801 F.2d at 771 (5th Cir. 1986) (emphasis added). In fact, the court in Green based its
holding in part on the expert testimony provided at trial. Id. at 770–71. Like the court in
Green, the undersigned refers to the USDA guidelines as a guide to evaluate adequacy, not
as a constitutional minimum.13
With this foundation laid, the undersigned now turns to the substance of Garcia’s
allegations against the Defendants.
C. Claim 1: Caloric and Nutritional Sufficiency of TDCJ Meals
Garcia’s first claim is that TDCJ meals are calorically and nutritionally deficient.
He alleges that meals served at TDCJ provide on average 1200–1500 calories. Dkt. No. 17
at 2. He also alleges that TDCJ serves an outdated menu based primarily on starch and
carbs; as a result, the food served lacks several necessary nutrients, including meat protein,
13 The Sixth Circuit case Landman v. Royster provides an example of this type of analysis. When discussing
the constitutionality of a bread and water diet, the court noted that such a diet provides “only 700 calories,
whereas sedentary men on the average need 2000 calories or more to maintain continued health.” Landman
v. Royster, 333 F. Supp. 621, 647 (E.D. Va. 1971), supplemented, 354 F. Supp. 1302 (E.D. Va. 1973). The
relevant finding here was not that the prison diet provided less than the needed 2000 calories, but that it
offered substantially less, to the point of constituting a denial not only of “physical comforts but of neces-
sities.” Id. Similarly, the court noted that the “vitamin, protein, and mineral content [was] probably deficient
as well,” even without evidence presented on that issue. Id.
calcium, vitamin C, and vitamin D, among others. Dkt. No. 12 at. 5–6. Meals served at
TDCJ have been deficient since Garcia was first incarcerated in 1998, but became “10
times worse” during his second incarceration; when he was assigned to the Robertson Unit
in February 2022 and where he still remains. Dkt. No. 17 at 1–2.
For this claim to survive judicial screening, Garcia must satisfy the two-prong test
for a conditions-of-confinement claim by showing: (1) the caloric and nutritional deficien-
cies objectively posed a substantial risk of serious harm; and (2) the Defendants were de-
liberately indifferent to the substantial risk. Burleson, 393 F.3d at 589.
1. Does the TDCJ Diet Pose a Substantial Risk of Serious Harm?
Garcia must first demonstrate that the practice of undersupplying TDCJ units ex-
posed him to a substantial risk of serious harm. Here, Garcia alleges that the caloric and
nutritional value of the food served is so deficient as to create a substantial risk. He claims
that the meals provided offer 50% of the USDA requirements: only 1200–1600 calories
rather than the 2200–3000 recommended. Dkt. No. 17 at 2. He also claims that the meals
served lack several essential nutrients, including meat protein, calcium, iron, magnesium,
probiotics, vitamins D and C, and zinc. Dkt. No. 12 at. 6.
Garcia has plausibly alleged a sufficient deprivation of calories. While Garcia can-
not rely solely on TDCJ’s failure to satisfy USDA Dietary Guidelines, Green, 801 F.2d at
771, his claim properly specifies the degree to which the calories provided fall short of the
daily requirement. Garcia, who alleges that he is denied roughly 50% of his caloric needs
per meal, is comparable to the prisoner in Gonzalez, who successfully pleaded that he was
denied roughly 50% of his meals. Gonzalez, 344 F. App’x at 986. This is sufficient to show
that a substantial risk exists.14
However, Garcia has failed to allege a sufficient deprivation of nutrients. To support
his claim, Garcia cites a 2023 interview in which Defendant Parker admits that TDCJ
served a “1970s, 1980s menu” that included “a lot of starchy and carby food,” and that they
were “concerned about the health of individuals that . . . eat the food [they] have.” Dkt. No.
12 at 5. However, the Fifth Circuit has held that a prison diet consisting mainly of starch
and carbs, while “dull,” is not serious enough to require court intervention. Jones v. Dia-
mond, 636 F.2d 1364, 1378 (5th Cir. 1981), overruled on other grounds by Int'l Woodwork-
ers of Am., AFL-CIO & its Loc. No. 5-376 v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir.
