Robert Morris v. Brad Livingston

Case: 12-50848 Document: 00512495684 Page: 1 Date Filed: 01/10/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 12-50848

January 10, 2014

Lyle W. Cayce

Clerk

ROBERT CHARLES MORRIS, Individual and Ward of the State of Texas,

Plaintiff - Appellant

v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal

Justice,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

KING, Circuit Judge:

Plaintiff-Appellant Robert Charles Morris brings this suit pursuant to

42 U.S.C. § 1983, challenging the constitutionality of the Texas statute

providing that inmates must pay a $100 annual health care services fee when

they receive medical treatment in the prison system. The district court granted

Defendant-Appellee Brad Livingston’s motion to dismiss. For the following

reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Robert Charles Morris is an inmate in the custody of

the Texas Department of Criminal Justice (“TDCJ”), confined in TDCJ’s

Stevenson Unit in Cuero, Texas. He has been in TDCJ custody since 2005.

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Morris challenges the collection of the health care services fee (“fee”) under

Texas Government Code § 501.063.

Section 501.063 provides that “[a]n inmate confined in a facility operated

by or under contract with the [TDCJ] . . . who initiates a visit to a health care

provider shall pay a health care services fee to [TDCJ] in the amount of $100.”

Tex. Gov’t Code § 501.063(a)(1) (2013). The payment of the health care services

fee “covers all visits to a health care provider that the inmate initiates until

the first anniversary of the imposition of the fee.” Id. § 501.063(a)(2) (emphasis

added). The inmate pays the fee out of his inmate trust fund. Id.

§ 501.063(a)(3). If the balance in the fund is insufficient, then “50 percent of

each deposit to the fund shall be applied toward the balance owed until the

total amount owed is paid,” leaving the other fifty percent available for the

inmate’s use. Id. Section 501.063 expressly provides that TDCJ “may not deny

an inmate access to health care as a result of the inmate’s failure or inability

to pay a fee under this section.” Id. § 501.063(c). 1 The Texas Legislature

1 Section 501.063 provides, in its entirety:

(a)(1) An inmate confined in a facility operated by or under contract with the

department, other than a halfway house, who initiates a visit to a health care

provider shall pay a health care services fee to the department in the amount

of $100.

(2) The fee imposed under Subdivision (1) covers all visits to a health care

provider that the inmate initiates until the first anniversary of the imposition

of the fee.

(3) The inmate shall pay the fee out of the inmate’s trust fund. If the balance

in the fund is insufficient to cover the fee, 50 percent of each deposit to the fund

shall be applied toward the balance owed until the total amount owed is paid.

(b) The department shall adopt policies to ensure that before any deductions

are made from an inmate’s trust fund under this section, the inmate is

informed that the health care services fee will be deducted from the inmate’s

trust fund as required by Subsection (a).

(c) The department may not deny an inmate access to health care as a result

of the inmate’s failure or inability to pay a fee under this section.

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amended § 501.063 in 2011 to increase the fee from $3 to its current $100. See

Act of July 19, 2011, 82nd Leg., 1st C.S., ch. 4, § 65.02, 2011 Tex. Gen. Laws

5333. The 2011 amendment also removed language from the section that had

granted exemptions to inmates for emergency care, routine follow-up care,

prenatal care, and chronic care. Id.

In August 2011, before § 501.063’s effective date the following month,

prison officials posted notices at the prison about the statute’s amendment. 2

The notice listed several exemptions, even though § 501.063 did not provide for

any exemptions. 3 Morris admits that notice “was provided by TDCJ” and

“posted on housing units.” In March 2012, TDCJ promulgated an

administrative directive concerning the changes to the statute. 4 The directive

(d) The department shall deposit money received under this section in an

account in the general revenue fund that may be used only to pay the cost of

correctional health care. At the beginning of each fiscal year, the comptroller

shall transfer any surplus from the preceding fiscal year to the state treasury

to the credit of the general revenue fund.

Tex. Gov’t Code § 501.063.

2 The notice stated, in relevant part, that effective September 28, 2011,

[A] new state law goes into effect that amends Section 501.063, Texas

Government Code, and changes the fee amount the Department of Criminal

Justice is required to collect from each offender who requests a visit to a health

care provider.

You will be charged a $100.00 fee for the first health care visit that you request.

...

