Petition for Writ of Certiorari — Debbie Flowers, as Personal Representative of Toby Kristopher Payne, Petitioner v. James Sutterfield, Mental Health Manager, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Revised Opinion of the United States

Court of Appeals for the Fifth Circuit

(July 20, 2022) ...................................................... 1a

Original Opinion of the United States Court of

Appeals for the Fifth Circuit (June 22, 2022).... 7a

Memorandum Opinion of the United States

District Court for the Northern District of

Texas (September 2, 2020) ................................ 12a

REHEARING ORDER

Order of the United States Court of Appeals for

the Fifth Circuit Denying Petition for

Rehearing and Rehearing En Banc

(July 26, 2022) .................................................... 31a

OTHER DOCUMENTS

Fifth Circuit Docket

Case No: 20-10988 .............................................. 33a

Complaint, Relevant Excerpts and

Selected Exhibits ................................................ 42a

Plaintiff Declaration and Motion for

TRO and/or PI (December 8, 2019) ................. 105a

Plaintiff’s Motion for T.R.O. and/or Preliminary

Injunction with Inmate Declaration in

Support (September 5, 2020)........................... 113a

App.1a

REVISED OPINION OF THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(JULY 20, 2022)

REVISED JULY 20, 2022

ORIGINAL O PINION FILED JUNE 22, 2022

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

DEBBIE FLOWERS, as the Personal Representative

of Appellant Toby Kristopher Payne,

for Substitution in the Place and Stead of the

Appellant Toby Kristopher Payne,

Plaintiff-Appellant,

v.

JAMES SUTTERFIELD, Mental Health Manager;

JASON M. HARDEGREE, Major; DAMON B.

ANDREWS, Asst. Warden; DARRELL K. NASH,

Asst. Warden; KEVIN D. FOLEY, Sr. Warden,

Defendants-Appellees.

________________________

No. 20-10988

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:17-CV-211

Before: HIGGINBOTHAM, HIGGINSON,

and OLDHAM, Circuit Judges.

App.2a

STEPHEN A. HIGGINSON, Circuit Judge:

Debbie Flowers, as the personal representative of

her son Toby Kristopher Payne, who was incarcerated

in the Texas Department of Criminal Justice’s

Chronically Mentally Ill program and is now deceased,

appeals the dismissal as frivolous of Payne’s Eighth

Amendment, Americans with Disabilities Act, and

Rehabilitation Act of 1973 claims against various

TDCJ officials. for the following reasons, we AFFIRM.

I.

Toby Kristopher Payne was incarcerated in Texas

Department of Criminal Justice (TDCJ) facilities

from 2011 until his death in 2021. Payne was diagnosed

with schizoaffective disorder after he was arrested

for the murder of his two-year-old son, to which he later

pleaded guilty. In 2014, he was transferred from the

general population to an in-patient psychiatric ward

within the TDCJ. In October 2015, Payne was transferred

to the Chronically Mentally Ill (CMI) program. Between

being transferred to the CMI program and filing his

complaint in federal court in October 2017, Payne

filed numerous grievances regarding the conditions

in the CMI program.

In 2017, Payne filed a pro se lawsuit against

TDCJ Mental Health Manager James Sutterfield,

Major Jason M. Hardegree, Assistant Wardens Damon

B. Andrews and Darrell K. Nash, and Senior Warden

 Pursuant to 5th Circuit Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5th Circuit

Rule 47.5.4.

App.3a

Kevin D. Foley, claiming that his rights under the

Eighth Amendment, the Americans with Disabilities

Act (ADA), and the Rehabilitation Act of 1973 (RA)

were violated based on conditions in the TDCJ’s CMI

program. Payne contended that individuals in the CMI

program were kept in solitary confinement virtually

twenty-four hours per day; were offered limited

recreation, communication, entertainment, and hygiene

opportunities; received only limited group therapy,

without individual therapy or religious services; and

were served cold food. He further alleged that correctional officers were not adequately trained on how

to interact with people with psychiatric disorders and

that, as a result, they frequently provoked prisoners

into misbehaving. Payne sought monetary damages

and injunctive relief. Payne subsequently moved for

a temporary restraining order or preliminary injunction. In September 2020, the district court denied the

motion and dismissed Payne’s complaint as frivolous,

citing both 28 U.S.C. § 1915A(b)(1) and 28 U.S.C.

§ 1915(e)(2)(B)(i). Payne filed a timely notice of appeal.

Payne filed his brief in this court with counsel in

March 2021. Because Payne’s complaint was dismissed

prior to service of process, the defendants have not

appeared in this court. In November 2021, Payne’s

counsel sent notice to the court that Payne had died

by suicide while incarcerated. Counsel moved to substitute Payne’s personal representative, his mother,

Debbie Flowers, as Appellant, and a judge of this

court granted the motion.

II.

A provision of the Prison Litigation Reform Act

requires courts to dismiss a civil case brought in

App.4a

forma pauperis “at any time if the court determines

that . . . the action or appeal” is frivolous, malicious,

or fails to state a claim on which relief can be granted.

28 U.S.C. § 1915(e)(2)(B)(i). A separate provision

requires a district court to screen civil cases brought

by prisoners “before docketing” or “as soon as practicable after docketing” and to dismiss if, among other

reasons, the complaint is frivolous. 28 U.S.C. § 1915A

(b)(1). We review a district court’s dismissal of a complaint as frivolous for abuse of discretion. See Rogers

v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (reviewing dismissal as frivolous under § 1915(e)); Martin v.

Scott, 156 F.3d 578, 580 (5th Cir. 1998) (reviewing

dismissal as frivolous under § 1915A).

A complaint is frivolous “if it lacks an arguable

basis in law or fact.” Siglar v. Hightower, 112 F.3d 191,

193 (5th Cir. 1997). “[A] court may dismiss a claim as

factually frivolous only if the facts alleged are ‘clearly

baseless,’ a category encompassing allegations that

are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Denton v.

Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke

v. Williams, 490 U.S. 319, 325, 327, 328 (1989)). “A

complaint lacks an arguable basis in law if it is based

on an indisputably meritless legal theory.” Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999). When

reviewing a district court’s decision to dismiss a case

as frivolous, we consider

whether the plaintiff was proceeding pro se;

whether the court inappropriately resolved

genuine issues of disputed fact; whether the

court applied erroneous legal conclusions;

whether the court has provided a statement

explaining the dismissal that facilitates

“intelligent appellate review”; and whether

App.5a

the dismissal was with or without prejudice.

Denton, 504 U.S. at 34 (citations omitted). We have

said that in order to “facilitate meaningful, ‘intelligent

appellate review’ the district court’s reasons for a

section 1915[(e)] dismissal should reflect the NeitzkeDenton considerations.” Moore v. Mabus, 976 F.2d 268,

270 (5th Cir. 1992).

III.

In light of his death, Payne’s request for declarative

or injunctive relief is moot. See Copsey v. Swearingen,

36 F.3d 1336, 1339 n.3, 1341 (5th Cir. 1994); see also

Rhodes v. Stewart, 488 U.S. 1, 4 (1988). Though Payne’s

complaint also sought damages, the Prison Litigation

Reform Act requires a prisoner to show physical injury

before he can recover compensatory damages for any

psychological injury. 42 U.S.C. § 1997e(e); Harper v.

Showers, 174 F.3d 716, 719 (5th Cir. 1999). Though

we have never applied § 1997e(e) to an ADA/RA claim

in a published opinion, we have repeatedly done so in

unpublished opinions. See, e.g., Buchanan v. Harris,

2021 WL 4514694, at *2 (5th Cir. Oct. 1, 2021); Flaming

v. Alvin Cmty. Coll., 777 F. App’x 771, 772 (5th Cir.

2019). Payne’s complaint does not appear to allege

any physical injury.1

1 In Hutchins v. McDaniels, we held that, notwithstanding

§ 1997e(e), “prisoners may recover punitive or nominal damages

for a Constitutional violation” even in the absence of physical

injury. 512 F.3d 193, 198 (5th Cir. 2007). However, Payne did

not request punitive or nominal damages in his complaint. See

Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599, 603, 606

(5th Cir. 2008) (holding that pro se plaintiff’s claims were barred

by § 1997e(e) where complaint sought only compensatory damages and did not allege physical injury).

App.6a

Therefore, the judgment of the district court is

AFFIRMED.

App.7a

ORIGINAL OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

(JUNE 22, 2022)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

DEBBIE FLOWERS, as the Personal Representative

of Appellant Toby Kristopher Payne,

for Substitution in the Place and Stead of the

Appellant Toby Kristopher Payne,

Plaintiff-Appellant,

v.

JAMES SUTTERFIELD, Mental Health Manager;

JASON M. HARDEGREE, Major; DAMON B.

ANDREWS, Asst. Warden; DARRELL K. NASH,

Asst. Warden; KEVIN D. FOLEY, Sr. Warden,

Defendants-Appellees.

________________________

No. 20-10988

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:17-CV-211

Before: HIGGINBOTHAM, HIGGINSON,

and OLDHAM, Circuit Judges.

App.8a

STEPHEN A. HIGGINSON, Circuit Judge:

Debbie Flowers, as the personal representative of

her son Toby Kristopher Payne, who was incarcerated

in the Texas Department of Criminal Justice’s

Chronically Mentally Ill program and is now deceased,

appeals the dismissal as frivolous of Payne’s Eighth

Amendment, Americans with Disabilities Act, and

Rehabilitation Act of 1973 claims against various

TDCJ officials. For the following reasons, we AFFIRM.

I.

Toby Kristopher Payne was incarcerated in Texas

Department of Criminal Justice (TDCJ) facilities

from 2011 until his death in 2021. Payne was diagnosed

with schizoaffective disorder after he was arrested

for the murder of his two-year-old son, to which he

later pleaded guilty. In 2014, he was transferred

from the general population to an in-patient psychiatric

ward within the TDCJ. In October 2015, Payne was

transferred to the Chronically Mentally Ill (CMI)

program. Between being transferred to the CMI

program and filing his complaint in federal court in

October 2017, Payne filed numerous grievances

regarding the conditions in the CMI program.

In 2017, Payne filed a pro se lawsuit against

TDCJ Mental Health Manager James Sutterfield,

Major Jason M. Hardegree, Assistant Wardens Damon

B. Andrews and Darrell K. Nash, and Senior Warden

Kevin D. Foley, claiming that his rights under the

 Pursuant to 5th Circuit Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5th Circuit

Rule 47.5.4.

App.9a

Eighth Amendment, the Americans with Disabilities

Act (ADA), and the Rehabilitation Act of 1973 (RA)

were violated based on conditions in the TDCJ’s CMI

program. Payne contended that individuals in the

CMI program were kept in solitary confinement

virtually twenty-four hours per day; were offered

limited recreation, communication, entertainment, and

hygiene opportunities; received only limited group

therapy, without individual therapy or religious

services; and were served cold food. He further alleged

that correctional officers were not adequately trained

on how to interact with people with psychiatric disorders and that, as a result, they frequently provoked

prisoners into misbehaving. Payne sought monetary

damages and injunctive relief. Payne subsequently

moved for a temporary restraining order or preliminary injunction. In September 2020, the district court

denied the motion and dismissed Payne’s complaint

as frivolous, citing both 28 U.S.C. § 1915A(b)(1) and

28 U.S.C. § 1915(e)(2)(B)(i). Payne filed a timely notice

of appeal.

Payne filed his brief in this court with counsel in

March 2021. Because Payne’s complaint was dismissed

prior to service of process, the defendants have not

appeared in this court. In November 2021, Payne’s

counsel sent notice to the court that Payne had died

by suicide while incarcerated. Counsel moved to substitute Payne’s personal representative, his mother,

Debbie Flowers, as Appellant, and a judge of this

court granted the motion.

II.

A provision of the Prison Litigation Reform Act

requires courts to dismiss a civil case brought in

App.10a

forma pauperis “at any time if the court determines

that . . . the action or appeal” is frivolous, malicious, or

fails to state a claim on which relief can be granted.

28 U.S.C. § 1915(e)(2)(B)(i). A separate provision

requires a district court to screen civil cases brought

by prisoners “before docketing” or “as soon as

practicable after docketing” and to dismiss if, among

other reasons, the complaint is frivolous. 28 U.S.C.

§ 1915A(b)(1). We review a district court’s dismissal

of a complaint as frivolous for abuse of discretion. See

Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013)

(reviewing dismissal as frivolous under § 1915(e));

Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998)

(reviewing dismissal as frivolous under § 1915A).

A complaint is frivolous “if it lacks an arguable

basis in law or fact.” Siglar v. Hightower, 112 F.3d

191, 193 (5th Cir. 1997). “[A] court may dismiss a claim

as factually frivolous only if the facts alleged are

‘clearly baseless,’ a category encompassing allegations

that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Denton

v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting

Neitzke v. Williams, 490 U.S. 319, 325, 327, 328 (1989)).

“A complaint lacks an arguable basis in law if it is

based on an indisputably meritless legal theory.”

Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).

When reviewing a district court’s decision to dismiss

a case as frivolous, we consider

whether the plaintiff was proceeding pro se;

whether the court inappropriately resolved

genuine issues of disputed fact; whether the

court applied erroneous legal conclusions;

whether the court has provided a statement

explaining the dismissal that facilitates

App.11a

“intelligent appellate review”; and whether

the dismissal was with or without prejudice.

Denton, 504 U.S. at 34 (citations omitted). We have

said that in order to “facilitate meaningful, ‘intelligent

appellate review’ the district court’s reasons for a

section 1915[(e)] dismissal should reflect the NeitzkeDenton considerations.” Moore v. Mabus, 976 F.2d 268,

270 (5th Cir. 1992).

III.

In light of his death, Payne’s request for declarative

or injunctive relief is moot. See Copsey v. Swearingen,

36 F.3d 1336, 1339 n.3, 1341 (5th Cir. 1994); see also

Rhodes v. Stewart, 488 U.S. 1, 4 (1988). Though Payne’s

complaint also sought damages, the Prison Litigation

Reform Act requires a prisoner to show physical injury

before he can recover compensatory damages for any

psychological injury. 42 U.S.C. § 1997e(e); Harper v.

Showers, 174 F.3d 716, 719 (5th Cir. 1999). Though we

have never applied § 1997e(e) to an ADA/RA claim in

a published opinion, we have repeatedly done so in

unpublished opinions. See, e.g., Buchanan v. Harris,

2021 WL 4514694, at *2 (5th Cir. Oct. 1, 2021); Flaming

v. Alvin Cmty. Coll., 777 F. App’x 771, 772 (5th Cir.

2019). Payne’s complaint does not appear to allege

any physical injury.

Therefore, the judgment of the district court is

AFFIRMED.

App.12a

MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

(SEPTEMBER 2, 2020)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

________________________

TOBY KRISTOPHER PAYNE,

Plaintiff,

v.

JAMES SUTTERFIELD, ET AL.,

Defendants.

________________________

No. 2:17-CV-211-Z-BR

Before: Matthew J. KACSMARYK,

Unites States District Judge.

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff’s

Motion for TRO and PI, filed December 12, 2020

(ECF No. 34) (“Motion”). Plaintiff is incarcerated in

TDCJ’ s Bill Clements Unit, where he is assigned to

the unit’s program for chronically mentally ill inmates

(“CMI”). He alleges (1) the CMI placement violated

his due process rights; and (2) conditions within the

program violate Eighth Amendment, the ADA and

App.13a

the Rehabilitation Act of 1973. See Complaint § V, at

5 (ECF No. 3). He therefore petitions the Court to

enjoin Defendants via either a TRO or a preliminary

injunction. See id § VI, at 5. For the reasons below,

the Court DENIES the Motion, and DISMISSES

Plaintiffs claim as frivolous.

Background

Plaintiff is serving a lengthy state prison term

for murder.1 He initially was assigned to the TDCJ

Neal Unit but was transferred to the Montford Unit

after he attempted suicide. See ECF No. 3-1, at 5.

While in the Montford Unit, Plaintiff allegedly was

diagnosed with schizoaffective disorder and began

psychiatric treatment as part of the Chronic Mentally

Ill Program (“CMI”). See id. He progressed to the

least restrictive CMI level, which allowed him to

walk to the chow hall to get food, to watch television

in the dayroom with fellow inmates, to shower at a

convenient time in the evening, to attend art therapy,

and even to work as a janitor. See ECF No. 3-2, at 1.