1986).
The diet described in Garcia’s filings is also not as carb-heavy as he claims. The
typical TDCJ lunch and dinner that he describes contains meat and legumes. Dkt. No. 17
at 2. For example, Garcia provides an “example of [an] average meal” as consisting of 4
ounces of beans, 2 ounces of gravy mix, 2 ounces of beef or pork, a canned vegetable,
another 4 ounces of beans, and either white bread or corn bread. Id. The meals described
lack only vitamin C, probiotics, and calcium;15 however, a menu deficient in only one or
14 Garcia does not allege a substantial weight loss—or any weight loss—associated with the calorie deficit.
See Dkt. No. 17 at 3. Nonetheless, the holding in Garrett v. Lumpkin cautions against placing undue weight
on the absence of physical symptoms. 96 F.4th 896, 901. The undersigned remains persuaded that Garcia
has alleged exposure to a substantial caloric risk.
15 Garcia describes only examples of typical lunches or dinners. See Dkt. No. 17 at 2. He does not describe
a typical breakfast or the calories and nutrients associated with that meal. Nor does he clearly allege whether
he is consistently provided breakfast. Instead, he states that he sometimes receives only a PBJ sandwich as
a breakfast “Johnny.” Id. Because Johnny sacks are served during staffing shortages, the undersigned rea-
sonably infers that Garcia is ordinarily provided a standard breakfast—which he has not described in his
pleadings—but that, during periods of staffing shortages, that meal is replaced with a PBJ sandwich.
two nutrients likely imposes a de minimis deprivation and is constitutionally adequate.
Green, 801 F.2d at 770–1 (holding that a diet deficient only in vitamin D was constitution-
ally adequate). Garcia’s pleadings also indicate that inmates are served a wide variety of
foods: gravy, ground beef, ground pork, bologna, salami, soy meat, stew, various vegeta-
bles, sweet potatoes, mashed potatoes, various beans, white bread, cornbread, and PBJ
sandwiches. Dkt. No. 17 at 2. “The lists of meals which [Garcia] provides make clear that
he has not been denied reasonably adequate food.” McClure v. TDCJ-CID, No. 5:10CV66,
2011 WL 806227, at *18 (E.D. Tex. Jan. 31, 2011).
While Garcia is not required to allege physical harm to state an Eighth Amendment
claim, the absence of such allegations underscores the weakness of his nutrition-based
claims. Here, he does not allege any serious symptoms. Instead, he asserts only that the
deficient diet “messes with his blood thinner” by causing it to “fluctuat[e].” Dkt. No. 17 at
3. He declines to answer whether he has ever sought medical attention as a result of the
alleged diet and affirmatively states that he has never been diagnosed with any nutrient
deficiency. Id.
Garcia contends that the proper inquiry is whether the prolonged diet places him at
a substantial risk of future harm, such as premature death or a weakened immune system.
Id. The Court agrees with that framing. However, as discussed above, his own allegations
describe a diet that appears relatively nutrient-rich. Taken together, these facts do not plau-
sibly show that the alleged dietary conditions pose a “substantial risk of serious harm” to
Garcia.16 Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994)).
In conclusion, Garcia has alleged that caloric deficiency posed a substantial risk of
harm, but has not alleged that nutritional deficiency posed a substantial risk of harm.
2. Were Defendants Deliberately Indifferent to a Substantial Risk?
For each Defendant, Garcia must allege (1) that the Defendant was subjectively
aware of facts permitting an inference that a substantial risk existed, and (2) that the De-
fendant actually drew that inference. Burleson v. Texas Dep't of Crim. Just., 393 F.3d 577,
589 (5th Cir. 2004). Deliberate indifference can be satisfied only by intentional disregard,
rather than mere negligence. Shumpert v. City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018).
While subjective awareness is difficult to prove, “a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.” Farmer v.
Brennan, 511 U.S. 825, 842 (1944). A risk may be obvious if the plaintiff offers evidence
that it was “longstanding, pervasive, well-documented, or expressly noted by prison offi-
cials in the past,” and that “the circumstances suggest that the [defendant] had been exposed
to information concerning the risk.” Id. at 842–43.