This fee covers all health care visits that you request for one year. Any visit

that you request after the one year period will be charged another $100.00 fee.

3 Specifically, the notice stated:

You will not be charged for a health care visit that is for: an emergency or life-

threatening situation; follow-up services recommended by the health care staff;

chronic care (including communicable diseases such as HIV, AIDS and TB);

prenatal care; health screening and evaluations related to the diagnostic and

reception process; or, health care services necessary to comply with State law

and regulations.

4 See AD-06.08 (rev. 6)—Annual Health Care Services Fee for Offenders (March 2,

2012).

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provided that an inmate “who initiates a visit to health care staff shall pay an

annual health care services fee to the TDCJ in the amount of $100 unless the

visit is specifically exempt in accordance with this directive or the offender has

already paid a $100 annual health care services fee within the last 12 months.”

The directive also listed several exemptions, including for emergency care,

diagnosis or treatment of a communicable disease, mental health reviews,

follow-up visits, or prenatal services, among other exemptions.

Morris alleges that he injured his knee in September 2005, that his

treatment requires that he take prescription medications on a regular basis,

and that some of those medications must be renewed every six months. Morris

filed this § 1983 action in federal district court in August 2011, when he

learned that he would be charged the health care services fee each year for

medical care under the amended statute, beginning in September 2011. Morris

named Governor Rick Perry as the defendant, in his individual and official

capacities.

In his complaint, Morris alleged that he understood “his medical issues

would no longer be considered ‘chronic care’ . . . under the new standards,”

requiring him to pay the $100 fee each year for his receipt of prison medical

services. Morris maintained that “[t]he charging of prisoners or wards of the

State of Texas a medical co-pay” violates the Eighth Amendment, the Due

Process Clause of the Fourteenth Amendment, the Ex Post Facto Clause, and

the Fourth Amendment. He asked the district court to enter both a declaratory

judgment that § 501.063 violated his constitutional rights, and preliminary

and permanent injunctions preventing the State of Texas or Governor Perry

from charging medical copayments to prisoners. Morris also applied to proceed

in forma pauperis (IFP) and filed a separate motion for a preliminary

injunction.

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The magistrate judge granted Morris IFP status, and the district court

denied his motion for a preliminary injunction, concluding that he failed to

show a substantial likelihood of success on the merits. Governor Perry moved

to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure, asserting that he was entitled to absolute immunity

in his individual and official capacities for his legislative actions. He also

contended that any claim against him in his official capacity was barred by the

Eleventh Amendment, since he was not responsible for enforcing § 501.063.

Lastly, Governor Perry asserted that Morris failed to state a claim upon which

relief could be granted because § 501.063 did not violate the Constitution.

Morris opposed the motion to dismiss. He clarified that he was not

challenging Governor Perry’s legislative actions, but naming Governor Perry

as a defendant “in his Executive duty and as the legal Guardian of the

plaintiff.” Morris also defended against the motion to dismiss on the merits,

asserting that he had stated a claim for the deprivation of his constitutional

rights. He contended that Governor Perry had failed to provide a legitimate

penological interest for the seizure of Morris’s money, and asserted that TDCJ

should allow prisoners “a modest balance” in their trust fund accounts “to buy

the simple personal commodities like toiletries available at the commissary.”

The magistrate judge issued a report and recommendation that

Governor Perry’s motion to dismiss be granted in part. The magistrate judge

recommended that the district court dismiss Governor Perry as the defendant,

since he was not responsible for enforcing § 501.063 and the Eleventh

Amendment therefore barred the official capacity suit against him. The

magistrate judge recommended that the district court substitute as the

defendant Brad Livingston, the executive director of TDCJ. On the merits, the

magistrate judge noted that “Morris does not allege that he might be denied

medical services if he is unable to pay the copayment fee, but instead

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acknowledges that the statute and TDCJ Notice provide that medical services

will not be denied in such a circumstance.” Accordingly, the magistrate judge

concluded that Morris “does not allege that prison officials will be deliberately

indifferent to any serious medical needs,” and thus there was no Eighth

Amendment violation. The magistrate judge recommended finding no due

process violation because TDCJ’s notice was sufficient and because § 501.063

bears a rational relationship to a legitimate government interest. The

magistrate judge recommended finding no ex post facto violation because the

health care services fee was not “punitive” in nature. Finally, the magistrate

judge recommended finding no unreasonable seizure because, although

inmates have a property interest in their prison trust fund accounts, “[t]he

collection of funds is directly tied to a reasonable goal on the part of the state

legislature and TDCJ—that is, to reduce the state’s costs in delivering health

care services to prisoners by delegating minor financial responsibility to the

inmate-patients—and is reasonable under the circumstances.”