That last privilege opened a Pandora’s Box for

Plaintiff in 2015. One evening in August, a Montford

Unit officer ordered Plaintiff to scrub walls and

sweep ceilings in the pod dayrooms and showers. See

ECF No. 3-3, at 2. Plaintiff believed ADA-related

work restrictions exempted him from such work and

consequently disobeyed the order. See id. at 2-3. He

was written up, TDCJ determined at a resulting

disciplinary hearing Plaintiff’s disobedience was un1 See Texas Dep’t of Crim. J., Offender Information: Toby Kristopher

Payne, https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=0836l639 (last visited Sept. 1, 2020).

App.14a

justified, and Plaintiff lost his Step 1 and Step 2

appeals of the determination. See id. at 3 & 5. Soon

after his unsuccessful final appeal, Plaintiff wrote

the U.S. Department of Justice Office of Civil Rights

(“DOJ OCR”) to complain of ongoing ADA violations

in the unit. See ECF No. 3-1, at 5-10.

Sometime in Fall 2015, TDCJ transferred Plaintiff

from the Montford Unit to the Clements Unit where

he currently is housed. Compare ECF No. 3-1, at 5,

with ECF No. 3-2, at 1. Within days of his transfer,

Plaintiff wrote DOJ OCR to complain about the

fewer privileges he enjoyed at his new unit. See ECF

No. 3-2, at 1-2. Among the perceived indignities, he

reported confinement to his cell for twenty-three

hours a day, a chance to shower only at approximately

five o’clock in the morning, and no access to religious

services or a phone. See id.

Over the next two years, Plaintiff filed at least

sixteen Step 1 grievances and seven Step 2 grievances

alleging abuse at the Clements Unit that targets

CMI inmates. 2 TDCJ investigated and dismissed

those allegations. See ECF Nos. 3-1 to 3-10 passim,

Dissatisfied with what he perceived had been a

biased and unjust disciplinary process, Plaintiff penned

at least thirty-seven letters to DOJ OCR on the same

matters. See ECF Nos. 3-1 to 3-10 passim. 3 He

2 Excluding duplicate forms, the Court identifies in Plaintiffs

attachments to the Complaint eleven Step 1 and five Step 2

grievances filed in 2016 and five Step 1 and two Step 2

grievances filed in 2017. See ECF Nos. 3-1 to 3-10. Because

Plaintiff filed the Complaint in October, the Court does not

count any forms filed the subsequent two months.

3 As in footnote 2 supra, the Court here counts merely those

letters Plaintiff attaches to his Complaint from January 2016 to

App.15a

solicited corroborating letters from three inmates,

one of whom starkly recounts abusive behavior toward

CMI inmates including gassing, withholding of therapy,

and deprivation of food. See id. ¶¶ 1-8, at 5-6.

This flurry of activity culminated in the Complaint,

which Plaintiff filed in late 2017. In the Complaint,

Plaintiff condenses his claims from the sixty documents

above into nine allegations about CMI conditions at

the Clements Unit:

(1) inmates languish in administrative segregation type housing, with solitary confinement

virtually all day and night;

(2) recreation time and showers are limited to

the early morning;

(3) barriers prevent physical contact between

inmates and their visitors;

(4) inmates are only permitted one phone call

every three months;

(5) inmates are barred from attendance at group

religious services;

(6) Defendants do not enforce inmate hygiene or

cell sanitation rules;

(7) Defendants do not provide inmates with

regular shaves and haircuts;

(8) inmates’ meals regularly arrive cold; and

(9) prison personnel provoke inmates into

misbehaving.

October 2017. This count therefore represents a floor for the

number of letters in fact written.

App.16a

See Complaint § V, at 5. Plaintiff then filed the Motion,

in which he sues Defendants in their supervisory

capacity and asks the Court to order TDCJ to (1)

comply with the ADA and the Rehabilitation Act; and

(2) stop violating the Due Process Clause and Eighth

Amendment. See id.

Legal Standards

A. Frivolous Claims

When a prisoner confined in any jail, prison, or

other correctional facility brings an action with respect

to prison conditions under any federal law, the Court

may evaluate the complaint and dismiss it without

service of process, Brewster v. Dretke, 587 F.3d 764,

767 (5th Cir. 2009), if it is frivolous, 4 malicious, fails

4 A claim is frivolous if it lacks an arguable basis in law or in fact.

Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see Denton v.

Hernandez, 504 U.S. 25 (1992). To determine whether a complaint is frivolous under 28 U.S.C. § 1915(d), the Court must

inquire whether there is an arguable “‘factual and legal basis of

constitutional dimension for the asserted wrong.’” Spears v.

McCotter, 766 F.2d 179, 181 (5th Cir. 1985) (quoting Watson v.

Ault, 525 F.2d 886, 892 (5th Cir. 1976)). The review of a complaint for factual frivolousness nevertheless is quite limited and

“only appropriate in the limited class of cases wherein the allegations rise to the level of the irrational or the wholly incredible,”

not just to the level of the unlikely. Booker, 2 F.3d at 114. Nor is

legal frivolousness synonymous with mere unlikeliness. The

Supreme Court of the United States and the United States

Court of Appeals for the Fifth Circuit repeatedly counsel district

courts against dismissing petitions that have some chance of

success. See, e.g., Denton v. Hernandez, 504 U.S. 25 (1992);

Neitzke v. Williams, 490 U.S. 319, 329 (1989); Booker, 2 F.3d at

116. That caution notwithstanding, a “claim against a defendant

who is immune from suit is frivolous because it is based upon

an indisputably meritless legal theory. See Neitzke, 490 U.S. at

App.17a

to state a claim upon which relief can be granted, or

seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915A; 28 U.S.C.

§ 1915(e)(2). The same standards will support dismissal

of a suit brought under any federal law by a prisoner

confined in any jail, prison, or other correctional

facility, where such suit concerns prison conditions.

See 42 U.S.C. § 1997e(c)(1). A Spears hearing need

not be conducted for every pro se complaint. Wilson

v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991). 5

B. Supervisor Liability Claims

In Section 1983 suits, government officials are

not held liable for the unconstitutional conduct of

their subordinates solely on a theory of respondeat

superior or vicarious liability. Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009). Nor are supervisory officials

subject to vicarious liability under Section 1983 for

the omissions of their subordinates. See Alderson v.

Concordia Parish Correctional Facility, 848 F.3d 415,

419-20 (5th Cir. 2017). Consequently, absent direct

personal participation in the alleged constitutional

violation, a plaintiff must prove each individual

defendant either implemented an unconstitutional

policy that directly resulted in injury to the plaintiff

or failed to properly train a subordinate employee.

See Pena v. City of Rio Grande City, 879 F.3d 613,

327; Booker, 2 F.3d at 116.

5 Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) (“Of

course, our discussion of Spears should not be interpreted to

mean that all or even most prisoner claims require or deserve a

Spears hearing. A district court should be able to dismiss as

frivolous a significant number of prisoner suits on the complaint

alone or the complaint together with the Watson questionnaire.”)

App.18a

620 (5th Cir. 2018); Thompkins v. Belt, 828 F.2d 298,

303-04 (5th Cir. 1987).

C. Cruel and Unusual Punishment

Even though the Constitution does not require

that custodial inmates be housed in comfortable

prisons, the Eighth Amendment’s prohibition against

cruel and unusual punishment does require that

prisoners be afforded “humane conditions of confinement” including adequate food, shelter, clothing, and

medical care. Taylor v. Stevens, 946 F.3d 211, 219 (5th

Cir. 2019) (internal marks removed). Prison staff

may not deprive prisoners of the basic elements of

hygiene or inflict wanton and unnecessary pain by

depriving mentally ill patients of needed treatment.

See Perniciaro v. Lea, 901 F.3d 241, 258-59 (5th Cir.

2019). To establish an Eighth Amendment violation,

a prisoner must demonstrate a prison official was

deliberately indifferent to conditions that resulted in

extreme deprivation of the “minimal civilized measure

of life’s necessities.” Arenas v. Calhoun, 922 F.3d

616, 620 (5th Cir. 2019) (internal marks removed).

To establish deliberate indifference, the prisoner

must show the official knew of and disregarded an

excessive risk to inmate health or safety; the official

must have been both aware of facts from which the

inference could be drawn that a substantial risk of

serious harm exists, and he must have drawn the

inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

App.19a

D. Americans with Disabilities Act of 1990

and Rehabilitation Act of 1973

1. Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990

broadly protects disabled individuals and prohibits

any public entity from discriminating against the

disabled. See 42 U.S.C. §§ 12131-32. It covers as a

disability any (1) physical or mental impairment that

(2) substantially limits (3) one or more major life

activities. 42 U.S.C. § 12102(1)(A). The Supreme Court

of the United States narrowly construed these requirements in 2002 to hold that a disability is protected

under the ADA only if it effects not only work activities but also similar non-work activities. See Toyota

Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,

199-203 (2002).

Congress amended the ADA expressly to overturn

that narrow construction. See Pub. L. No. 110-325,

§ 2(b)(4) (2009). The amendments mandate a particularly broad construction of “substantial limits” and

“major life activities.” Id. § 3(4). “Substantial limits”

include any impairment that substantially limits one

activity even if it does not limit similar activities. Id.

§ 3(4)(C). “Major life activities” include “caring for

oneself, performing manual tasks, seeing, hearing,

eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working.” Id. § 3(2)(A).

A condition may qualify as an ADA disability even if

it is not severe or permanent. See id. § 3(4)(D).

App.20a

2. Rehabilitation Act of 1973

The Rehabilitation Act was originally passed in

1920 as a measure to help disabled military veterans

reintegrate into civilian society after World War I. See

CONGRESSIONAL RESEARCH SERVICE, REHABILITATION

ACT OF 1973, at 1 (Feb. 25, 2005). Amendments to the

Act in 1973 expanded it to provide comprehensive

vocational rehabilitation services for all American

individuals with “substantial” physical or mental

disabilities. Pub. L. No. 93-112, § 7(6), 87 Stat. 357.

As codified after subsequent amendments, the Rehabilitation Act provides that no disabled individual “solely

by reason of her or his disability [shall] be excluded

from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or

activity receiving Federal financial assistance or under

any program or activity conducted by any Executive

agency or by the United States Postal Service.” 29

U.S.C. § 794(a). The Rehabilitation Act remains good

law, but its protections largely are subsumed by the

broader protections of the ADA. See Robyn Levin,

Responsiveness to Difference: ADA Accommodations

in the Course of an Arrest, 69 STAN. L. REV. 269, 27778 & n.44 (2017). Because of the overlap, plaintiffs

often make identical claims under both statutes. See,

e.g., Hainze v. Richards, 207 F.3d 795, 797 (5th Cir.

2000).

3. Elements of Claims and Available

Remedies

To make out a prima facie case under the ADA

or the Rehabilitation Act, a plaintiff must show “(1)

that he is a qualified individual within the meaning

of the ADA; (2) that he is being excluded from

App.21a

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

disability.” Cadena v. El Paso County, 946 F.3d 717,

723-24 (5th Cir. 2020) (internal marks omitted). A

plaintiff also must show the entity knew of the disability, either because he requested an accommodation

or because the nature of the limitation was open and

obvious. Id. at 724.

The remedies, procedures, and rights available

under the Rehabilitation Act parallel those available

under the ADA. Delano-Pyle v. Victoria Cty., 302

F.3d 567, 574 (5th Cir. 2002). A plaintiff has a right

to reasonable accommodations, i.e. those that do not

impose undue financial or administrative burdens or

“fundamentally alter the nature of the service, program,

or activity.” 28 C.F.R. § 35.130(b)(7); Frame v. City of

Arlington, 657 F.3d 215, 232 (5th Cir. 2011) (en banc).

E. TROs and Preliminary Injunctions

The standard for a TRO is generally the same as

the standard for a preliminary injunction. See Kidd

v. Director of Federal Bureau of Prisons, 2020 WL

759298, at *3 (N.D. Tex. Feb. 14, 2020) (internal marks

removed). A federal court may issue a preliminary

injunction to protect a movant’s rights until his or

her case has been finally determined. See Fed. R.

Civ. P. 65(a); 11A CHARLES A. WRIGHT & ARTHUR R.

MILLER, FED. PRAC. & PROC. CIV. § 2941 (3d ed. 2020).

To obtain a preliminary injunction, a movant must

prove “(1) a substantial likelihood of success on the

merits, (2) a substantial threat of irreparable injury

App.22a

if the injunction is not issued, (3) that the threatened

injury if the injunction is denied outweighs any harm

that will result if the injunction is granted, and (4)

that the grant of an injunction will not disserve the

public interest.” Robinson v. Hunt Country, Texas,

921 F.3d 440, 451 (5th Cir. 2019). A preliminary

injunction is an extraordinary remedy requiring the

applicant to unequivocally show the need for its

issuance. Sepulvado v. Jindal, 729 F.3d 413, 417 (5th

Cir. 2013) (internal marks omitted), cert. denied, 134

S. Ct. 1789 (2014). The movant must prove all four

elements. Benisek v. Lamone, 138 S. Ct. 1942, 1943

(2018); Doe Iv. Landry, 909 F.3d 99, 106 (5th Cir.

2018).

Analysis

The Court’s analysis of the Motion tracks the

four Benishek factors listed above. If Plaintiff fails to

satisfy even one Benishek factor, the Court may

logically conclude he fails to meet his burden for

granting a TRO or preliminary injunction on the

corresponding claim even if he proves the other

factors.6 Cf. 138 S. Ct. at 1943-44. After thorough

consideration of the record, the Court finds Plaintiff

fails to prove substantial likelihood of success on the

merits of any of his claims. It thus DENIES Plaintiff’s

6 Incidentally, this result holds true mathematically even if one

of the criteria contains an unknown or non-zero value. expressed

in the language of symbolic logic, π1n−1 𝑝n = 0 ⇒ π1n 𝑝n = 0, ∀p ∈ ℝ,

where 𝑝 is the probability of success on factor n. In other words:

If the product of a series of probabilities is equal to zero, then it

is logically implied and logically necessary that multiplying by

an additional probability will result in a product of zero for any

probability that falls into a set of all the real numbers.

App.23a

request for both a TRO and a preliminary injunction

on each claim.

A. ADA and Rehabilitation Act Claims

The Court first considers Plaintiff’s ADA and

Rehabilitation Act claims. Under Fifth Circuit precedent, he is entitled to no legal remedy on those

claims unless he shows the Clements Unit staff knew

about his disability at the time of their purported

offenses, either because (1) he had requested an

accommodation; or (2) the nature of his disability

was open and obvious. See Cadena, 946 F.3d at 724.

Nowhere does Plaintiff adduce evidence he ever

requested an ADA or Rehabilitation Act accommodation. Nor is the nature of his disability open and

obvious. He is housed in the Clements Unit’s program

for the chronically mentally ill, but mental illness by

itself does not secure one ADA protection; the mental

illness must (1) substantially limit (2) one or more

major life activities. 42 U.S.C. § 12102(1)(A). The

very success Plaintiff asserts he had after the onset

of his mental illness but before his transfer to the

Clements Unit—as well as the diligence and cogency

with which he has pursued his grievances since the

transfer—suggests no such limitation exists. Finding

no contrary evidence in the record, the Court finds

Plaintiff is not substantially likely to prevail on the

merits of these claims. It therefore denies him a TRO

or preliminary injunction on them.

B. Supervisory Liability Claims

The Court next considers Plaintiff s supervisory

liability claims. Plaintiff does not assert supervisor

Defendants (1) directly participated in any alleged

App.24a

constitutional violations against him; (2) implemented

an unconstitutional policy that directly resulted in

his alleged injuries; or (3) failed to properly train

Clements Unit subordinates. See Pena, 879 F.3d at

620. That failure proves fatal to these claims because

Section 1983 suits may not rest solely upon a theory

of vicarious liability. Ashcroft v. Iqbal, 556 U.S. at

676. Because Plaintiff fails to demonstrate he is substantially likely to prevail on the merits of these

claims, the Court denies him a TRO or preliminary

injunction on them.