Garcia relies on Parker’s 2023 interview as evidence of the Defendants’ mental
state; in the interview, Parker admitted that he and Collier knew that TDCJ served “a lot of
starchy and carby food” and were “concerned about [the] health” of the inmates eating it.
16 Garcia provides even less factual support for his nutritional claim than he does for his allegations regard-
ing caloric intake. Moreover, there is no case law supporting the general rule that a person faces a substantial
risk when denied 50% of their nutritional needs, while there is for a comparable caloric deficiency.
Dkt. Nos. 12 at 5. Garcia claims that this interview demonstrates that Parker and Kim knew
that TDCJ meals were calorically and nutritionally inadequate. Id.
Parker’s interview statement is insufficient to support Garcia’s claim. At the outset,
Parker expresses concern only about the menu’s nutritional value, so his comments do not
support Garcia’s caloric deficiency claim. Even then, the fact that a diet consists of “a lot”
of carbs does not, on its own, permit the inference that a substantial risk existed. See Jones,
636 F.2d at 1378. Similarly, that Parker and others expressed concern for inmate health
does not indicate that they inferred that a substantial risk existed, as opposed to a minor or
moderate risk. That Parker publicly expressed any concern tends to show that he and Kim
did not make an “intentional choice” to ignore the problem. Shumpert, 905 F.3d at 316.
Garcia’s remaining arguments are without merit. He attempts to infer Defendant
Kim’s awareness of an allegedly deficient menu from her failure to create an updated one.
Id. Likewise, he asserts—“upon information and belief”—that Defendants O’Daniel, Col-
lier, Lumpkin, Parker, and Taylor were aware of a substantial risk posed by the diet because
they purportedly adopted policies reducing the amount of food served, thereby forcing ad-
ministrators to dilute meals to make them stretch. Id.
Critically, Garcia does not allege that any Defendant actually drew the inference that
the TDCJ diet posed a substantial risk of serious harm to him or to inmates generally. Ra-
ther, aside from Parker’s interview, his allegations amount to little more than a contention
that Defendants should have known the diet was deficient and dangerous, which is insuffi-
cient to establish deliberate indifference. Allegations based on what the Defendants should
have known sound in negligence, rather than indifference, and negligence alone is
insufficient to bring a § 1983 claim. Shumpert, 905 F.3d at 316.
Lastly, Garcia cannot rely on the obviousness exception to presume subjective
awareness. Garcia alleges that the risks at issue are longstanding and pervasive: he claims
the diet was ten times worse starting in February 2022 and that it has not improved since.
Dkt. No. 17 at 1–2. However, longstanding and pervasive risks are not obvious unless the
defendant was also “exposed to information concerning the risk.” Farmer v. Brennan, 511
U.S. 825, 842–43 (1944). Here, Garcia lacks evidence that Defendants were exposed to
information concerning the risk; instead, he offers conclusory accusations of knowledge
based “upon information and belief.” Dkt. No. 12 at 5. The undersigned cannot assume that
Defendants were exposed to this knowledge merely because they are high-ranking TDCJ
officials.
For each Defendant, Garcia has failed to plausibly allege subjective knowledge of
an excessive or severe risk, or that the Defendant actually inferred such a risk existed. Thus,
Garcia cannot demonstrate that the Defendants acted with deliberate indifference. Because
he has failed to allege facts supporting both elements of his conditions-of-confinement
claim, his first claim does not survive judicial screening.17
D. Claim 2: Negligence
Garcia’s final claim is that Defendants negligently failed to ensure the food served
17 The undersigned notes that Garcia raises several practices that allegedly caused nutritional and caloric
deficiency: an outdated menu, intentional undersupplying of units, and resulting watering down of meals.
Dkt. No. 12 at 5. Here, it is not necessary to perform an individual conditions-of-confinement analysis for
each practice because the outcome would be the same. Regardless of which practices, individually or in
combination, caused TDCJ meals to be served as they are, the objective risk of harm Garcia faced remains
the same. Similarly, Garcia fails to allege any additional facts showing that the defendants were deliberately
indifferent.
at TDCJ facilities was calorically and nutritionally adequate. As discussed above, Garcia
at times bases his allegations against Defendants on their alleged negligent adoption of a
harmful policy or practice. Dkt. No. 12 at 5. Thus, for the sake of thoroughness, the under-
signed also construes Garcia’s pleadings as bringing negligence claims.