Morris objected to the report and recommendation. He admitted that

substituting Livingston as a defendant was proper, but he argued that

Governor Perry should not have been dismissed because he was Morris’s legal

guardian. He repeated his contentions in support of his claims on the merits

and, for the first time, alleged that “TDCJ does not provide all hyg[ie]ne

necessities.” He did not specify what hygiene necessities are not provided. The

district court accepted the report and recommendation, and granted Governor

Perry’s motion to dismiss for failure to state a claim. The district court warned

Morris that the filing of three actions or appeals dismissed as frivolous or for

failure to state a claim would bar him from bringing new IFP civil actions.

Morris timely appealed.

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II. STANDARD OF REVIEW

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12

motions, the court should consider the Rule 12(b)(1) jurisdictional attack before

addressing any attack on the merits.” Randall D. Wolcott, M.D., P.A. v.

Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). This Court “review[s] a district

court’s dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction de

novo.” Id.; see Fed. R. Civ. P. 12(h)(3). “The party asserting jurisdiction bears

the burden of proof for a 12(b)(1) motion to dismiss.” Wolcott, 635 F.3d at 762.

We review claims of sovereign immunity de novo. Delta Commercial Fisheries

Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269, 273–74 (5th Cir.

2004).

Likewise, we review a district court’s dismissal under Rule 12(b)(6) de

novo, “accepting all well-pleaded facts as true and viewing those facts in the

light most favorable to the plaintiffs.” Wolcott, 635 F.3d at 763. Rule 8 of the

Federal Rules of Civil Procedure does not require “detailed factual allegations,

but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted). Thus, a plaintiff’s claim must contain “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). This plausibility standard is met where a plaintiff

“pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

III. CONSTITUTIONAL CLAIMS

Morris argues that the district court erred by dismissing Governor Perry

and holding that § 501.063 did not violate the Eighth Amendment, the Due

Process Clause of the Fourteenth Amendment, the Fourth Amendment, or the

Ex Post Facto Clause. These arguments are unpersuasive, and will be

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addressed in turn. We conclude that the district court was correct in all

respects, and we affirm its decision.

A. Dismissal of Governor Perry

Morris argues that the district court erred in dismissing Governor Perry

as a defendant. The district court determined that Morris’s claims against

Governor Perry were barred by the Eleventh Amendment, but it substituted

Livingston as defendant in his official capacity as the executive director of

TDCJ. We conclude that the district court did not err.

“Sovereign immunity is the privilege of the sovereign not to be sued

without its consent.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct.

1632, 1637 (2011). 5 Accordingly, absent a waiver or valid abrogation, “federal

courts may not entertain a private person’s suit against a State.” Id. at 1638.

“[A] suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office. As such, it

is no different from a suit against the State itself.” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989) (internal citation omitted); see also Union Pac.

R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 n.3 (5th Cir. 2011).

Accordingly, Morris’s suit against Governor Perry is “no different from a suit

against” the State of Texas. Ex parte Young, 209 U.S. 123 (1908) provides an

exception to this rule: “state officers c[an] be sued in federal court despite the

Eleventh Amendment . . . [if] the officers have ‘some connection with the

enforcement of the act’ in question or [are] ‘specially charged with the duty to

enforce the statute’ and [are] threatening to exercise that duty.” Okpalobi v.

Foster, 244 F.3d 405, 414–15 (5th Cir. 2001) (en banc) (quoting Ex parte Young,

5 The Eleventh Amendment provides that “[t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI.

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209 U.S. at 157, 158). The required “connection” is not “merely the general

duty to see that the laws of the state are implemented,” but “the particular

duty to enforce the statute in question and a demonstrated willingness to

exercise that duty.” Id. at 416.