C. Due Process Claims

Plaintiff’s due process claims distill into a challenge

to his current housing assignment and classification

in the Clements Unit’s CMI program. Yet inmates

have no protectable property or liberty interest in

custodial classifications. See Alexander v. Texas Dep’t

of Crim. Justice, 951 F.3d 236, 240 (5th Cir. 2020).

Moreover, administrative segregation is incidental to

prison life and almost never a ground for a constitutional claim, insofar as it rarely deprives an inmate

of a cognizable liberty interest. See Wilkerson v.

Goodwin, 774 F.3d 845, 852-53 (5th Cir. 2014);

Hernandez v. Velasquez, 522 F.3d 556, 562-63 (5th Cir.

2008). Because Plaintiff therefore fails to allege a

cognizable and redressable injury-in-fact, he is unlikely

to succeed on the merits of these claims. The Court

therefore denies him a TRO or preliminary injunction

on them.

D. Eighth Amendment Claims

Lastly, the Court considers Plaintiff’s claims he

has endured cruel and unusual punishment since his

App.25a

transfer into the Clements Unit. Weighing in his

favor, the Eighth Amendment requires prisons to

afford inmates adequate food, shelter, clothing, medical

care, meaningful opportunities for basic hygiene, and

treatment for mental illness. See Taylor, 946 F.3d at

219; Perniciaro, 901 F.3d at 258-59. Weighing against

him, though, the amendment also requires an inmate

to demonstrate a prison official was deliberately

indifferent to conditions that resulted in extreme

deprivation of the “minimal civilized measure of life’s

necessities.” Arenas, 922 F.3d at 620 (internal marks

removed). To establish deliberate indifference, the

prisoner must show the official knew of and disregarded

an excessive risk to inmate health or safety. See

Farmer v. Brennan, 511 U.S. at 837. On balance, the

Court finds that Plaintiff fails to demonstrate such

extreme deprivation and deliberate indifference.

Accordingly, the Court concludes Plaintiff fails to

prove substantial likelihood of success on these claims

that would warrant a TRO or preliminary injunction.

1. Early morning recreation and showers

Plaintiff alleges he faces cruel and unusual

punishment by needing to shower and recreate early

in the morning. Research that recently won the Nobel

Prize for Medicine suggests genetic predisposition to

being a night owl can make one mourn the morning

as both cruel and unusual. 7 Yet such feelings do not

facially amount to constitutional violations insofar as

an early-morning wakeup does not automatically result

7 Press Release, The Nobel Assembly at Karolinska Institute

(June 2018), https://www.nobelprize.org/uploads/2018 /06/press39.pdf (last visited Sept. 1,2020) (reporting discoveries of mechanisms controlling circadian rhythm).

App.26a

in extreme deprivations of minimal life necessities.

See Arenas, 922 F.3d at 620; cf Brumley v. Livingston,

459 Fed. Appx 470, 472 (5th Cir. 2012) (dismissing

claims based on early-morning showers). As applied

to Plaintiff, any harm from early reveille is unlikely

irreparable; if Plaintiff is confined to his cell for

twenty-three hours a day as he asserts, he likely can

go to bed earlier in the evening or nap during the

day. Lastly, enjoining early morning activities might

in fact harm Plaintiff because an early wake time is

strongly correlated with improved mental health

outcomes for those diagnosed with schizophrenia. 8

2. No Contact Visitation Policy

Plaintiff asserts the Clements Unit places physical

barriers between mentally ill inmates and their visitors.

Yet such barriers fall far short of a violation of the

Eighth Amendment, The Supreme Court of the United

States has made clear a prison may for good cause

deprive an inmate of any visitation for years at a

time, in part because freedom of association is legitimately curtailed in a prison context. See Overton v.

Bazzetta, 539 U.S. 126, 131-32 (2003). A fortiori, an

inmate may for good cause have restrictions placed

on visitation he does enjoy. Cf Martin v. Scott, 156

F.3d 578, 579 (5th Cir. 1998) (per curiam) (finding no

claim where a prisoner claimed that officials limited

his visitation time). Plaintiff accordingly is not substantially likely to prevail on the merits of this claim and

8 See Samuel E. Jones et al., Genome-wide Association Analyses

of Chronotype in 697,828 Individuals Provides Insights into

Circadian Rhythms, 10 NATURE COMMUNICATIONS 1, 5-6 & fig.5

(Jan. 2019), https://www.nature.com/articles/s41467-018-082597.pdf (last visited Sept. 1, 2020).

App.27a

cannot be granted a TRO or preliminary injunction on

it.

3. Limited Phone Calls

During this time of pandemic and social distancing,

the Court recognizes the importance for many people

of remote contact with family and friends. Yet Plaintiff

does not suffer an Eighth Amendment injury even if

he accurately states he is only permitted one phone

call every three months. Restrictions on inmate

communication with the outside world are not extreme

deprivations unless an inmate is held completely

incommunicado for an extended period. See Hill v.

Estelle, 537 F.2d 214, 215 (5th Cir. 1976). Because

Plaintiff thus does not prove a substantial likelihood

of prevailing on this claim, the Court denies him a

TRO or preliminary injunction on it.

4. No Group Religious Services

Freedom of religious exercise can be a thorny

issue in a prison context, and Fifth Circuit standards

for how much and how long a prison may limit

segregated inmates’ access to group religious services

are not always immediately reconcilable. See, e.g.,

Bailey v. Fisher, 647 Fed. Appx 472, 476 (5th Cir.

2016). Yet the Court need not unravel this Gordian

Knot for two simple reasons. First, Plaintiff nowhere

alleges he ever has sought to attend any religious

services or been denied any religious practice and so

does not have standing to assert this claim. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Second, the Supreme Court recently held the State

may temporarily limit civilian gatherings to minimize

and eliminate legitimate contagion risks during

App.28a

pandemics. See generally South Bay United Pentecostal

Church v. Newsom, 140 S. Ct. 1613, 1613 (2020)

(mem.); see also Spell v. Edwards, 962 F.3d 175, 18182 (Ho, J., concurring) (“Officials may take appropriate emergency public health measures to combat a

pandemic,” including assembly rights, even though

nothing “supports the view that an emergency displaces

normal constitutional standards.”); In re Abbott, 954

F.3d 772, 784-85 (5th Cir. 2020) (Duncan, J.) (citing

cases supporting principle that public health crises

may temporarily permit extraordinary government

intrusion on constitutional liberties to combat contagion).

Given widespread COVID-19 infection in American

prisons, such restrictions on inmate gatherings aimed

at preventing contagion may temporarily be per missible there as well. As such, Plaintiff does not on

the record demonstrate a substantial likelihood of

prevailing on the merits of this claim, and the Court

denies him a TRO or preliminary injunction on it.

5. Personal Hygiene Enforcement, Lack

of Access to Regular Barbery

Plaintiff inveighs against Defendants for purportedly not enforcing inmate hygiene or cell sanitation

rules, including not providing inmates with regular

shaves and haircuts. See Complaint § V, at 5. Even if

true, a lack of barbery does not in se prove barbarity.

Prison staff may not deprive prisoners of the basic

elements of hygiene. See Perniciaro, 901 F.3d at 258-59.

But it is unclear from Plaintiff’s filings and grievances

what, if anything, prison personnel are doing to

“deprive” Plaintiffs fellow inmates of hygiene supplies

or opportunities. In fact, Plaintiff himself asserts

showers are made available to CMI inmates early

every morning. Because he has alleged no injury-in-

App.29a

fact and does not trace the injury to any action by

Clements Unit staff, Plaintiff is unlikely to have

standing on this claim and is therefore substantially

unlikely to prevail on it. The Court therefore denies

him a TRO or preliminary injunction on this claim.

6. Cold Food at Meals

The Eighth Amendment requires that inmates

receive adequate and nutritious food. See Farmer,

511 U.S. at 832; Taylor, 946 F.3d at 219. But the

Fifth Circuit has declined to encompass within that

right a right that every meal be an inferno. See Herman

v. Holiday, 238 F.3d 660, 666 (5th Cir. 2001); see also

Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1984)

(“complaints about cold and poorly prepared food

must fail”). As such, Plaintiff is not substantially

likely to prevail on the merits of this claim and thus

cannot receive a TRO or preliminary injunction on it.

7. Provocation of Inmates

Plaintiff asserts prison guards provoke CMI

inmates into misbehaving. See Complaint § V, at 5.

Yet the record does not contain an allegation that

Plaintiff has ever been provoked into misbehavior by

a prison guard. He therefore has no demonstrated

injury-in-fact and does not prove he is substantially

likely to prevail on the merits of this claim. The Court

therefore denies him a TRO or preliminary injunction

on this claim.

In summary, Plaintiff has failed to prove he is

substantially likely to prevail on any of his statutory

or constitutional claims. He therefore logically cannot

satisfy all four Benishek factors prerequisite for a

TRO or a preliminary injunction. The Court DENIES

App.30a

the Motion and DISMISSES Plaintiffs Complaint as

frivolous.

SO ORDERED.

/s/ Matthew J. Kacsmaryk

Unites States District Judge

September 2, 2020

App.31a

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

DENYING PETITION FOR REHEARING

AND REHEARING EN BANC

(JULY 26, 2022)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

DEBBIE FLOWERS, as the Personal Representative

of Appellant Toby Kristopher Payne, for Substitution

in the Place and Stead of the Appellant

Toby Kristopher Payne,

Plaintiff-Appellant,

v.

JAMES SUTTERFIELD, Mental Health Manager;

JASON M. HARDEGREE, Major; DAMON B.

ANDREWS, Asst. Warden; DARRELL K. NASH,

Asst. Warden; KEVIN D. FOLEY, Sr. Warden,

Defendants-Appellees.

________________________

No. 20-10988

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:17-CV-211

Before: HIGGINBOTHAM, HIGGINSON,

and OLDHAM, Circuit Judges.

App.32a

PER CURIAM:

The petition for panel rehearing is DENIED.

Because no member of the panel or judge in regular

active service requested that the court be polled on

rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R.

35), the petition for rehearing en banc is DENIED.

App.33a

FIFTH CIRCUIT DOCKET

CASE NO: 20-10988

GENERAL DOCKET UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

________________________

Court of Appeals Docket #: 20-10988

Nature of Suit: 3550 Prisoner - Civil Rights

Flowers v. Sutterfield

Appeal From: Northern District of Texas, Amarillo

Fee Status: Fee Paid

Docketed: 09/29/2020

Termed: 06/22/2022

Originating Court Information:

District: 0539-2: 2 : 17-CV-211

Originating Judge:

Matthew Joseph Kacsmaryk, U.S. District Judge

Date Filed: 10/30/2017

Date NOA Filed: 09/23/2020

Date Rec’d COA: 09/23/2020

________________________

09/29/2020

PRISONER CASE WITH COUNSEL

docketed. NOA filed by Appellant Mr. Toby

Kristopher Payne [20-10988] (MFY) [Entered:

09/29/2020 08:57 AM]

10/05/2020

INITIAL CASE CHECK by Attorney Advisor

complete, Action: Case OK to Process.

[9413907-2] Initial AA Check Due satisfied.

Fee due on 10/20/2020 for Appellant Toby

Kristopher Payne. [20-10988] (RSM)

[Entered: 10/05/2020 12:12 PM]

App.34a

12/06/2020

APPEARANCE FORM for the court’s review.

Lead Counsel? Yes. [20-10988] (Samuel Weiss)

[Entered: 12/06/2020 07:06 PM]

12/06/2020

FEE PAID by Fee Amount: $505.00 Receipt

Number: A05-235070-625. Fee deadline

satisfied [20-10988] REVIEWED AND/OR

EDITED-The original text prior to review

appeared as follows: FEE PAID by Appellant

Mr. Toby Kristopher Payne for noa filed on

09/29/2020. Fee Amount: $505.00 Receipt

Number: A05-235070-625. [20-10988]

(Samuel Weiss) [Entered: 12/06/2020 07:10

PM]

12/08/2020

APPEARANCE FORM FILED by Attorney(s)

Samuel Weiss for party(s) Appellant Toby

Kristopher Payne, in case 20-10988 [2010988] (RSM) [Entered: 12/08/2020 08:59 AM]

12/09/2020

ELECTRONIC RECORD ON APPEAL

REQUESTED from District Court for 2:17CV-211. Electronic ROA due on 12/24/2020.

[20-10988] (LEF) [Entered: 12/09/2020 09:16

AM]

12/23/2020

ELECTRONIC RECORD ON APPEAL

FILED. Admitted Exhibits on File in District

Court? No. Video/Audio Exhibits on File in

District Court? No Electronic ROA deadline

satisfied. [20-10988] (PAC) [Entered: 12/23/

2020 08:53 AM]

App.35a

12/23/2020

BRIEFING NOTICE ISSUED A/Pet’s Brief

Due o n 02/01/2021 for Appe llant To by

Kristopher Payne. [20-10988] (PAC) [Entered:

12/23/2020 09:02 AM]

01/21/2021

UNOPPOSED MOTION filed by Appellant

Mr. Toby Kristopher Payne to extend time

to file brief as appellant [9486499-2]. Date

of service: 01/21/2021 via clerk-Attorney for

Appellant: Weiss [20-10988] (Samuel Weiss)

[Entered: 01/21/2021 10:50 AM]

01/21/2021

CLERK ORDER granting Motion to extend

time to file appellant’s brief filed by Appellant

Mr. Toby Kristopher Payne [9486499-2]

A/Pet’s Brief deadline updated to 03/15/2021

for Appellant Toby Kristopher Payne [2010988] (LEF) [Entered: 01/21/2021 03:17 PM]

03/08/2021

APPEARANCE FORM for the court’s review.

Lead Counsel? Yes. [20-10988] (Daniel Scott

Harawa) [Entered: 03/08/2021 08:44 AM]

03/09/2021

APPEARANCE FORM FILED by Attorney(s)

Daniel Scott Harawa for party(s) Appellant

Toby Kristopher Payne, in case 20-10988

[20-10988] (RSM) [Entered: 03/09/2021 01:33

PM]

App.36a

03/15/2021

APPELLANT’S BRIEF FILED # of Copies

Provided: 0 A/Pet’s Brief deadline satisfied.

Record Excerpts due on 03/30/2021 for Appellant Toby Kristopher Payne [20-10988]

REVIEWED AND/OR EDITED-The original

text prior to review appeared as follows:

APPELLANT’S BRIEF FILED by Mr. Toby

Kristopher Payne. Date of service: 03/15/2021

via email-Attorney for Appellants: Harawa,

Weiss [20-10988] (Daniel Scott Harawa)

[Entered: 03/15/2021 11:03 AM]

03/16/2021

BRIEFING COMPLETE. [20-10988] (RSM)

[Entered: 03/16/2021 03:06 PM]

03/22/2021

SUFFICIENT RECORD EXCERPTS FILED.

Sufficient Record Excerpts deadline satisfied

[20-10988] REVIEWED AND/OR EDITEDThe original text prior to review appeared

as follows: RECORD EXCERPTS FILED.

Record Excerpts NOT Sufficient as they

require INSUFFICIENT FOR: OPTIONAL

CONTENTS EXCEED THE 40 PAGE LIMITATION. Optional contents exceed page limitations by 25 pages. Instructions to Attorney:

PLEASE READ THE ATTACHED NOTICE

FOR INSTRUCTIONS ON HOW TO

REMEDY THE DEFAULT. # of Copies

Provided: 0 Record Excerpts deadline

satisfied. Sufficient Record Excerpts due on

04/07/2021 for Appellant Toby Kristopher

Payne [20-10988] REVIEWED AND/OR

EDITED-The original text prior to review

App.37a

appeared as follows: RECORD EXCERPTS

FILED by Appellant Mr. Toby Kristopher

Payne. Date of service: 03/22/2021 via emailAttorney for Appellants: Harawa, Weiss

[20-10988] (Daniel Scott Harawa) [Entered:

03/22/2021 11:14 AM]

04/01/2021

PROPOSED SUFFICIENT RECORD

EXCERPTS filed by Appellant Mr. Toby

Kristopher Payne [9531344-2] Date of service:

04/01/2021 via email-Attorney for Appellants:

Harawa, Weiss [20-10988] (Daniel Scott

Harawa) [Entered: 04/01/2021 11:12 AM]

11/19/2021

SUFFICIENT UNOPPOSED MOTION to

substitute Toby Kristopher Payne with Debbie

Flowers. Document is insufficient for the

following reasons: a separate suggestion of

death is also required in accordance with

FRAP 43(a). Sufficient Mtn/Resp/Reply due

on 12/02/2021 for Appellant Toby Kristopher

Payne [20-10988] REVIEWED AND/OR

EDITED-The original text prior to review

appeared as follows: UNOPPOSED MOTION

filed by Appellant Mr. Toby Kristopher Payne

to substitute Toby Payne with Debbie Flowers.