To the extent that he bases his allegations on negligence rather than deliberate in-
difference, Garcia fails to state a claim. Prisoners cannot bring claims for ordinary or even
gross negligence under § 1983; the relevant state of mind is deliberate indifference, which
is a “degree of culpability beyond mere negligence or even gross negligence.” Shumpert v.
City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018). Garcia must instead bring any claims
based on negligence in state court. Therefore, his second claim does not survive judicial
screening.
VI. LEAVE TO AMEND
The undersigned has concluded that none of Garcia’s claims survive judicial screen-
ing; however, there is the issue of whether the Court must give Garcia leave to amend his
complaint. Generally, “a pro se litigant should be offered an opportunity to amend his com-
plaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009).
Leave to amend is not required, however, where an amendment would be futile, in other
words, the amended complaint would still fail to state a claim, Marucci Sports, LLC v. Nat’l
Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014), or where a plaintiff has already
received an opportunity to amend his or her claims, Cent. Laborers’ Pension Fund v. Inte-
grated Elec. Servs. Inc., 497 F.3d 546, 556 (5th Cir. 2007).
Here, the undersigned concludes that Garcia has pleaded his best case. He has
already described the caloric and nutritional content of his meals in great detail across his
Complaint and questionnaire response, Dkt. Nos. 12, 17; thus, it is unlikely that he could
allege new facts demonstrating that TDCJ meals posed a more serious risk. More im-
portantly, it is clear that Garcia is unable to plead that Defendants were deliberately indif-
ferent. Garcia relies either on Defendants’ leadership positions or Parker’s 2023 inter-
view—as already discussed, neither demonstrates subjective awareness of a serious risk.
Dkt. No. 12 at 5. For other Defendants, Garcia presumes their knowledge without support
or admits outright that he doesn’t know their mental state. Id. Because it appears that Garcia
has pleaded his best case, the undersigned concludes that further leave to amend would be
futile.
VII. CONCLUSION
Because Garcia has not alleged sufficient facts to plausibly plead the violation and
deliberate indifference prongs of a conditions-of-confinement claim, then Garcia has also
not alleged an ongoing violation of federal law that permits the claim to pass the Eleventh
Amendment bar. Thus, the Ex parte Young exception does not apply to his claims and they
are each barred by the Eleventh Amendment. Tex. All. for Retired Ams. v. Scott, 28 F.4th
669, 672 (5th Cir. 2022). “Sovereign immunity is jurisdictional.” Cozzo v. Tangipahoa Par.
Council--President Gov't, 279 F.3d 273, 280 (5th Cir. 2002). Because Defendants are enti-
tled to sovereign immunity against Garcia’s claims, the Court lacks jurisdiction over them.
For the reasons explained above, the undersigned RECOMMENDS that the Court
DISMISS Garcia’s Eighth Amendment and negligence claims against all Defendants with-
out prejudice.
VII. RIGHT TO OBJECT
A copy of these Findings, Conclusions, and Recommendations shall be served on
all parties in the manner provided by law. Any party who objects to any part of these Find-
ings, Conclusions, and Recommendations must file specific written objections within four-
teen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
To be specific, an objection must identify the specific finding or recommendation to which
the objection is made, state the basis for the objection, and specify the place in the magis-
trate judge’s Findings, Conclusions, and Recommendations where the disputed determina-
tion is found. An objection that merely incorporates by reference or refers to the briefing
before the magistrate judge is not specific. Failure to file specific written objections will
bar the aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon grounds of
plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (Sth Cir. 1996).
IX. TRANSFER OF CASE
Having completed the preliminary screening of Garcia’s claims, the undersigned
ORDERS that this case be TRANSFERRED back to the docket of the United States Dis-
trict Judge and designated as Civil Action No. 1:23-CV-00140-H.
ORDERED this 10th day of April 2026.
SQ
JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
26