Section 501.063 makes clear that TDCJ is the agency responsible for the

section’s administration and enforcement. See, e.g., Tex. Gov’t Code

§ 501.063(b) (providing that TDCJ “shall adopt policies to ensure” notice is

given to an inmate before a fee is deducted from an inmate’s account). Section

501.063 does not specially task Governor Perry with its enforcement, or

suggest that he will play any role at all in its enforcement. As a result,

Governor Perry is not a proper defendant. Morris cites no authority for the

proposition that Governor Perry becomes a proper defendant because he is in

a “guardian-ward relationship” with Morris, nor do we find any. Therefore, we

affirm the dismissal of Governor Perry and turn to the merits of Morris’s claim.

B. Morris’s Substantive Constitutional Claims

1. Eighth Amendment Challenge

Morris asserts that the health care services fee violates the Eighth

Amendment’s ban on cruel and unusual punishment. We construe his claim

as asserting that he is being denied medical care, or in the alternative, that

the fee requires him to decide between obtaining medical care or basic

necessities. We conclude that his complaint does not state sufficient facts to

support an Eighth Amendment claim under either theory of relief.

Since “[p]rison walls do not form a barrier separating prison inmates

from the protections of the Constitution,” the “federal courts must take

cognizance of the valid constitutional claims of prison inmates.” Turner v.

Safley, 482 U.S. 78, 84 (1987). “The Eighth Amendment, which applies to the

States through the Due Process Clause of the Fourteenth Amendment,

prohibits the infliction of ‘cruel and unusual punishments’ on those convicted

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of crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97 (1991) (internal citation

omitted). In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court

explained that the principles behind the Eighth Amendment “establish the

government’s obligation to provide medical care for those whom it is punishing

by incarceration.” Id. at 103; see also Wilson, 501 U.S. at 297.

In City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983),

the Court considered whether the Constitution affects the allocation of costs

for medical care. 6 The Court explained that “as long as the governmental

entity ensures that the medical care needed is in fact provided, the

Constitution does not dictate how the cost of that care should be allocated as

between the entity and the provider of the care. That is a matter of state law.”

Id. at 245. The Court stated that “[n]othing we say here affects any right a

hospital or governmental entity may have to recover from a detainee the cost

of the medical services provided to him.” Id. at n.7. From this, the lower courts

have concluded that there is “no general constitutional right to free health

care.” Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997); see Poole v. Isaacs,

703 F.3d 1024, 1026 (7th Cir. 2012) (the “Eighth Amendment does not compel

prison administrators to provide cost-free medical services to inmates who are

able to contribute to the cost of their care”); Bihms v. Klevenhagen, 928 F. Supp.

6 In City of Revere, police officers shot and wounded a suspect, whom they brought to

Massachusetts General Hospital’s (“MGH”) emergency room for medical treatment. 463 U.S.

at 240–41. MGH sent the Chief of Police of Revere a bill for the cost of the medical services

it rendered the suspect, and subsequently sued Revere in state court to recover on the unpaid

bill. Id. at 241. The Massachusetts Supreme Judicial Court had held that the Eighth

Amendment required that “Revere be liable to the hospital for the medical services rendered.”

Id. The Supreme Court reversed, explaining that “the injured detainee’s constitutional right

is to receive the needed medical treatment; how the city of Revere obtains such treatment is

not a federal constitutional question.” Id. at 245.

Even though City of Revere concerned a pretrial detainee’s due process rights, the

Court noted that “the due process rights of a person in [the wounded suspect’s] situation are

at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id.

at 244.

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717, 718 (S.D. Tex. 1996) (“As [plaintiff] was obliged to pay court costs, he may

be obliged to pay his medical costs.”).

In the medical context, “to state a cognizable [Eighth Amendment] claim,

a prisoner must allege acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs. It is only such indifference

that can offend ‘evolving standards of decency’ in violation of the Eighth

Amendment.” 7 Estelle, 429 U.S. at 106. Since Estelle said that “only the

‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment,

a prisoner advancing such a claim must, at a minimum, allege ‘deliberate

indifference’ to his ‘serious’ medical needs.” Wilson, 501 U.S. at 297 (internal

citation omitted). The Court explains the test as follows:

[A] prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be,

objectively, “sufficiently serious”; a prison official’s act or omission

must result in the denial of “the minimal civilized measure of life’s

necessities”[.] . . . The second requirement follows from the

principle that “only the unnecessary and wanton infliction of pain

implicates the Eighth Amendment.” To violate the Cruel and

Unusual Punishments Clause, a prison official must have a

“sufficiently culpable state of mind.” In prison-conditions cases

that state of mind is one of “deliberate indifference” to inmate

health or safety . . . .