Date of service: 11/19/2021 via email-Attorney

for Appellants: Harawa, Weiss [20-10988]

(Samuel Weiss) [Entered: 11/19/2021 03:06

PM]

11/22/2021

SUGGESTION OF DEATH on behalf of

Appellant Mr. Toby Kristopher Payne [2010988] REVIEWED AND/OR EDITED-The

App.38a

original text prior to review appeared as

follows: SUGGESTION OF DEATH on behalf

of Appellant Mr. Toby Kristopher Payne

Date of Service: 11/22/2021 via email-Attorney

for Appellants: Harawa, Weiss [20-10988]

(Samuel Weiss) [Entered: 11/22/2021 02:18

PM]

11/23/2021

The Motion to substitute party filed by

Appellant Mr. Toby Kristopher Payne in 2010988 [9717080-2] has been made sufficient.

Sufficient Mtn/Resp/Rpl deadline satisfied.

[20-10988] (LEF) [Entered: 11/23/2021 01:10

PM]

11/26/2021

COURT ORDER granting Motion to substitute party filed by Appellant Mr. Toby

Kristopher Payne [9717080-2] Appellant Toby

Kristopher Payne in 20-10988 substituted

by Appellant Debbie Flowers in 20-10988

[20-10988] (MFY) [Entered: 11/26/2021 03:42

PM]

04/11/2022

PAPER COPIES REQUESTED for the

Appellant Brief filed by Appellant Mr. Toby

Kristopher Payne in 20-10988 [9525569-2],

Record Excerpts filed by Appellant Mr. Toby

Kristopher Payne in 20-10988 [9531344-2].

Paper Copies of Brief due on 04/18/2022 for

Appellant Debbie Flowers. Paper Copies of

Record Excerpts due on 04/18/2022 for

Appellant Debbie Flowers. [20-10988] (LEF)

[Entered: 04/11/2022 08:55 AM]

App.39a

04/19/2022

Paper copies of Appellant Brief filed by

Appellant Mr. Toby Kristopher Payne in 2010988 received. Paper copies match electronic

version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline

satisfied. [20-10988] (LLL) [Entered: 04/19/

2022 04:46 PM]

04/19/2022

Paper copies of Record Excerpts filed by

Appellant Mr. Toby Kristopher Payne in 2010988 received. Paper copies match electronic

version of document? Yes # of Copies Provided: 4. Paper Copies of Record Excerpts

due deadline satisfied. [20-10988] (LLL)

[Entered: 04/19/2022 04:48 PM]

05/17/2022

COURT DIRECTIVE ISSUED to file supplemental brief [9849500-2] A/Pet Supplemental

Brief due on 05/20/2022 for Appellant Debbie

Flowers. [20-10988] (LEF) [Entered:

05/17/2022 04:43 PM]

05/20/2022

APPELLANT’S SUPPLEMENTAL LETTER

BRIEF FILED. # of Copies Provided: 0

A/Pet’s Supplemental Brief deadline satisfied

[20-10988] REVIEWED AND/OR EDITEDThe original text prior to review appeared

as follows: APPELLANT’S SUPPLEMENTAL

BRIEF FILED by Debbie Flowers. Date of

service: 05/20/2022 via email-Attorney for

Appellants: Harawa, Weiss [20-10988] (Daniel

Scott Harawa) [Entered: 05/20/2022 10:23

AM]

App.40a

06/22/2022

UNPUBLISHED OPINION FILED. [20-10988

Affirmed] Judge: PEH, Judge: SAH, Judge:

ASO. Mandate issue date is 07/14/2022 [2010988] (NFD) [Entered: 06/22/2022 01:30 PM]

06/22/2022

JUDGMENT ENTERED AND FILED. [2010988] (NFD) [Entered: 06/22/2022 01:33 PM]

07/06/2022

PETITION for rehearing [9886761-2] Number

of Copies: 0. Mandate issue date canceled.

[20-10988] REVIEWED AND/OR EDITEDThe original text prior to review appeared as

follows: PETITION filed by Appellant Debbie

Flowers for rehearing [9886761-2]. Date of

Service: 07/06/2022 via email-Attorney for

Appellants: Harawa, Weiss [20-10988]

(Samuel Weiss) [Entered: 07/06/2022 08:47

PM]

07/06/2022

PETITION for rehearing en banc [98867622] Number of Copies: 0. [20-10988]

REVIEWED AND/OR EDITED-The original

text prior to review appeared as follows:

PETITION filed by Appellant Debbie Flowers

for rehearing en banc [9886762-2]. Date of

Service: 07/06/2022 via email-Attorney for

Appellants: Harawa, Weiss [20-10988] (Samuel

Weiss) [Entered: 07/06/2022 08:48 PM]

07/14/2022

DOCUMENT RECEIVED-NO ACTION

TAKEN. No action will be taken at this time

on the paper copies of rehearing received

App.41a

from Appellant Debbie Flowers because

paper copies are unnecessary. Paper copies

were not requested by the Court [20-10988]

(LEF) [Entered: 07/15/2022 02:09 PM]

07/20/2022

TECHNICAL REVISION MADE TO

OPINION. [9875929-2] [20-10988] (NFD)

[Entered: 07/20/2022 09:11 AM]

07/26/2022

COURT ORDER denying Petition for

rehearing filed by Appellant Debbie Flowers

[9886761-2]; denying Petition for rehearing

en banc filed by Appellant Debbie Flowers

[9886762-2] Without Poll. Mandate issue date

is 08/03/2022 [20-10988] (LEF) [Entered:

07/26/2022 08:24 AM]

08/03/2022

MANDATE ISSUED. Mandate issue date

satisfied. [20-10988] (MVM) [Entered: 08/03/

2022 08:15 AM]

App.42a

COMPLAINT, RELEVANT EXCERPTS

AND SELECTED EXHIBITS

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

________________________

TOBY KRISTOPHER. PAYNE, #1720023

Plaintiff’s name and ID Number,

French M. Robertson Unit

12071 FM 3522

Abilene, TX 79601

Place of Confinement

v.

JAMES SUTTERFIELD, William P. Clements Unit,

9601 Spur 591, Amarillo, TX 79107-9606

(806) 381-7080, Fax 381-5030,

JASON M. HARDEGREE,

William P. Clements Unit,

9601 Spur 591, Amarillo, TX 79107-9606

(806) 381-7080, Fax 381-5030,

KEVIN D. FOLEY, William P. Clements Unit,

9601 Spur 591, Amarillo, TX 79107-9606

(806) 381-7080, Fax 381-5030

Defendant’s name and address.

________________________

Case No. 2:17-CV-211-J

App.43a

Form to be Used by a Prisoner in Filing a Complaint

Under the Civil Rights Act, 42 U.S.C. § 1983

[...]

V.

Statement of Claim:

Involving patients/offenders in the Chronic

Mentally Ill (CMI) treatment program; kept in solitary

confinement virtually 24 hours a day; only offers

recreation & showers at 5:30am, when most patients

are asleep; does not allow contact visits with visitors;

only allows one phone call every 90 days; does not

allow patients to attend religious services; does not

provide any individual therapy, & provides very

minimal group therapy; does not monitor or enforce

personal hygiene or cell sanitation; does not provide

haircuts and Shaves on a regular basis; often serves

cold food; does not adequately train correctional

officers on how to properly interact with psychiatric

patients, and, as a result, officers often provoke

patients into misbehaving. This is all currently taking

place on 12 Bldg. A, C, & E pods on the Clements

Unit. All of the defendants and their staffs are well

aware of these problems due to the fact that they all

frequently walk around the building and within the

pods. I was in the CMI program from around October

2015 until July 2017. See attached documents for

complaint to the U.S.D.O.J.

VI. Relief:

To order the TDCJ-CID to fully comply with the

ADA & RA. To cease persistent cruel & unusual

punishment. To award damages accordingly.

App.44a

VII. General Background Information:

A. State, in complete form, all names you have

ever used or been known by including any and all

aliases:

Toby Kristopher Payne

B. List all TDCJ-ID identification numbers you

have ever been assigned and all other state or federal

prison or FBI numbers ever assigned to you, if know

to you.

1720023

VIII. Sanctions:

A. Have you been sanctioned by any court as a

result of any lawsuit you have filed?

NO

[...]

Dear Sir or Madam,

I am an inpatient inmate housed on one of several

psychiatric wards here at the Montford Hospital Prison

Unit in Lubbock, TX. My diagnosis is schizoaffective

disorder. I am somewhat stable now since I diligently

take my medications. From what I’ve read in a few of

the self-help legal books, that I own, I am covered by

the A.D.A. as well as all the other inpatient psychiatric

inmates housed at the Montford Unit.

The issue that I am asking you to investigate is

regarding the blanket denial of access to the offender

Telephone System for all of the offenders housed on

the psychiatric wards hear at Montford. There are

App.45a

OTS phones installed on the trustee camp and regular

hospital areas of the unit. There are none installed

on the psych. Wards. We are only allowed to place

one five-minute phone call every 90 days using TDCJ

owned phone to call collect. Before being admitted to

the Montford Unit, I had adequate access to the OTS

at my regular unit of assignment. That privileged

access was taken away from me simply for admitting

that I was suicided and was admitted here.

Being admitted here, I started on Level 1. That

being the most restrictive of privileges, while housed

on a Psych. Ward. Level 4 is the least restrictive. I

earned my way to a level 3. Some of the property items

that I am allowed to have on Level 3 is my radio and

headphones. I am telling you this because one of the

reasons that the staff here has given me is that a

suicidal inmate could wrap the phone cord around

his neck. First, the OTS phone cords are way to short

to do such a thing. Second, the OTS phones could be

installed in the common/dayroom areas on each psych.

pod/ward. These common areas are constantly under

the direct observation of one nurse and a minimum of

two correctional officers. Third, level 3 and 4 offenders

are the only ones that should be allowed access to the

OTS since they are deemed more stable that Level 1

and 2’s. Finally, the radio I have has cord that is significantly longer than an OTS phone cord and cam be

used for purposes that I need not describe. The radio

is in my cell with me and cells are only observed every

30 minuets thru a window. Again, I am on level 3, So

trusted to have access to my radio.

It is devices that we are being discriminated

against. There is no justifiable reason why we cannot

be given access to the OTS. In fact, the Montford

App.46a

Unit is Violating its own Policy regarding access to

the OTS. TDCJ Executive Directive ED-03.32 (rev. 2)Offender Access to Telephones, Section 3(A)(2) says

that “Offenders in a psychiatric inpatient program or

development Disabilities Program shall be allowed

access to the OTS in accordance with the Offender’s

treatment plan.”

I Just recently filed a step 2 grievance regarding

this issue. If the Step 2 is returned to me and is not

ruled in my favor, then I will have exhausted my

state remedies and. . . .

App.47a

Toby K. Payne #1720023

John T. Montford Unit

8602 Peach St.

Lubbock, TX 79404

(806) 745-1021

_______________________________

To: Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Friday, September 18th, 2015

Re: Ongoing Violations of the Americans with

Disabilities Act at the John T. Montford Unit

Dear Sir or Ma’am:

I am an inmate currently assigned as an inpatient

psychiatric offender at the John T. Montford Unit,

Texas Department of Criminal Justice, Criminal

Institutions Division. The Senior Warden here is

Robert K. Stephens. I believe that I have identified

possibly three or more violations of the Rehabilitation

Act and/or the Americans with Disabilities Act here

at the Montford Unit. I have formally complained

about the denial of access to the Offender Telephone

System via the TDCJ grievance system. However,

the grievance system is very frustrating because as

an inmate, we never win the argument.

I arrived here sometime during the first week of

October 2014 after attempting suicide on my regular

unit of assignment (Neal Unit, Amarillo, TX). I have

been diagnosed with schizoaffective disorder. It is an

acute combination of psychosis and bipolar disorder.

App.48a

I have been somewhat stabilized by medications and

therapy. However, my crime resulted in the death of

my two year old son. Dr. Kristi Compton Ph.D. found

that I succumbed to a psychotic break at the time of

the murder. I am not receiving any specific therapy

for grief. All that has been done is that I have been

handed a grief packet to read. I have decided that I

may never completely stabilize from the loss of my son.

I just have to learn to manage it. I will be forever

remorseful for how I affected everyone who knew my

son.

Since arriving here at the Montford Unit, I have

noticed many violations of basic human moral standards. Below is a list of some violations that I have

discovered:

We do not have access to the Offender

Telephone System. There are no OTS phone

installed on the psychiatric wards. Long

Term Care offenders in the hospital ward do

have access to the OTS as well as offenders

housed at the trustee camp here at Montford.

[...]

App.49a

OFFENDER GRIEVANCE FORM

(AUGUST 1, 2016)

Texas Department of Criminal Justice

Step 2 Offender Grievance Form

Office Use Only

Grievance #: 2016160363

UGI Reed Date: Aug 01 2016

HQ Reed Date: Aug 02 2016

Date Due: 9.10

Grievance Code: 301

Investigator ID#: I2434

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-65 (CMI)

Unit where incident occurred: Clements

Give reason for appeal (Be Specific):

I am dissatisfied with the response in Step I because…

Yes, on Saturday, July 9th, 2016, I was allowed

to place a phone call to my mother. The system used

was not the same Offender Telephone System (“OTS”)

used in general population. There was officer across

the desk listening to the entire phone call using a

“spliced” telephone as the call was taking place. Although the phone calls placed on the OTS in general

population are recorded and can be listened to, having

an officer actively listening to a phone call and sitting

across from me does not offer me the same “sudo”

privacy as did placing a phone call using the OTS in

App.50a

general population. I was, told that I only had 10

minutes to speak with my mother. Each phone call

using the OTS in gen. pop. lasts 20 minutes and I

can place as many phone calls every day as money

allows. Here in CMI using this other method, I am

only allowed one 10 minute phone call every 90 days.

This disparity seriously violates ADA laws and does

not come close to satisfying the policies and laws

mentioned in my Step 1 on this issue. The same OTS

phones used in general population should be installed

in the dayrooms of the CMI pods on 12 building.

*** (END OF STATEMENT) ***

App.51a

OFFENDER GRIEVANCE FORM

(JUNE 15, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2016160363

Date Received: June 15 2016

Date Due: 7.25.16

Grievance Code: 301

Investigator ID#: I2434

Date Retd to Offender: Jul 26 2016

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-65- (CMI)

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Major Hardagree (Sent I-60)

When? Thursday, June 9th, 2016

What was their response? None

What action was taken? None

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

App.52a

This grievance is being filed under grievance

code 301 Telephone Access. As stated above, I wrote

Major Hardagree requesting that I be given permission

to call my rather, Deborah (Debi) L. Flowers. She is on

my visitation list and her phone number, (214) 5571319, is on my approved Offender Telephone Service

(“OTS”) list. I have not heard from my mother since

she last wrote on Wednesday, May 18th, 2016. At

that time, she informed me of the sad news that one

of my cousin’s son had passed away and that she

would be traveling to Colorado for the memorial

service. My mother normally writes at least every

two weeks. I am quite sure that nothing has happened

to my anther because my step-father has not called

the unit to inform re of that. However, I wait to be

able to talk to my mother to be able to console her.

This is the second child in our family that has passed

away. My own son and now my cousin’s son. I am

sure that she is in shock. She is also probably trying

to maintain a high level of productivity for a high

level job. I have not verbally spoken to my mother

since the weekend before Christmas 2014. She came

to visit me at the Montford Unit while I was on the

psychiatric ward. There are no OTS phones there as

there are no OTS phones here in the Chronic Mentally

Ill (“CMI”) program. I am a G2 custody status and an

53 time earning status. I have had a clean disciplinary history for about two years. I have done nothing

to be denied access to the OTS or a TDCJ owned phone

and not be able to call my mother. This constructive

denial violates U.S. & Texas Constitutional lad, 5th

Circuit case law & TDCJ Executive Directive 03.32

(rev. 2), TDCJ ED-03.32 (rev. 2) § 3(A)(2) says that

“offenders in a psychiatric inpatient program or developmental disabilities program shall be allowed

App.53a

access to the OTS in accordance with the offenders’

treatment plan.” TDCJ ED-03.32 (rev. 2) § 4(A)(3)

says that “In order to be eligible to place a call using

a TDCJ-OWNED phone, offenders shall not have been

found guilty of any major disciplinary violations within

the last 90 days . . . ”. Martin v. Tyson, 845 F.2d 1451,

1458 (5th Cir. 1988) says (one monitored telephone

call every other day, with a non-monitored line for

legal calls, net constitutional requirements). Texas

Gov’t Code, § 495.027(d) says . . . , “The policies adopted

under this section may not unduly restrict calling

patterns or volume and must allow for an average

monthly call usage rate of eight calls, with each call

having an average duration of not less than 10

minutes, per eligible inmate.

*** (END OF STATEMENT) ***

App.54a

Toby K. Payne #1720023

William P. Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

December 22nd, 2015

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I received a letter from your office on 12/22/2015

dated 12/16/2015 regarding the fact that I had been

transferred from the John T. Montford Unit to the

William P. Clements Unit. This letter will be placed

in the unit mail on 12/23/2015.

At the request of the mental health staff at the

Montford Unit, I was referred and admitted to a

psychiatric treatment program here at the Clements

Unit called CMI (Chronic Mentally Ill). The mental

health staff at Montford touted the CMI program as

being better for me. They explained to me that I was

stable enough to be discharged as an psychiatric inpatient at Montford but not stable enough to go back

to general population. After being transferred, I actually

lost more privileges than I had attained at the Montford Unit.

App.55a

The Montford Unit psychiatric program consists

of 3 levels (Level 1 being the most restrictive) that a

patient has to progress thru. I had attained Level 3

before being transferred. (The least restrictive level).

As a Level 3, I could walk to the chow hall to eat

rather than having my tray brought to my cell. I

could go to the dayroom for recreation (there was no

outside recreation offered) to watch TV and associate

with other Level 3 patients from 1pm until 10pm. I

could take my daily shower between 6pm and 10pm.

I could work as a pod janitor. I could go to gym

recreation once a week. I could attend group therapies

and specific therapies such as art therapy. However,

here at the Clements Unit in the CMI program, I

have been stripped of practically all of these privileges.

I am now treated as an administrative segregation

offender but not classified as an administrative

segregation offender. Along with approximately 150

other CMI patients here at the Clements Unit, I am

confined to my single occupancy cell 23 hours a day. I

am offered my one hour of recreation and daily

shower at 5am. I am not allowed to attend religious

services. I still have no access to the offender telephone

system (“OTS”) as there are no OTS phones installed

on the CMI housing pods. Finally, the officer staff

here at the Clements unit treat psychiatric inmates

with disdain and contempt. Officers often provoke us

into heated arguments so they can say that we

“behaviorally denied” our recreation, shower, and/or

food tray. There is one last privilege that I lost after

being transferred to the Clements Unit. At Montford,

as a Level 3, I could have contact visits with my

family. Here at the Clements as a CMI patient, I can

only visit with my family behind the glass.

App.56a

The fact that we are treated as administrative

segregation should cause grave concern to your office.

It is an oppressive and possibly unlawful way to treat

psychiatric patients/offenders. Despite always taking

my medications, I often fall into a depressive cycle

because of this type of confinement. I have friends and

family who write and send me money. I cannot imagine

what it is like for a CMI patient/offender who has no

contact with the outside world. The type of treatment

here is obviously counterproductive to the mental

stability of a mentally ill person.

I would more than welcome an interview with

someone from your office. I am not worried about any

of the staff retaliating against me. I want the treatment

of psychiatric offenders to improve and these injustices

to stop. Most, if not all, of us in the CMI program

have done nothing disciplinary wise to have so many

privileges taken away. I pray that if it is in your

power to investigate the entire TDCJ mental health

program, you will do so. I would love to see all

psychiatric offenders confined in TDCJ receive fair

and equal treatment just as if they were receiving

treatment in a free world mental hospital or even a

“civil” State Hospital.

Thank you so much for your time and consideration in this matter.

Respectfully submitted,

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

App.57a

Toby K. Payne #1720023

William P. Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

February 5th, 2016

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I have recently discovered that an inmate housed

in “high security” (solitary confinement) on this unit

died because he refused to eat. I believed that this

happened only a few weeks ago. An officer whom I

trust told me that his hunger strike went overlooked

by the medical as well as the officer staff. Although

this inmate was not in a psychiatric program, it’s

clear that he must have suffered from some form of

mental illness (like clinical depression) in order to

allow himself not to give in to the temptation to eat.

This same lack of care goes on here in the psychiatric

pods. In some cases, it’s worse here in the psychiatric

pods considering we are in a “treatment” program

called Chronic Mentally Ill.

I have brainstormed a few more issues of concern

that by themselves may seem minor. However, when

App.58a

added to other issues in my complaint, they add

insult to injury.

1)

We are not provided haircuts & shaves on a

regular basis. We are also not provided

fingernail clippers & have to wait for the

barber to come around with some. In order

to get these “services”, we have to “raise

hell” in order to get a barber down here. We

have gone almost three months without these

services. General population inmates are

provided these services on a weekly basis.

2)

Our food is brought-to us on carts that, when

plugged in, can keep our food warm/hot.

However, these carts are rarely plugged in.

I am on a pod that is divided in to six sections

(A-F). I am on F section. The officers begin

serving the food on A section the majority of

the time. So, that makes the 14 inmates

housed on F section the last to be served. By

the time we get our food, it is room temperature or colder.

3)

Personal hygiene (or the lack of it) is not

monitored and/or enforced on the psychiatric

pods. The inmates in these pods that are

worse off (mentally) than I am go months

without showering or changing out their

clothes & bedding items.

4)

Cell sanitation is also not monitored and/or

enforced in the psychiatric pods.

I am probably missing other issues. If your office

were to perform an unprompted investigation here,

you would probably find more violations of the appropriate sections of the ADA & Rehabilitation Act.

App.59a

I thank you for your time & consideration.

Sincerely,

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

App.60a

OFFENDER GRIEVANCE FORM

(FEBRUARY 23, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2016097056

Date Received: Feb 23 2016

Date Due: 4.3.16

Grievance Code: 901

Investigator ID#: 2058

Date Retd to Offender: Mar 4 2016

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-65- (CMI)

Unit where incident occurred: Clements Unit

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

All pod officers

When? Since 2/15/16

What was their response?

We’re not instructed to enforce personal

hygiene & cell sanitation

What action was taken? None, Feb 23 2016

App.61a

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

My neighbor (Offender Wilson 12-C-66) & the

offender in 12-C-69 hardly ever take showers or clean

their cells. When officers perform cell searches, they

comment on how unsanitary the cells are for these

two offenders. Anyone who walks down our run often

times comment that they smell feces permeating

from the cells of these two offenders. TDCJ policy

requires that offenders keep up their personal

hygiene and cell sanitation. The lack of enforcement

on these two issues puts officer’s and offender’s

health at risk. (END OF STATEMENT)

App.62a

OFFENDER GRIEVANCE FORM

(JUNE 27, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2016167742

Date Received: June 27 2016

Date Due: 8.6.16

Grievance Code: 814

Investigator ID#: I2174

Date Retd to Offender: Jul 21 2015

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-65- (CMI)

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Officer Haney

When? Thursday, June 23, 2016

What was their response?

Verbally refused phone call

What action was taken?

Officer Haney lied and told supervisor that I

refused my phone call

App.63a

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

This grievance is to be attached to my current

grievance (Grievance # unknown) regarding a telephone

cell that recently filed. On Thursday, June 23rd,

2016 and at or around 8:30pm, Officer Haney (I am not

sure of the name but I can describe him as

Caucasian, heavy set, wears glasses and has a

mustache.) woke me up out of my sleep and asked

me if I wanted to make a phone call. I said yes I do.

Please give me a minute to wake up and get ready. (I

only had boxers. on at the time and I wanted to

splash water on my face to help me wake up. I did

not want to call my mother with a groggy mind.)

While sitting up on my bunk waiting for my mind to

clear up, Officer Haney was still at the door staring

at me. I asked him again if he would please give me a

minute to get ready because I also had to urinate. He

still stood at the (my) cell door watching me. I said,

“are you going to stand there and watch me get

ready?” His response was, “You’re sure right.” He

walked off and told supervisors that I refused My

phone call. His report to his supervisor was an

outright lie. I haven’t spoken to my mother since

December 2014 and I absolutely would not turn down

an opportunity to talk to her. The response to this

grievance will be filed and attached to my complaint

to the U.S. Department of Justice, Office for Civil

Rights, Payne v. Tex. Dep’t of Criminal Justice, Case

No. 15-OCR-1258 which is still active. Attorney

Shelley Langguth is the attorney assigned to the

complaint I just mentioned.

**** (END OF STATEMENT) ****

App.64a

OFFENDER GRIEVANCE FORM

(JULY 5, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2016172308

Date Received: July 05 2016

Date Due: 8/14/16

Grievance Code: 812

Investigator ID#: I-2174

Date Retd to Offender: Aug 15 2016

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements Unit

Housing Assignment: 12-C-65- (CMI)

Unit where incident occurred: Clements-Chronic

Mentally Ill Program

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Officer Ellis, CO

When? Thursday, June 23, 2016

What was their response?

Please see statement below

What action was taken?

Please see statement below Jul 05 2016

App.65a

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

This emergency grievance is being filed under

grievance code 002 Allegations of Staff Conduct That

Places an Offender in Danger. On Thursday, June 30th,

2016 an Clements Unit, 12 Building, C Pod, cells 65

& 71, Officer Ellis (Hispanic Male) was harassing

Offender Escalante (Cell 12-C-71) regarding the fact

that Offender Escalante cannot control his bladder

and urinates on himself. Officer Ellis was cursing at

Offender Escalante telling that he better clean up his

fucking house. Becoming angry, I called Officer Ellis

down to my cell to explain to him that Offender

Escalante is not able to control his bladder and was

being monitored by medical for it. Officer Ellis would

not listen to reason and refused to believe that I was

telling him. I became even more angry because this

is not the first time an officer has harassed Offender

Escalante regarding this issue. I was upset because

Officer Ellis was picking on an old man who could not

really defend himself and has a serious medical issue.

I wanted Officer Ellis to pick on scream who could

defend himself. Officer Ellis then walked away. Somewhere between 30 minutes to an hour after this,

Officer Ellis retuned to my cell along with Officer

Winburn (that day’s pod officer). Officer Fills proceeded to tell me that he just found out what my

crime was and how could I “stud up” to him and call

myself a man. He said, “You-killed your two-year-old

dude.” I asked him who told him this? Did he go out

to the parking lot and look this up on his smartphone?

He shook his head and walked away from my cell

and off of the pod. I asked Offender Kelly #726547

App.66a

(Cell 12-C-67) if he heard what just had happened

and he told me yes he did and that he would be my

witness. I also asked Officer Winburn if he would be

my witness and he said, “You know how it is. I didn’t

hear anything.” This action violates PD-22 General

Rules of Conduct for TDCJ Employees Rule 33 which

states, “Release of information-A TDCJ employee is

not allowed to release any information relating to

employees or offenders (Texas Penal Code § 30.04). I

will be filing a sworn complaint to the Potter County

D.A.’s Office under Texas Code of Criminal Procedure

Article 15.05 in order to initiate criminal proceedings

against Officer Ellis. I will also be sending a copy of

this grievance to Attorney Shelley Languth; Officer for

Civil Rights, Office of Justice Programs; U.S. Department of Justice; 810 7th Street, NW; Washington,

DC 20531 as an amendment to my still active complaint ‘Payne v. Tex. Dep’t of Criminal Justice’ (Case

# 15-OCR-1258). I am calling Offender Kelly #726547

(Cell 12-C-67) & Officer Winburn, CO as witnesses . . . .

[...]

App.67a

OFFENDER GRIEVANCE FORM

(AUGUST 30, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2016204601

Date Received: Aug 30 2016

Date Due: 10/9/16

Grievance Code: 300

Investigator ID#: I2108

Date Retd to Offender: Sep 22 2016

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-65- (CMI)

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

U.C.C. (Major(s) Hardagree & Gruver, reps

from Class. & Psych?

When? Monday, August 22nd, 2016

What was their response?

As long as you are in the CMI program you

cannot have contact visits

What action was taken?

App.68a

Denied a contact visit with my mother, Aug

30 2016

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

This grievance is being filed under grievance

code 004 ADA ISSUES. After sending a request to

Senior Warden Foley to get a contact visit with my

mother, I was scheduled to see UCC on 8-22-2016.

On that day, I went before Major Gruver, Major

Hardagree & reps from unit classification and CMI.

It was already predetermined (before I even walked

into that room) that I was going to be denied a contact

visit with my mother. I was told that the unit policy

for all offenders who are housed in 12 bldg. (CMI &

PAMIO) can only get visits behind the glass. I

explained to them that when I was on the Montford

Unit psychiatric wards (from October 2014 to October 2015) I could get a contact visit as long as I was

higher than a Level 1 & had not received contact

visit restriction due to disciplinary action. It was

explained to me that security on this unit is different

than Montford. I explained to than that I was a

G2/S3 with no cases for nearly two years and that I

had never caused problems when I had contact visits

in the past. They explained to me that it appeared

that I was functioning well enough to be in general

population. I told them that I have a serious I mental

illness and have never fully recovered from my son’s

death in 2009. I told them that every time the anniversary of his death & holidays come around I go into

a downward seal mentally and that’s why mental

health believes that it’s best for me to remain in CMI.

In short, I was told that if I want contact visits &

App.69a

access to the OTS Phone system, to request a discharge

from CMI. Contact visits was taken away from me

without due process. I have done nothing to have that

privilege taken away. Rather, I have done everything

to earn that privilege. I suggested to Senior warden

that I and other offenders in 12 bldg. (who are classified like me G2/63 and have achieved one of the two

higher levels) should be treated as protective custody

and not administrative segregation. TDCJ policy for

protective custody offenders is that they are allowed

contact visits during the weekday, upon approval by

the Senior warden and/or UCC, where they would not

be interacting with any offenders from general population. TDCJ is subject to Title II of the ADA because

TDCJ receives funding from the federal government.

The disparity between psychiatric offenders on the

Montford Unit being allowed to have contact visits &

psychiatric offenders on the Clements Unit not being

allowed to have contact visits violates Title II of the

ADA.

*** (END OF STATEMENT) ***

App.70a

OFFENDER GRIEVANCE FORM

(NOVEMBER 8, 2016)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2017037678

Date Received: Nov 8 2016

Date Due: 12.23.16

Grievance Code: 666

Investigator ID#: I2186

Date Retd to Offender: Nov 28 2016

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-A-30 (CMI)

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Mental Health (Sick Call)

When? 10-26-2016

What was their response?

Wait until your next session with Dr. Nguyen

What action was taken? None

App.71a

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

On 10-24-2016, I sent in a sick call to mental

health complaining that the benadryl was not offsetting

the side affects from the other psychotropic medications

that I currently take. Since switching off of congentin

(at my request) and on to benadryl, I have been locking

up my muscles all over my body. I can control that

when I am awake to an extent. However, when I am

asleep, I must be locking up a lot because I constantly

wake up with very sore muscles and my teeth hurt

from grinding them. I cannot wait all the way until

my next scheduled visit with Dr. Nguyen. I do not

understand why I would have to. On the Montford unit

in the psychiatric treatment program, when I turn in a

mental health sick call complaining about my psychotropic made, a mental health PA will come to see

me within 24 to 48 hours. It should be the same here.

Since it is not, that is a direct violation of Title II of

the Americans with Disabilities Act. I need to speak

with Dr. Nguyen as soon as possible.

*** (END OF STATEMENT) ***

App.72a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Tuesday, March 14th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I received your letter dated March 8th, 2017 today

Tuesday, March 14th, 2017. This letter in response

will be placed in the unit mail system on Wednesday,

March 15th, 2017.