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted).

We conclude that Morris has not alleged facts that exhibit deliberate

indifference. “[T]he deliberate indifference standard of Estelle does not

7 The Supreme Court endorsed the use of the deliberate indifference test for Eighth

Amendment challenges in prison conditions cases in Wilson, 501 U.S. at 297, and other courts

considering prison medical copayment statutes and policies have likewise applied a

deliberate indifference analysis. See Reynolds, 128 F.3d at 174; Shapley v. Nev. Bd. of State

Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1984) (“The complaint alleges no facts which the

court could construe as deliberate indifference under Estelle[, 429 U.S. at 106–07].”);

Breakiron v. Neal, 166 F. Supp. 2d 1110, 1116 (N.D. Tex. 2001) (“Deducting payments from

[prisoner’s] inmate trust account does not of itself exhibit deliberate indifference by

[defendant].”).

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guarantee prisoners the right to be entirely free from the cost considerations

that figure in the medical-care decisions made by most non-prisoners in our

society.” Wagner, 128 F.3d at 175; see also Farrakhan v. Johnson, 2009 WL

1360864, at *5 (E.D. Va. May 13, 2009) (unpublished) (“Inmates are not

entitled to free medical care, and an inmate’s displeasure at having to pay such

co-payment does not present a constitutional claim.”).

Morris has not alleged that he is denied medical care. He also has not

pled sufficient facts to show that the health care services fee acts as a

functional denial of medical care, by requiring him to obtain either medical care

or basic necessities. The Eighth Amendment requires prison officials to

provide inmates with “adequate food, clothing, shelter, and medical care.”

Farmer, 511 U.S. at 832. Although Morris alleges that “TDCJ does not provide

all hyg[ie]ne necessities,” he does not identify any necessities, hygienic or

otherwise, that he is denied. His assertion that he should be permitted a

“modest balance” in his trust fund account “to buy the simple personal

commodities like toiletries available at the commissary” is similarly

unavailing. See Shapley, 766 F.2d at 408 (“Pro se complaints must be liberally

construed, but [plaintiff] alleges no facts revealing how the $3 fee requirement

affected him.” (citation omitted)).

Thus, while we are cognizant of the concern expressed in Collins v.

Romer, 962 F.2d 1508 (10th Cir. 1992), that a statute not “force[] the Plaintiffs

to choose between basic medical care or basic hygiene necessities,” id. at 1510–

11, Morris has not alleged that he faced any such choice. See also Wagner, 128

F.3d at 178 (“It is apparent that the Berks County Prison Program does not

force inmates to choose between necessary medical care and other essentials.”).

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Accordingly, Morris fails to allege that any deprivation is sufficiently serious

to constitute deliberate indifference. See Iqbal, 556 U.S. at 678. 8

Importantly, § 501.063 provides that TDCJ will not deny any inmate

medical care because of an inmate’s inability to pay. Tex. Gov’t Code

§ 501.063(c). As in Wagner, the program here “does not ‘condition the provision

of needed medical services on an inmate’s ability to pay.’ Under the program,

no inmate is ever denied medical care for lack of money.” 128 F.3d at 174; see

also Breakiron, 166 F. Supp. 2d at 1116 (“[Plaintiff] has not alleged, moreover,

that he was denied medical treatment because of any inability to pay for the

medical treatment.”); McCall v. Johnson Cnty. Sheriff’s Dep’t, 71 F. App’x 30,

31 (10th Cir. 2003) (unpublished) (“It is clearly constitutionally acceptable to

charge inmates a small fee for health care where, as here, indigent inmates are

guaranteed service regardless of ability to pay. Despite [plaintiff’s] claim, it

appears that penurious prisoners have a debit placed on their prison account

balance. As such, [plaintiff] does not allege that he was denied access to

medical care due to any inability to satisfy the copayment requirement . . . .”).

As noted, Morris does not allege that he was denied access to medical care

because of his inability to pay the fee, or that provision of medical care was

delayed as a result of his inability to pay. Rather, he admitted in his objection

to the report and recommendation that his account was debited a $100 fee in

November 2011, and that he was provided with medical care.