I recently sent you two letters regarding my

grievance about TDCJ’s Health Services division misapplying Texas Government Code § 508.146 Medically Recommended Intensive Supervision (MRIS) as

well as me being informed that a new CMI program

being recently created for current and future CMI

patients, who are currently classified as general population (G4 up to G2), at the Montford Unit. Not G5

patients. That is a close custody classification and is

the most restrictive general population classification.

My understanding is that the CMI program here at

the Clements Unit will only house G5 & administrative

App.73a

segregation patients/offenders and those CMI patients

who are G4 & G2 that have chosen to not transfer to

the CMI program at the Montford Unit. I chose to

remain here because the CMI staff here could not

provide me with any details as to how the CMI

program at Montford would be ran.

I am still in the CMI program here at the Clements Unit. CMI patients here are generally still confined to their cells 23 hours a day. I assume the reason

for this is because TDCJ has made a blanket decision

to treat the patients in the CMI program here as

administrative segregation regardless of the patient’s

/offender’s custody/classification level.

Recreation and showers here are still only offered

at or around 5:30am. Officers will often run dayroom

recreation but not showers in an attempt to “wait

out” those that wanted to shower in order to get

them to give up and refuse their shower when finally

asked sometime around 9am or so. Dayroom recreation

and showers are often used as a commodity. For

example, I can “give up” my recreation & shower for

an extra tray of food at lunch or dinner. Lots of

patients who do not get money on their commissary

accounts take this offer.

All CMI patients here still cannot have contact

visits. This is also because all CMI patients are treated

as ad-seg here regardless of their custody level. This

is understandable for those CMI patients who are

currently classified as G5 or ad-seg. I am trying to

find out if contact visit privileges have been restored

for the CMI patients at Montford.

The “one phone call every ninety days” policy for

CMI patients here is still in effect. As far as I know,

App.74a

nothing has changed regarding that. I am also currently

trying to find out if the CMI patients at Montford

have ready access to the Offender Telephone System

(OTS) that general population offenders not in a

psychiatric treatment program have access to.

There are still no religious services being provided

to CMI patients here. Only upon request will a

volunteer clergyman visit with us. His name is

Chaplain Dale and he only comes by on Sundays as

far as I know. I have visited with him on a few

occasions and he is always gracious and as patient as

possible considering that he is the only one provided

to us. I must admit that I have not spent much time

researching this particular issue.

CMI patients here are now being provided with

group therapy at a maximum rate of one per week

for about an hour each session. Group therapy is only

provided to patients that are at CMI levels 1 & 2.

(There are four CMI levels as it relates to their

cognitive functioning. Level 1 is for higher functioning

patients. Level 4 is for the lowest functioning patients)

The group therapy sessions here are not specialized

like the sessions at Montford. Here, it is mainly a

talking session that is loosely based on a psychological

treatment program. In addition to group discussions,

there are specialized sessions at Montford like art

therapy & garden therapy etc. Individual therapy

here is strictly cell-side visits only. By doing it that way,

other patients can hear confidential patient information being discussed. Officers, who are required to

escort counselors to the patients cell, can also hear the

discussion. Each pod has two cells that are side-byside and have been converted to a single “room” where

all group therapies are currently being conducted.

App.75a

The room has a chain-link fence that separates patients

and their counselors. My belief is that officers are

just too lazy to pull a CMI patient out for a one-onone session.

As far as I can tell, there has not been much of a

change in the enforcement of personal hygiene and

cell sanitation policies here. The entire officer staff

simply does not care. However, I believe that now

CMI patients who have been stuck at level’s 3 & 4

(not functioning at a high cognitive level like not

showering or cleaning their cells) are being transferred

to Montford (not to the new CMI program) in order to

help them get to a higher functioning level and to

possibly adjust and/or change their psychotropic medications. Now, I have been moved several times to

another cell where the prior occupant did not practice

personal hygiene and cell sanitation. On one of these

occasions the escorting officer(s) told me that I would

get wrote up with a “refusing housing” disciplinary case

if I refused to go into a cell that was covered with

food debris and smelled like urine & feces. I had to

clean it all myself using my own commissary supplies.

I have already verbally complained to my counselor

about this. I have not been moved since issuing my

verbal complaint. I do not know if this issue is still

happening to us.

Haircuts and shaves are currently only being

provided at an approximate rate of once per month

here. At Montford, patients are provided this service

once per week. Clements has plenty of inmates that

can be trained to “zero out” clipper shave. I believe

that TDCJ just does not want to purchase the additional equipment that would allow each CMI/PAMIO

App.76a

pod on 12 Bldg. (6 total) to have an inmate barber

assigned to it.

The carts that carry the food trays are now being

plugged in when they arrive on the pods. I currently

cannot see if this is being done all the time. I can just

tell when I get my tray if the food is hot or not.

Lastly, in my opinion, every officer and every

supervisor that work in these controlled psychiatric

environments should have a degree in psychology

and be licensed to counsel. Currently, if a CMI patient

is experiencing a crisis, unless they are suicidal and/or

homicidal, they cannot get access to their counselor

unless they go thru their pod officer. Pod officers hate

having to deal with an offender who is just having a

bad day and needs to speak with someone. Be generally cannot speak with our counselor unless he/she

stops by our cell when we are scheduled. Officers

here still provoke CMI patients into misbehaving.

TDCJ policy requires that an inmate be fed regardless

of his/her behavior. That’s why there are alternatives

like a Johnny sack with sandwiches and food-loafs.

But when a CMI patient is either provoked into

misbehaving or just having a bad day (after being

confined in their cells for whatever amount of time)

almost always the pod officer will totally deny their

meal(s) and not provide one of the alternatives mentioned. (As a side note regarding this specific issue,

as a result of the grievance I filed regarding officers

Ellis & Winburn (I sent the Step 1 & Step 2 to you)

disclosing specific details of my crime where other

inmates on my section could hear it, officer Winburn

(when he works my pod) he will refuse to feed me

both lunch & dinner and does not provide either of

the alternatives. On most of those instances I will

App.77a

have some food that I purchased from commissary in

my locker. I just tell myself that God will handle that

particular grievance. If I did file a grievance on this,

he would just lie and deny that it happened like he

did with the previous grievance.

I have already mailed you any and all relative

grievances that have completed the Step 1 & Step 2

process. I think I mailed you one or two Step 1’s that

did not require a Step 2. The grievances that I am

sending you are the originals as I do not have ready

access to copying services. In order to get copies made,

I would have to mail them to my mother and then

the material would not go out as privileged legal mail

that can be sealed.

Currently, I have two outstanding grievances

that are still being investigated. One, currently in

the Step 2 stage, is in regards to the cell light switch

in my pod’s picket for my section being broke off and

stuck in the on position. All of us reported it as soon

as it happened and our pod officers told us that they

wrote it down on the maintenance log. It still took 6

days to get it fixed. This possibly caused undocumented

mental setbacks for those CMI patients affected that

were not functioning well as it was. It also caused

conflict with some pod officers because some of us

covered up our lights for those six days and by policy

we cannot do that. On a couple of occasions some of

us had to unite and demand a supervisor to come to the

pod to endorse what we felt we had to do by covering

up our lights. The other outstanding grievance is

still in the Step 1 stage and relates to the misapplication of the MRIS law by TDCJ Health Services. I am

in the process of obtaining my copy of the application

for the MRIS program that was eventually denied. I

App.78a

am also going to get a copy of the application that

was granted for my admittance into the CMI program.

I must tell you that the information that I’ve

provided is my personal observations. None of the

CMI patients, including me, are being provided any

information relating to positive changes to the treatment of us or any mentally ill offenders. When

something changes, we are sort of blindsided and

being asked to participate. Most of the CMI staff has

told us that they don’t even know what’s coming

down the “pipe” prior to a change being made. They

tell us that they are in the same boat as us. I could

be misinformed regarding . . .

[ . . .]

App.79a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Sunday, April 23rd, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

It seems as though the staff here, both mental

health and officers, just hand me a legit issue every

week. I am submitting another grievance tomorrow

morning.

The psychiatrist over me, the one that I have been

under since entering into the CMI program, finally

put me on Effexor a while back. It is both a SSRI &

SNRI and has worked the best for my depression. It’s

the first antidepressant that is also an SNRI that I

have been on. Well, I also have high blood pressure

and Effexor can cause high BP. Dr. Nguyen visited

me on Tuesday 4/18 after my BP spiked. She checked

it again and it was lower. She told me that she may

have to take me off of Effexor and put me back on the

old medication. I told her that that was the reason

we went to the Effexor was because the “old” stuff didn’t

App.80a

work well. She said there was nothing else she could

do. That’s a total lie and I told her so. She just

doesn’t want to have to go thru the red tape to get a

SNRI that doesn’t affect my BP approved.

So the grievance is about that and also I stated

that if TDCO couldn’t provide me with proper medications, then I need to be transferred to the Texas

State Hospital System per Texas Health & Safety

Code § 501.113. The code reads as follows:

The Texas Department of Mental Health

and Retardation may contract with the TDCJ

to transfer or provide facilities for current,

paroled, or released prisoners with mental

illness or mental retardation.

I even also found a caselaw by shepardizing the

code. Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct.

1804, 1811 (1979).

When I get the Step 1 back, I will mail you a letter

informing you of the response. When I get the Step 2

back, I will mail you the originals.

Sincerely,

/s/ Toby K. Payne

Toby K. Payne #1720023

App.81a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Saturday, May 6th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I am writing you regarding yet another death of

an offender/patient here on 12 Bldg. (CMI/PAMIO).

This was a suicide by hanging. It occurred during the

evening of Thursday, May 4th, 2017 going into the

morning of 5/5/2017 on B Pod, 12 Bldg. I believe that

the offender was successful only because pod officers

get lazy and do not do their wellness checks. I have

confirmed this by speaking to several offender pod

janitors, officers, and nurses who trust me. They all

know about this complaint/investigation and truly

want to help and want to see change to how mentally

ill offenders are treated.

There was a period a short while ago where officers and supervisors were doing good on wellness

checks about every 30 minutes. The problem was that

most of them were tapping hard on our steel doors

App.82a

with objects and/or kicking our doors as hard as they

could every 30 minutes because they were mad about

having to do these checks. I think the main problem

is that the officers are doing these wellness checks

and not the psych nurses. The psych nurses, who are

here 24/7, do not come on our pods unless they have

to. When they do, some of them are very dismissive

and reluctant to help. Otherwise while in their offices,

they are not doing all that much. Also, I checked the

medical employee roster that I requested from the

law library and there is about 6 or 7 psych nursing

positions open. If the nurses end up doing the checks,

they should use flashlights to ensure we’re breathing

/moving to make sure we are alive. Waking us up

every 30 minutes would only exacerbate our mental

condition.

It’s very alarming that in a super controlled

environment, things-such as this still happen. It just

shows that there is a concerted effort of neglect towards

the mentally ill offender because, “That’s one less body

we have to take care of an pay for.” Ma’am, I will die

fighting to ensure that all people who suffer by being

& because they are mentally ill are treated with the

dignity that our Constitution dictates that we should

be provided with. How is it that what is happening to us

is not also a violation of 42 U.S.C. Ch. 114 §§ 10801

Protection and Advocacy for . . . .

[...]

App.83a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Saturday, May 14th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

Here is my “weekly” update regarding the issues

and/or improvements here in the CMI program.

Last night was the first time since entering the

CMI program that I got a haircut & clippershave at

night. Our haircuts & shaves are still very infrequent.

Sometimes the inmate barber is sent away due to staff

shortages. However, I know that often times supervising officers will claim a staff shortage, especially

at night, in order to get out of any extra work outside

of what is the bare minimum. Also, the only time we

can clip our nails is when the barber comes. The nail

clippers are communal and are almost always very

dull. In the psych wards at Montford, the pod nurse

is the keeper of the nail clippers. Medical is responsible for keeping new ones available.

App.84a

Since that is related to personal hygiene and a

close cousin to cell sanitation, here’s an update on

those issues. I am not seeing any progress in regards

to personal hygiene. Patients are still allowed to go

months without ever being required to shower and

ensure that they shower effectively if/when they do.

The main reason is oppression induced depression

and/or “natural” depression. But a very close second

is the fact that the section showers are “showercells”.

We are shut in by a solid full sized locked door. What

would normally be a food slot is left open. Pod officers

are slow in getting us out and back in our cells. I am

always sweating by the time I am pulled out. Most of

us are sensitive to heat due to the psychotropic

medications we take. I have gotten dizzy on a few

occasions from being left in that showercell too long.

So all of that along with showers only being offered

starting at 5:30 AM by informing the pod officer, at

that time, getting put on a list, is deterring patients

from wanting to get up and go take a shower. Montford psych has big barred windows on the upper half

of the door to the showers. Montford psych also offers

showers to the patients that have achieved the higher

levels (Level 1 and 2 for CMI) after the 2nd shift starts

at 5:30/6 PM. This creates an incentive to obtain a

Level 1 or 2 status. As far as cell sanitation, patients

are not being required to clean their cells. However, I

have seen the pod janitors clean a cell when someone

has moved out. I am not sure if this happens all of

the time.

We had a flu outbreak starting around May 4th.

Our building (12 Bldg.) was quarantined. The medical

staff took good care of us. Everyone was evaluated

and if we were sick, we were offered antidiarrhea,

App.85a

pain relief, antinausea medications. The situation has

blown over and we are back to normal activity. I

noted this because this event has triggered

supervising staff to pay more attention in ensuring

that pod janitors clean and sanitize the common

areas of the pods very well. Also, the food carts are

plugged up more often.

On the mental health side, therapy sessions are

still lacking in frequency and effectiveness. Group

therapy is a very quick hour and only once per week.

Group therapy is only being provided to Level 1/2

patients. Also, once per week, every patient is seen

one-on-one cellside. The exception is how the Level 3

counselor, Ms. Kemp, conducts here one-on-one

sessions. She will have the pod officers bring each of

her patients to the counseling area that is on each

pod. I do not know what to suggest in the way of

improvements in this area. It is so murky as to what is

allowed and what is not. I just know that we are all

in our cells way too much and we are unable to do

anything about it.

I have been informed that the supervising

psychiatrist over CMI/PAMIO, Dr. Garcia, is no longer

issuing orders to transfer any qualified patients to

the CMI program for general population classified

patients to Montford. The “informant” said that the

warden and mental health staff couldn’t get their

acts together and were at odds. I still have not discovered whether or not is true that hot pots and

radios were taken from all the psych patients.

Now, I believe that, like me, there are only a

dozen or so CMI patients here that are classified as G2

security status. G1 being the highest/ least restrictive.

This literally means that our behavior has been good

App.86a

and we’ve done nothing to warrant any privileges

being taken away from us. Mental Health (CMI) just

requires us to be in psychiatric sheltered housing due

to our situation(s) and diagnoses. Some of the privileges

that we are currently denied are:

1)

As far as property we’ve purchased, we are

not allowed to possess our hot pots, nail

clippers, shaving razors, and shaving cream.

If we own any of these items, they are currently being kept in the property room.

2)

Because this building is treated as administrative segregation, we are also unlawfully

treated as such. However, in the PAMIO

program on the same building as us, those

inmates are allowed more freedoms if they

attain the higher levels. They are wrist

banded a certain color and allowed to actually go to the TV/Dayroom with each other.

Staff could wristband US a certain color,

house us all on one section on one pod (14

cells total) to allow us to do the same.

3)

We are also still denied access to the Offender

Telephone System (OTS). We . . . .

App.87a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Saturday, May 20th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

It’s been another week and a few interesting

things have happened.

The property officer for our building (12 Bldg.),

Mr. Adams, passed out free fans for any CMI patient

that did not own one. I have no way of really knowing

if it was in response to this investigation. It was a

neat thing to see though.

On Tuesday (5/16), a group of commissioned TDCJ

wardens came to “investigate” deficiencies on this

building and other areas of the unit. I was told by an

officer that it was in response to the suicide of that

offender on B-Pod, 12 Bldg., on 5/4/2017, that I recently

wrote you about. Sometime during mid-morning of

5/16, several plain clothed people came on my pod (CPod) and stood around the desk that the pod officers

use. From my cell, I could see a few of them. But not

App.88a

the actual desk itself. Each of the six sections on each

pod of 12 Bldg. are barred off and each has its own

barred door/gate. None of the people ever went into a

section while “inspecting” our pod. They just roamed

the walk space that surrounds the control picket.