Moreover, § 501.063 creates a system under which only fifty percent of

the monies deposited into the trust fund accounts of indigent inmates are

credited against any negative balance. See Tex. Gov’t Code § 501.063(a)(3).

8Because Morris fails to allege the denial of medical care or the forced choice between

medical care and basic necessities, we are not called upon to determine which specific items

may constitute basic necessities for purposes of the Eighth Amendment.

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The other fifty percent remains available for an inmate’s use for other means,

such as to pay court fees or purchase items from the commissary.

Finally, for the same reasons we outline above, “[t]o the extent that

[defendant] is arguing for some form of per se unconstitutionality, we reject his

position.” Poole, 703 F.3d at 1027; see also Breakiron, 166 F. Supp. 2d at 1115–

1116 (“Charging inmates for medical care, furthermore, is not per se

unconstitutional. . . . Deducting payments from a prison trust account does not

of itself violate the Eighth Amendment’s prohibition against cruel and unusual

punishment.”); McCall, 71 F. App’x at 31; Bihms, 928 F. Supp. at 729. 9

We are not persuaded by the statement in Department of Corrections v.

Sisters of St. Francis, 836 S.W.2d 719, 725 (Tex. App.—Hous. [1st Dist.] 1992,

no writ), that “[t]he right of an incarcerated prisoner to free medical care is

recognized both under Texas statute and under the United States

Constitution.” The court cites Estelle for this proposition, but Estelle offers no

support, simply stating that the Eighth Amendment requires the government

“to provide medical care for those whom it is punishing by incarceration.” 429

U.S. at 103. Additionally, Sisters of St. Francis did not concern copayment

obligations by inmates (or even an Eighth Amendment challenge), but the

State’s liability to a private medical facility that provided care for an inmate

on emergency medical reprieve. For these reasons, we find the Sisters of St.

Francis court’s statement about prisoner access to medical care inapplicable.

9Morris also argues that the district court applied the wrong standard of review in

using Turner, 482 U.S. at 89. We are doubtful that the legitimate penological interest test

from Turner applies here, since Turner concerned a prison regulation, not a statute, and dealt

with impingement on inmates’ First Amendment rights, not with Eighth Amendment issues.

However, even if the test applies, we conclude that § 501.063 is related to a legitimate

penological interest because the statute seeks to control the prison budget, and we have

recognized that budgetary considerations may be a valid penological concern. See

Moussazadeh v. Tex. Dep’t of Crim. Justice, 703 F.3d 781, 795 (5th Cir. 2012); Baranowski v.

Hart, 486 F.3d 112, 122 (5th Cir. 2007).

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The fact that the prison regulations and statutes analyzed by other

courts in similar cases impose smaller fees than that in § 501.063 is not

dispositive. All inmates are guaranteed medical care regardless of ability to

pay, and half of all deposits into inmates’ trust fund accounts is reserved for

their use, even if there is a negative balance due to payment of a health care

services fee. Further, Morris has not adequately alleged that he is forced to

choose between paying for medical care and paying for basic necessities.

We conclude that Morris has not pled an Eighth Amendment violation.

2. Due Process Challenge

Morris next argues that the district court erred in denying him relief on

his procedural due process claim. “To state a Fourteenth Amendment due

process claim under § 1983, a plaintiff must first identify a protected life,

liberty or property interest and then prove that governmental action resulted

in a deprivation of that interest.” Gentilello v. Rege, 627 F.3d 540, 544 (5th

Cir. 2010) (internal quotation marks and citation omitted). In procedural due

process claims, “the deprivation by state action of a constitutionally protected

interest in life, liberty, or property is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without due process of

law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal quotation marks

omitted). A government decision depriving an individual of his right to “life,

liberty or property” must, at a minimum, be preceded by notice and an

opportunity for the individual to be heard. Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 313 (1950).

We assume arguendo that inmates have a protected property interest in

the funds in their prison trust fund accounts, entitling them to due process

with respect to any deprivation of these funds. Rosin v. Thaler, 417 F. App’x

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432, 434 (5th Cir. 2011) (per curiam) (unpublished); see Eubanks v. McCotter,

802 F.2d 790, 793 (5th Cir. 1986). 10

Morris argues that the notice was inadequate, and he also seems to argue

that the prison provides inadequate post-deprivation process for challenging

incorrect fee assessments. Specifically, Morris contends that TDCJ staff do not

give notice to prisoners “at each visit,” and he argues that the posted notice is

inaccurate because it states that inmates “will not be charged” for certain

health care visits, even though § 501.063 does not contain any exemptions.

Importantly, Morris’s attack is on the statute itself: his claim is that

§ 501.063 is unconstitutional. He does not attack the regulation that the prison

adopted, AD-06.08, or the regulation’s effect on him. 11 As such, the regulation

is relevant to this appeal only insofar as Morris’s complaint about notice

implicates the regulation.

We conclude that the notice provided was constitutionally adequate.

Morris admitted that TDCJ posted notices about the statute in the prison. The

notice informs inmates that under § 501.063, inmates will be charged a $100

fee for health care visits effective September 2011, which “covers all health

care visits that you request for one year.” AD-06.08, which TDCJ promulgated

the following March, includes additional provisions for notice to offenders. 12

10See also Breakiron, 166 F. Supp. 2d at 1114; Abdullah v. State, 211 S.W.3d 938, 943

(Tex. App.—Texarkana 2007, no pet.); Wagner, 128 F.3d at 179; Mahers v. Halford, 76 F.3d

951, 954 (8th Cir. 1996); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985).

11Morris did not amend his complaint to add a claim challenging the prison regulation

as applied.

12 Specifically, AD-06.08 provides:

IV. Notice to Offender

Offenders shall be provided notice explaining the annual health care services

fee and which services are exempt. The notice shall clearly indicate that no

offender will be denied access to health care services due to an inability or

failure to pay. Such notices shall be prepared in both English and Spanish.

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Taken together, this notice is sufficient. See Myers v. Klevenhagen, 97 F.3d 91,

95 (5th Cir. 1996) (per curiam) (“[W]ith respect to the alleged lack of notice, we

think that the Sheriff met the constitutional minima by posting information

regarding the new medical services policy in the jail cells, by distributing

explanatory memoranda to the jail’s personnel and by holding meetings about

the new policy with medical personnel.”).

We further find that the discrepancy between the posted notice and the

statute does not render the notice inadequate. One of an agency’s primary

roles is to develop and implement regulations based on legislative enactments.

See, e.g., Galveston Cnty. v. Tex. Dep’t of Health, 724 S.W.2d 115, 123 (Tex.

App.—Austin 1987, writ refused n.r.e.). Although TDCJ had not yet

implemented regulations concerning § 501.063 when it posted the notice (i.e.,

AD-06.08), the notice itself was an exercise of TDCJ’s regulation-making

authority. When TDCJ promulgated AD-06.08 several months later, that

A. A written explanation of the annual health care services fee and

exemptions shall be provided to each offender during initial orientation and

intake.

B. A printed notice explaining the annual health care services fee and which

services are exempt shall be prepared and affixed onto or near each sick

call request box and shall be prominently posted in the patient waiting area

of each unit health care department.

C. The offender Sick Call Request form shall include a statement that reads

as follows: “In accordance with state law, if this visit meets offender annual

health care services fee criteria, I understand that my trust fund account

may be charged a $100 fee. I also understand that I will be provided access

to health care services regardless of my ability to pay this fee.” The Sick Call

Request form should be signed by the offender at the time of submission.

Regardless of whether or not the offender signs the Sick Call Request the

annual health care services fee shall be deducted from the offender’s

account if the visit to health care staff prompted by the Sick Call Request

is found to meet the criteria.

See also Tex. Gov’t Code § 501.063(b) (“The department shall adopt policies to ensure that

before any deductions are made from an inmate’s trust fund under this section, the inmate

is informed that the health care services fee will be deducted from the inmate’s trust fund as

required by Subsection (a).”).

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directive was consistent with the posted notice in listing exemptions not

included in the amended version of § 501.063. Accordingly, the fact that the

posted notice, unlike § 501.063 as amended, excluded payments in certain

circumstances does not render that notice unconstitutional. 13

Morris does not successfully allege any other due process violation. He

does not explain how the State’s post-deprivation remedy is inadequate in any

way. See Myers, 97 F.3d at 95–96 (“[B]ecause a postdeprivation state remedy

existed, which the plaintiffs have failed to show was inadequate, all these

alleged violations fail to state an actionable constitutional claim under section

1983.”); Breakiron, 166 F. Supp. 2d at 1114 (holding that plaintiff failed to

allege that deductions from prison trust fund account occurred without due

process of law). In fact, he admits that he received credit for at least one $100

charge that he alleged had been deducted incorrectly. Accordingly, Morris’s

due process claims fail.