That means that none of these so-celled inspectors

actually looked into any cells. They never bothered to

see the deplorable conditions that many of these

patients subject themselves to due to their degraded

mental condition. They never smelled the urine and

feces coming from every unsanitary cell. They never

saw the very serious roach infestation due to these

poor cell conditions. They never looked into the eyes

of any of these patients who’s own minds are tormenting them at no fault of their own. They never

smelled the body odor coming off these patients because

they are unable to pull themselves together to want

to be clean. They are so used to their own smell that

they don’t know that they smell. Officers, supervising

officers, medical staff, and mental health staff all

know about the terrible conditions these men are

living in and are constantly passing the buck telling

me that they cannot do anything about it. Some of

them have had the audacity to tell me that we should

have not committed a crime, then we wouldn’t be in

this position. I’ve even been told that we probably

deserve the poor treatment that we’re getting right

now. Obviously none of what . . . .

App.89a

OFFENDER GRIEVANCE FORM

(JANUARY 25, 2017)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2017078378

Date Received: Jan 25 2017

Date Due: 03-11-2017

Grievance Code: 672

Investigator ID#: I2186

Date Retd to Offender: Mar 13 2017

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements

Housing Assignment: 12-C-54 (CMI)

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Ms. Wynne, Psych. Counselor, (CMI)

When? January 18th, 2017

What was their response?

Huntsville denied request for medically

Recommended Intensive Supervision (MRIS)

What action was taken?

App.90a

Ms. Wynne instructed me to submit Medical

Records request for chart review.

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

This grievance in being filed under grievance

code 672 and is in regards to the Texas Correctional

Office on Offenders with Medical or Mental Impairments (TCOOMMI) denying me full review for Medically Recommended Intensive Supervision (MRIS) based

on an application, sent to psychiatrist Dr. Nguyen of

the Chronic Mentally Ill (CMI) program, that contains

questions that have nothing to do with being mentally

ill and that very application failing to represent the

full color of the Texas law that governs the MRIS

program (Texas Government Code § 506.146). Tex.

Gov’t Code § 506.146 states that, “An inmate other

than an inmate who is serving a sentence of death

or life without parole MAY be released on medically

recommended intensive supervision . . . may only be

considered if a MEDICAL CONDITION of terminal

illness OR LONG-TERM CARE has been diagnosed

by a physician, if the Texas Correctional Office on

Offenders with Medical or Mental Impairments, in

cooperation with the Correctional Managed Health

Care Committee, identifies the inmate as being . . .

MENTALLY ILL. . . . OR having a CONDITION requiring LONG-TERM CARE . . . OR in a persistent vegetative state or being a person with-an organic brain

syndrome with significant to total mobility impairment

the parole panel determines that, based on the

inmate’s condition and a MEDICAL EVALUATION,

the inmate does not constitute a threat to Public safety

AND the Texas Correctional Office on Offenders

App.91a

with Medical or Mental Impairments, in cooperation

with the pardons and paroles division, has prepared

for the inmates medically recommended intensive

supervision plan that requires the inmate to submit

to electronic monitoring, places the inmate on superintensive supervision, or otherwise ensures appropriate supervision of the inmate. An inmate may be

released on medically recommended intensive supervision only if the inmate’s medically recommended

intensive supervision plan under Subsection (a)(3) is

APPROVED by the Texas Correctional Office on

Offenders with Medical or Mental Impairment. (This

has to happen prior to the favorable recommendation

is sent to the parole board. That is why this grievance

is not about being denied release on parole Per Se)” I

am currently an inpatient in the CMI program here

at the Clements Unit. I am in prison because I caused

the death of my son due to the fact that I was in an

acute state of psychosis. my diagnoses is schizoaffective

disorder. It is undisputed by the CMI staff that I

require “long-term” care. I satisfy Subsection (a)(2)

due to the fact that I have been stable for quite a long

time, I am classified as G2/53, and the fact that I

have gone disciplinary . . . .

[...]

App.92a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Saturday, June 4th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

This past week was fairly uneventful.

My pod (C Pod) has not received haircuts & shaves

since when I wrote you about getting haircuts at

night. Like I explained to you then, it does not happen

as often as it should.

The counselor for Level 2’s (my current level)

was out on vacation this past week. Another

counselor did stop by my cell for her to check on me

and the other Level 2’s. However, no Level 2’s got to

go to their weekly group therapy session. So,

probably most of them stayed in their cells 24 hours

a day all week. It’s this lack of basic mental health

care by TDCJ Health Services/Mental Health that is

my main concern.

App.93a

On that topic, I would like to explain something

that happens on a daily basis on all 3 CMI pods on

this building. Since we are kept in our cells all the

time, we are prone to depression and anger. Most of

the guys back here occupy their time arguing with

each other cell to cell. What we call cell warrioring.

Guys vent their frustrations on weaker ones with some

of the most horrible examples of verbal abuse that I

have ever heard in my entire life. I know of one guy

that recently lost his parents in a car accident and

this other inmate a few cells down tells him constantly

that he paid the other driver to crash into them. The

officers & mental health staff hear this arguing all

the time and do nothing about it.

Well, all of this “cell warrioring” goes on all the

time. Threats are frequently made. As you know,

Level 1 & 2 CMI patients are allowed to attend group

therapy sessions with physical access to the other

inmate/patients attending. Most of the time there

about 5 to 7 patients in each session. I explained that

to explain this: Fights are arranged between two

feuding patients who attend the same group all the

time. Several fights have already taken place in these

sessions. Patients that are currently Levels 3 & 4 are

afraid to be promoted to Levels 1 & 2 for fear of getting

into a fight. You can see where this is all going.

[...]

App.94a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Sunday, June 11th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I pray that this letter finds you doing well. I

hear on the radio that the political climate there in

DC is turbulent to say the least. With AG Sessions

testifying before the senate intelligence committee

this coming week, I am sure that everyone there at

the DOJ are on edge a little bit.

The unit went on an annual routine lockdown on

Monday (6/5). So yet another week without a haircut

& shave. Also, no group therapy this week due to the

lockdown. On Friday (6/9), my counselor did stop by

my cell but I was asleep and did not get to speak to

her.

My pod was searched yesterday (6/10) and I saw

something that surprised me. After the officers searched

each cell, an inmate janitor followed behind and swept

/mopped each cell that needed it. In the time that I

App.95a

have been in CMI, I’ve never seen that before. I know

that beggars can’t be choosers but I wish that the

staff in charge would have coordinated with pest control

services and had them go behind the janitor to spray

each cell to get a handle on the roach problem. But

as the saying goes in prison, “That would be to much

like right!”.

That is all that I have to report. Thank you for

what you are doing for us!

Sincerely,

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

Amarillo, Texas

App.96a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Sunday, June 18th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

We are still on lockdown. I am hearing that it will

be a long one. About 30 days total give or take. They

kept finding drugs and cell phones in general population. It’s being called a routine lockdown. But they are

going thru everything with a fine-toothed comb.

There are only three things to update that are

worth mentioning. The first is the lack of ongoing

counseling from the CMI psychologists. My counselor

did a drive by cell side visit with her patients the week

prior. She did it again this week. Both times were on

Friday at or around 3:30 pm. I can surmise that she

is doing this “counseling” on her way out the door to

go home. I was either asleep or pretending to be

asleep each time. I am no longer going to participate

in cell-side therapy. It violates my patient confidentiality because other inmates in their cells and

App.97a

escorting officers can overhear everything that is said.

I have no idea what the entire CMI staff do with

their 40 hour work week. But it doesn’t involve our care

and rehabilitation. If a CMI patient is to get better

and become mentally stable, it would not be because

anyone on the CMI staff held their hands each step

of the way. When it comes to the successful treatment of the mentally ill, it is absolutely necessary for

the caregiver to do just that. Anyone who is suffering

from an acute degree of mental instability is like a

baby mentally. They are very susceptible to extreme

degrees of emotion. If they are left to recover on their

own, they will never get better. I would gamble that

in all cases such as that, they will get worse. I know

all of this from first-hand personal experience. I

absolutely needed my “hand held” after my arrest. As

far as the expression of being a baby mentally, my

stepfather told investigators that prior to my arrest,

I was calling my mother numerous times a day. He

said it was like I was trying to crawl back into my

mother’s womb. Well, when I became more and more

stable mentally, I was able to stand on my own two

feet mentally speaking. The majority of the men in

the CMI program continue to suffer extreme mental

anguish with what appears to be no help coming over

the horizon.

[...]

App.98a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Sunday, June 28th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

I received your letter dated 6/22/2017 on Tuesday,

June 27th, 2017. Thank you for explaining the MRIS

issue to me. I do have one correction to make within

the first paragraph. We are provided with group

therapy for one hour once per week. Virtually all oneon-one counseling is done cell-side where escorting

officers and other inmates can overhear. So individual

therapy is virtually nonexistent.

In regards to my request to be transferred to the

CMI program for general population CMI patients at

Montford, that is on hold indefinitely. I am still

attempting to confirm if the warden there really did

confiscate all radios & hotpots from all psychiatric

patients. The CMI counselors here are telling me things

like, “They don’t know what they’re doing down there.”

or “We are not going to send you somewhere where

App.99a

things may be worse for you or provoke you to anger.”

I do have a grievance on this issue that is still in the

Step 2 phase. I will mail it all to you as soon as I get

the response.

Thank you for all of your efforts!

Sincerely,

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

Amarillo, Texas

App.100a

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

_______________________________

Tuesday, August 8th, 2017

Attorney Shelley Langguth

Office for Civil Rights

Office of Justice Programs

U.S. Department of Justice

810 7th Street, NW

Washington, DC 20531

Re: Payne v. Tex. Dep’t of Criminal Justice

(15-OCR-1258)

Dear Ms. Langguth:

First, the most recent letter that I have received

from your office was back on June 22nd, 2017. I

wanted to let you know that just case one may have

gotten lost in the mix from my transfer.

You may have already noticed, but I have been

assigned to the Robertson Unit. I was assigned a job

as a janitor on 8 Bldg. where offenders who have

been demoted in their classification status are housed.

There are medium custody (G4) & close custody (G5)

offenders housed in that bldg. Those offenders that

are G5 are one level from being demoted to administrative segregation. I am currently a G2. G1 is the

least restrictive classification level. The job is very

taxing and it is hot even though I work from 10pm to

6am. It’s great exercise. However, the job has aspects

to it that violate my doctor ordered work restrictions.

App.101a

Because of the psychotropic medications I take, I have

heat restrictions. Because of two lower back surgeries

prior to my arrest I have a no bending at the waist

restriction. With the second one, it puts me in an

awkward situation with my co-workers where I would

not feel comfortable informing them that I cannot do

certain things and that they have to pick up the slack

because of that restriction. So I do my best and do all

that I can to avoid that situation by bending at the

waist if I have to or use my legs. It also places me

between a rock and a hard place with officers who

are working where I work. If they ask me to do something that would require me to bend at the waist and

I say I cannot because of my work restriction, they will

most often write me a disciplinary case for refusing

to obey a direct order. It will stay on my record despite

a Step 1 & Step 2 appeal/grievance. I had that happen

to me while at Montford. I believe I sent you those

Step 1 & 2 appeals. These types of violations are

common throughout the TDCJ with respect to offender

who have disabilities. Discrimination is very rampant

all over the TDCJ when it comes to offenders with

mental illness/disabilities. Those of us with mental

illnesses who are on the psychiatric case load have a

designation in the TDCJ system where the officer &

administrative staff can see it. When they do and they

know we can work, we are only given three choices of

areas where we can work. They are in laundry, the

kitchen, or as a janitor. All three of those jobs violate

heat . . . .

[...]

App.102a

OFFENDER GRIEVANCE FORM

(APRIL 25, 2017)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2017126136

Date Received: Apr 25 2017

Date Due: 6-9-17

Grievance Code: 666

Investigator ID#: 2108

Date Retd to Offender: Mar 15 2017

Offender Name: Toby K. Payne

TDCJ# 1720023

Unit: Clements (12 Bldg.)

Housing Assignment: 12-C-54

Unit where incident occurred: Clements (12 Bldg.)

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Dr. Nguyen, Psychiatrist, CMI, 12 Bldg.

When? Tuesday, April 18th, 2017

What was their response?

If your blood pressure doesn’t come down, I

will have to put you back on old medication.

What action was taken?

App.103a

I informed her that I would work with medical

to get my BP down.

State your grievance in the space provided.

Please state who, what, when, where and the

disciplinary case number if appropriate

This grievance is being filed under Grievance

Code 672-MENTAL HEALTH PROGRAM ISSUES.

I’ve been on chronic high blood pressure since the fall

of 2015. I also recently went back on DFH. I also buy

the healthiest food items from commissary that I can.

I buy the multi vitamin, fish oil, & amino acid supplements from commissary and take than as directed.

I try to exercise as much as I can. However, I have

had two lower back surgeries and have to ensure

that I do not cause any more issues to my back. My

morale is not very high clue to the fact that I am

confined to my cell virtually 24 hours a day, 7 days a

week, 365 days a year. So I don’t “feel” like working

out very often. I am doing whatever I can to try and

keep my blood pressure down. It is no secret that the

Effexor that I am currently taking is known to also

cause high BP. The previous antidepressants I was

taking were not effective. Effexor is also both a SSRI

& SNRI and has had the absolute best results to the

betterment of my ongoing mental state. I asked Dr.

Nguyen to try and push for another medication that

was ask both a SSRI & SNRI that did not have the

negative problems of causing high BP. Now that we

know that my mental state is much improved by an

antidepressant that is both a SSRI & SNRI and the

fact that I am on chronic high BP, I probably should

be moved to an antidepressant that is both a SSRI &

SNRI that doesn’t cause my BP to be consistently high.

Otherwise, it could be argued that it is the psychotropic

App.104a

medication that is really causing my persistent hypertension and is keeping me from reaching more acceptable levels of BP. As stated above, I am doing virtually

all that I can to keep my BP low. NOW, if mental

health, with me being in a controlled psychiatric treatment program called Chronic Mentally Ill AND my

diagnosis being schizoaffective disorder, cannot get

a better antidepressant that is still both a SSRI &

SNRI, then maybe I need to be transferred to the Texas

State Hospital System per Texas Health & Safety

Code § 501.113 where I can have access to all appropriate medications that I may need without having

to author a grievance such as this one.

*** (END OF STATEMENT) ***

App.105a

PLAINTIFF DECLARATION

AND MOTION FOR TRO AND/OR PI

(DECEMBER 8, 2019)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

________________________

TOBY K. PAYNE # 1720023,

Plaintiff,

v.

JAMES SUTTERFIELD, ET AL.,

Defendants.

________________________

Civil Action No. 2:17-CV-00211

Plaintiff’s Toby K. Payne #1720023, makes the

following declaration and motions this court for a

Temporary Restraining Order and/or Preliminary

Injunction.

On 12/3/2019, I was transferred back to the

Chronic Mentally Ill Sheltered Housing (C.M.I.)

program at the Clements Unit in Amarillo, Texas.

During my most recent trip to the Montford Unit’s

psych ward, it was suggested by mental health staff

that I should return to the CMI program and I reluctantly agreed. Not long after that, I was informed that

I had been accepted. However, I was still discharged

from Montford Psych. and transferred back to the

App.106a

Robertson Unit. At the time, I was already eligible

for review to be promoted in custody level from G5 to

G4 and it was noted for approval by the Robertson

Unit’s Unite Classification Committee (U.C.C.)

As a G4 in regular Housing, I was able to enjoy

TV and dayroom activities from 7 a.m. to 11 a.m.,

The ability to walk to and eat in the chow hall for all

three meals. Attend church service on Sunday

Mornings. Take a shower between 7 a.m. to 11 a.m.

While in the dayroom, walk to the medication window

on my building, and enjoy basic physical social interaction with my fellow inmates.