3. Fourth Amendment Challenge

Morris argues that the health care services fee constitutes an

unreasonable seizure in violation of the Fourth Amendment. A seizure of

property occurs when there is “some meaningful interference with an

individual’s possessory interests in that property.” United States v. Jacobsen,

466 U.S. 109, 113 (1984). “The Fourth Amendment requires that any seizure

of property by the State be reasonable.” RBIII, L.P. v. City of San Antonio, 713

F.3d 840, 846 (5th Cir. 2013). As noted above, we assume arguendo that

inmates have a property interest in their inmate trust fund accounts. Rosin,

417 F. App’x at 434; Breakiron, 166 F. Supp. 2d at 1114.

The district court determined that the seizure of Morris’s funds was

reasonable because it was related to the legitimate penological purpose of

13As noted above, because Morris does not challenge the regulation’s effect on him,

we are not presented here with any question about the how the prison has executed its policy.

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controlling the prison budget. In his brief, Morris contends that the district

court erred in determining that budgetary concerns were a valid penological

concern. We have held that prison policies adversely affecting a prisoner’s

constitutional rights may be justified based on budgetary concerns. See

Moussazadeh, 703 F.3d at 795 (recognizing that “cost reduction, as a general

matter, is unquestionably a compelling interest of TDCJ,” but expressing

skepticism that TDCJ’s savings in denying kosher meals to a prisoner

constitutes a compelling interest); Baranowski, 486 F.3d at 122 (concluding

that prison’s failure to provide kosher meals was justified in part because of

expense). The district court concluded that the fee increase was based on

budgetary concerns, and Morris concedes the point.

Moreover, we are skeptical that the assessment of the fee is a seizure

given its nature as a fee charged in exchange for the provision of medical care.

See, e.g., Wagner, 128 F.3d at 180 (“[T]his is not a situation in which the

inmates are deprived of the benefits of their property and receive nothing in

return; rather in exchange for the fees, the inmates receive the benefit of health

care . . . .”). Additionally, as discussed supra, adequate post-deprivation

procedures are in place, should Morris’s trust fund account be charged

unreasonably or erroneously.

Accordingly, Morris has not shown that the taking of funds from his

inmate trust fund account to pay for his medical care was unreasonable in light

of the goal of controlling the prison budget. Therefore, Morris has not

established that the district court erred in denying relief on his Fourth

Amendment claim.

4. Ex Post Facto Claim

Morris next contends that the health care services fee violates his right

to be free from ex post facto punishments. He concedes that his claim is

foreclosed by Supreme Court precedent, though he seeks to preserve his claim

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for review by the Supreme Court. 14 Morris does not articulate any argument

for why § 501.063 constitutes an ex post facto punishment, nor does he cite any

authority for his position. We conclude that Morris has waived this argument.

See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we

liberally construe the briefs of pro se appellants, we also require that

arguments must be briefed to be preserved.” (quoting Price v. Digital Equip.

Corp., 846 F.2d 1026, 1028 (5th Cir. 1988))); Sylvester v. Cain, 311 F. App’x

733, 735 (5th Cir. 2009) (per curiam) (unpublished) (“[A]lthough pro se briefs

are afforded liberal construction, even pro se litigants must brief arguments in

order to preserve them. [Defendant] may not incorporate by reference the

arguments that he made in his district court pleadings.” (internal citations

omitted)).

C. Miscellaneous Claims

Morris also argues that: (1) there are constitutional inadequacies in the

prison library; (2) § 501.063 violates the Bill of Attainder Clause; and (3) the

district court discriminated against him on the basis of his IFP status when it

warned him not to file additional frivolous complaints. We find each of these

arguments waived because Morris failed to raise it below. See XL Specialty

Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“An

argument not raised before the district court cannot be asserted for the first

time on appeal.”).

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

14He argues: “While Morris still contends that the statute in question is a violation of

the ex post facto clause, he also understands that the courts are bound by the Supreme Court

law. Morris does not waive this argument, but preserves such to petition the Supreme Court

on such unique argument at a later date, if necessary. Therefore, Morris incorporates his

previous arguments and objections raised in district court herein.”

20