Upon arrival at the Clements Unit, I was issued

one jacket (I use it for a pillow), one sack lunch that

did not conform with medical orders to only serve me

diet for health (D.F.H.) meals, a small amount of

toilet paper off the roll, four small pieces of green

state issued soap, one wool blanket and two sheets. I

am assigned to a solitary single occupancy cell in 12

building, A pod, 4 section, 46 cell. Upon entering the

cell, I noticed there was no mattress. I informed my

pod officer and was told that there were none available

on the building. I turned in a step one grievance on

this issue on 12/4/2019 and to date have received no

response. I wrote the warden’s office both on 12/5/2019

and 12/6/2019 and received no response. I have

counted a least five inmates on my section alone who

still do not have a mattress including me. Officer

after Officer walk by our cell looking in and seeing

that we are sleeping directly on the steel bank and

do nothing. I have yet to notice a supervisor walk by.

To date, I have still not been issued a mattress. The

heater does not work well and it is cold in here. The

two sheets and blanket help by covering up. However,

App.107a

the steel bank is very unforgiving and cold. I can barely

sleep.

From 12/4/2019 until 12/6/2019, I was not afforded

the opportunity to shower or use my one hour of

recreation because officers claimed that there was a

staff shortage. However, on these days, I noticed two

officers on the floor and one in the Picket. This is the

minimum to run showers and rec. On 12/7/2019 we

were afforded these opportunities. However as mentioned in this action, recreation and showers are only

offered beginning at 5:30 a.m. when most of us are

asleep and most likely to turn it down. Instead of

officers stopping at each cell to ask each inmate if

they want their rec. and shower and making a list,

the inmate must be standing at their door when the

officer performs their first walk for the shift beginning

sometime around 5:30 a.m. Not all offenders have

clocks. I do, so if the offender is not up and at his

door, then they do not get their rec. and shower.

Remember, all of these offenders are mentally ill and

are taking psych. Meds. On days that we are afforded

the opportunity to exercise these privileges/rights, I

chose not to accept them. I can recreate more in my

cell at the times that I choose to than I can either in

the small dayroom or small rec. yard by myself. I

bathe when I choose to by sitting backwards on my

toilet and pouring sink water over myself using my

coffee cup. The very important thing to know here is

that no matter what the offender’s actual custody

level is, all of is in the C.M.I. program are treated as

high security high risk administrative segregation

offenders. This building was designed to be self

contained to those psychiatric offenders. it has

classrooms that are never used and a small chowhall

App.108a

that has been converted into an employee break

room. This building even has its own commissary

window to allow offenders to walk to the commissary

window. But this is not done. Any service that can be

provided to us in the C.M.I. program that can be

done while the inmate is kept in his cell is done this

way.

To date, I have yet to receive any psych counseling

or even be seen by my mental health counselor

(psychologist). I was seen briefly by my psychiatrist,

Dr. Nguyen, cell side on 12/6/2019. It was not a private

meeting because an officer was escorting her. The

only difference I’ve noticed in the C.M.I. program

from the last time I was here is there is a camera

system installed now. The C.M.I. program to me is

just a cute name that covers for the actual warehousing

of the worst of the worst mentally ill inmates. The

only benefit to where I am at present at is that I have

a cell to myself. That’s it. I am split, I want to be here

for that reason and that reason alone. I have tried

everything within my power to get the mental health

help I need and cannot even find it in a program

called chronic Mentally Ill or even at Montford Psych.

All of the issue I complained about in this action are

still occurring. Things have come full circle.

I know how to do this kind of time. However,

Solitary confinement has a sneaky way of adversely

affecting a person in a way that they cannot sense. I

may or may not succumb to yet another mental

breakdown or psychiatric episode as mentioned in a

related case filed for retaliation, Payne v. Collier, et

al, #1:18-cv-00208 pending in the Abilene Division.

How many more before I succumb to suicide? I mentioned in the Collier case, in the initial complaint,

App.109a

that I fight off suicidal thoughts every day. I still do,

I do not tell anyone here because to do so would be

punishment in of itself as complained about in a case

dismissed by the Abilene Court Payne v. Almanza, et

al., #1:18-cv-00175, where I detail what happened to

me after admitted I was suicidal.

I motion this court to order the defendant in

their official capacity (the defendants in this action

have all moved on from what I can tell) to show

cause for the following:

(1) why I should NOT be issued a mattress in a

timely manner.

(2) Why I should be confined to my single occupancy cell virtually 24 hours a day and how

this benefits me being diagnosed with

schizoaffective disorder. A combination of

bi-polar disorder and psychosis.

On the evening of 12/7/2019, I was asked by the

mental health nursing staff to sign papers agreeing

to the terms and policies of the CMI program. I

informed them that I will not sign anything if they

cannot me a mattress. I was told I could be kicked

out of the program if I refuse to sign the papers.

I have spoken with a few of the inmates back

here and they have all basically told me that what

very little counseling they do get is often cancelled

because officer staff claims they are short of staff. This

excuse also interrupts showers and rec. So between

mental health staff employed by Texas Tech and

TDCJ. They have managed to convince 100+ inmates,

mentally ill inmates, the worst of the worst mental

health wise, to agree to be warehoused and be each

App.110a

confined to their cells virtually 24 hours a day for

months and in some cases, years at a time.

I respectfully invite this court (Your Honor) to

please read all the details in Payne v. Collier, et al.,

#1:18-cv-00208, pending in the Abilene Division. I

filed a notice of related case in this action pointing to

the Collier case for this very reason. The Collier case

was filed by me citing retaliatory efforts by TDCJ

officials by filing all six of my previous lawsuits. In

addition to Gov. Greg Abbott and Tex. Atty. Gen.

Ken Paxton, the Collier case names all 26 defendants

in all previous six lawsuits I filed in federal court

(Amarillo Division & Abilene Division). I have asked

the Abilene Court to consider consolidate this action

into the Collier Case. I respectfully ask your honor in

this action to come and tour the CMI housing area.

Lastly, one of the offender’s I am in shouting distance

from and communicating with is David Kelly. He is

one of the inmates who wrote a letter on my behalf

witnessing what the conditions are like in the CMI

program. Yes, he has been here the entire time. He

claims it is worst in the CMI program than when I

was here before.

PRAYER

It is my sincere prayer that this court strongly

consider all the TDCJ has put me through as documented in Payne v. Collier, et al, #1:18-cv-00208,

pending in the Abilene Division. I thank god that I have

a clock/radio, a good study bible, a Strong’s expanded

exhaustive concordance, a four volume set of the

Interlinear Bible to keep me somewhat grounded.

App.111a

I have filed a similar motion to this motion in

Payne v. Collier, et al. I humbly request this court

grant a hearing in this matter.

“I will make your oppressors eat their own flesh,

and they shall be drunk on their own blood as

with wine. Then all flesh shall know that I am

the Lord your Savior, your redeemer, the mighty

one of Jacob.”

Isaiah 49:26

INMATE DECLARATION

I declare under penalty of perjury that the foregoing is true and correct

Executed on 12/8/2019

Toby K. Payne #1720023

Respectfully submitted

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

Plaintiff, Pro Se

App.113a

PLAINTIFF’S MOTION FOR T.R.O. AND/OR

PRELIMINARY INJUNCTION WITH INMATE

DECLARATION IN SUPPORT

(SEPTEMBER 5, 2020)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

________________________

TOBY K. PAYNE,

Plaintiff,

v.

JAMES SUTTERFIELD, ET AL.,

Defendants.

________________________

Civil Action No. 2:17-CV-00211

I, Toby K. Payne, am the plaintiff in the above

styled action. I motion the court for a Temporary

Restraining Order and/or a Preliminary Injunction

ordering the defendants to show good cause on why I

should not be immediately transferred (rehashed)

back to general population and why my psychotropic

medications, Zyprexa 10mg (antipsychotic) & Effexor

75mg (antidepressant), should not be transferred with

me wherever I am transferred to.

App.114a

Inmate Declaration in Support

On December 3, 2019, I was forced to transfer

from general population at the Robertson Unit to

this same Chronic Mentally Ill (“C.M.I.”) treatment

program here at the Clements Unit. This action is

primarily about the 20 months I was previously in

this C.M.I. program. I was unduly and unlawfully

treated as an administrative segregation inmate and

confined to my single occupancy solitary confinement

cell virtually 24 hours a day. My actual custody level

then was general population level 2 (G2).

Presently, not much has changed in the way I

am treated in this C.M.I. program. In fact, I would

say that the situation has gotten worse. Now, I am

Literally kept in my cell 24 hours a day in solitary

confinement. My current actual classification level is

G4. I will be eligible for promotion to G2 in November

2020. I have formally asked to be discharged from

C.M.I. several times in the past few months only to

basically ignored.

At the beginning of this year, I did go through a

few months of mental instability because of the

conditions of this type of confinement and the fact

that I was forced to come here. Stripped of all my

general population rights and privileges. My medications have changed several time and properly adjusted

and I have been mentally stable for several months

now. I’ve told the mental health staff several times

that this type of confinement is now doing me more

harm than good.

This C.M.I. program cannot really be called a

treatment program. Hardly any counselling is provided.

My counselor can only counsel me cell-side for about

App.115a

5 minutes once per week. While at the Roberson

Unit, my Counselor Ms. Rowland, counseled me once

a week in her office for 30 to 45 minutes each session.

I am supposed to get only one hour of recreation outside my cell and a shower each day. But even these

basic rights are denied virtually every day due to

actual staff shortages of officers. I have to bathe

myself by sitting reverse on my toilet and using my

coffee cup to pour water over myself. I recreate in my

cell by pacing diagonally 7 steps one way.

This type of solitary confinement of the mentally

ill is nothing more than the unlawful warehousing of

mentally unstable (and some stable) men. I liken it

to a pound for stray cats and dogs. Only our cages

are bigger. This type of Solitary confinement, with no

promise of ever returning to general population, is

causing me extreme mental anguish. No human being

is built to be confined in solitary confinement 24 hours

a day for months are years on end. I am no exception.

I already suffer from a mental disorder called

schizoaffective disorder. This type of confinement,

with virtually no therapy, only worsens my condition.

Up until the end of June and the beginning of July

2020 I had lost all hope of a future with a purpose

and attempted to hang myself. I still have the scar

on my neck from it. I also tried to bite the veins out

of my left wrist and still have that scar. It is only by

the grace and mercy of God that I got Past being

suicidal. I was provided no therapy for it. I counseled

with God, I also counseled with my mother and stepfather via mail. It takes an incredible amount of

faith for me to muster in order to make it through

each day. I can barely keep my head above water

App.116a

mentally speaking. I keep my radio tuned in to 99.7

Radio by Grace here in Amarillo.

There are about 234 other men based where I

am based. Most of them are severely mentally instable

and will not get better because they, like me, are

being neglected. I have to listen to one inmate down

the row from me bang his food tray on his desk a

various times a day. This same inmate stops up his

toilet and floods the whole row out. The inmate next

to him beats on his cell door in fits of rage while

yelling things I cannot understand. Every time a

nurse comes around, my neighbor yells the same

rehearsed expression of some constitutional violation. My neighbor below me yells in the vent vulgar

things about Jesus because he knows I am a follower.

This type of confinement is causing me irreparable

mental harm. I don’t want to, but I could slip into a

suicidal state again. I am unduly being denied many

privileges and rights that I did nothing to lose. I am

cut off from fellowshipping with other inmates. I

cannot attend religious services. I cannot walk to the

chowhall to eat. I cannot walk to the infirmary. I

cannot walk to the regular library or attend sessions

in the law library. I cannot use offender telephone

system to call my family. I cannot recreate as a G4/G2

inmate. I am not receiving nearly as much counseling

as I was when I was in population. To add insult to

injury, any time I leave my cell, I am handcuffed

behind my back for no reason at all. Other G4/G2’s

are not treated in this manner in population.

I do have a step 1 in process on why I cannot be

discharged from C.M.I. I can take up do 45 days to

process this grievance. Then I would have to file a

step two. Another 45 days. 90 days. I have attached a

App.117a

similar grievance submitted earlier this year. Sheltered

Housing is just another “Program” within C.M.I. I

was even told by a counselor that Sheltered Housing

inmates are not to be provided any counselling. Judging

from the response in the attached step 1, my current

step 1 on this issue and its response will not be

favorable to me. I’ve already been confined this way

for eight months.

I respectfully ask the court for a hearing on this

issue so I can verbalize this. It would be much easier

for me to do so. I can easily answer any questions the

court has and counter any arguments the defendants

have.

I declare under penalty of perjury that the foregoing is true and correct.

Executed On 9/5/2020

/s/ Toby K. Payne

Toby K. Payne #1720023

Clements Unit

9601 Spur 591

Amarillo, TX 79107

App.118a

OFFENDER GRIEVANCE FORM

(FEBRUARY 19, 2020)

Texas Department of Criminal Justice

Step 1 Offender Grievance Form

Office Use Only

Grievance #: 2020079385

Date Received: Feb 19 2020

Date Due: 4-4-20

Grievance Code: 672

Investigator ID#: 2763

Date Retd to Offender: Mar 26 2020

Offender Name: Toby K. Payne

TDCJ # 1720023

Unit: Clements

Housing Assignment: 12-E-75

Unit where incident occurred: Clements

You must try to resolve your problem with a staff

member before you submit a formal complaint.

The only exception is when appealing the results

of a disciplinary hearing.

Who did you talk to (name, title)?

Warden’s Office, Classification Chief (Unit) UCC

When? 2/14/2020

What was their response? None to date

What action was taken? None to date

State your grievance in the space provided,

Please State who, what, when, where and the

disciplinary case number if appropriate

App.119a

This grievance is mainly regarding the fact that

I am presently a G4 custody level offender who has

requested numerous time to C.M.I. mental health staff

to be discharge from C.M.I. and immediately transferred back to GP. I am unduly & unlawfully housed

in an “Ad-Seg” environment against my will. C.M.I.

staff has granted my discharge by moving me from

Level 3 to S.H. or Sheltered Housing according to counselor Farley & Dr. Nguyen, awaiting “Huntsville”

to transfer me back to population. Mental Health Staff

has told me that his transfer back to population could

take months or even a year. This makes no sense. I

presently have 4 active pending federal lawsuit against

TDCJ officials as follows: In the Amarillo Fed. Dist.

Court, Payne v. Sutterfield, et al., #2:17-cv-00211,

filed in Dec 2017 against TDCJ Officials and Texas

Tech Officials addressing this very CMI program for

unlawfully housing me back here as “ad-seg” for 20

months while I was a G2/G3 offender; Payne v.

Sutterfield, et al., #2:18-cv-00084 filed in 2018 against

CMI staff for not providing any transition counseling

back to GP when I was involuntarily discharged in

June 2017 and sent to Robertson; Payne v. Locle Davis,

#1:18-cv-00048 filed against TDCJ Roberson chief

officials for religious presumption for me wanting to

grow my beard. NOTE: In this suit I also indicated

that I shave my head for religious reasons as well. To

mourn the death of my son as the Hebrews did in the

OT of the Holy Bible. To date, since I’ve been here

(since 12/3/2019) I have not been provided any access

to grooming implements. Nor has a barber been sent

back here for haircuts, trim beards or nail clipping;

Lastly, Payne v. Bryan Collier, et al., #1:18-cv-00218BU (NOTE: These last two cases are pending in the

Abilene Fed. Dist. Court) filed in Dec, 2018 against

App.120a

state level, TDCJ & Texas Tech Officials for retaliation

against me for filing previous lawsuits.

Now, I am currently eligible for promotion to G2.

On Monday 2/10/2020 I was brought before UCC and

only told I was Promoted to Line 1. I was told no cases

for a year. So why was I not also reviewed and

promoted to G2? I mentioned the lawsuits not as a

threat but to inform you that I can and will file a motion

for a preliminary injunction to acquire my inmate

transfer back to the general population. It should take

no more than 72 hours for “Huntsville” to transfer me

back to Robertson or elsewhere in population. The court

should not have to get involved on this particular

process. If it should have to come to that, it would

not reflect well on the defendants. I-60’s Sent to UCC

& Warden’s office regarding issue on 2/14/2020.

*** END OF STATEMENT ***

Action Request to resolve your complaint

Please, Please Transfer me back to general population and properly review me for promotion to G2.

/s/ Toby K. Payne

Offender Signature

Date: 2/15/2020

Grievance Response of your records documentation

indicates that you were discharged from CMI and

Referred to Sheltered Housing which is a TDCJ

Housing assignment. No further action warranted

/s/ {illegible}

Signature Authority

Date: 3-9-2020