Diez v. Collier et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JAMES LOGAN DIEZ, §
§
§
§
§
§
§
§
§
Plaintiff,
v. CIVIL ACTION NO. 2:25-CV-00185
BRYAN COLLIER, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff James Logan Diez, proceeding pro se, has filed this prisoner civil rights lawsuit
under 42 U.S.C. § 1983. (Doc. Nos. 6, 6-1, 6-2.) He has paid the filing fee. Pending is a motion
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. No. 28.)
The district court should GRANT that motion and DISMISS this case.
A. Proceedings.
Plaintiff is a prisoner at the Texas Department of Criminal Justice-Correctional
Institutions Division’s (“TDCJ-CID’s”) McConnell Unit in Beeville, Texas. Plaintiff initiated
this action by moving, ex parte, for the issuance of a temporary restraining order (“TRO”)
pursuant to Federal Rule of Civil Procedure 65(b). (Doc. No. 1.) He then separately filed a
complaint and a second motion for a temporary restraining order. (Doc. Nos. 6, 7.) In his
complaint, Plaintiff sues the then-Executive Director of TDCJ, Bryan Collier (“Director
Collier”), as well as the then-director of TDCJ-CID, Bobby Lumpkin (“Director Lumpkin”).
Plaintiff states that he sues both defendants in their official and individual capacities. Id. at 1.
United States District Court
Southern District of Texas
ENTERED
April 27, 2026
Nathan Ochsner, Clerk
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Director Lumpkin has now succeeded Director Collier as TDCJ’s Executive Director.
The Court previously substituted Director Lumpkin for Director Collier to the extent Plaintiff
sues Director Collier in his official capacity. (Doc. No. 21, p. 2 n.2.) Eric Guerrero (“Director
Guerrero”) has succeeded Director Lumpkin as the director of TDCJ-CID, and the Court
previously substituted Director Guerrero for Director Lumpkin to the extent Plaintiff sues
Director Lumpkin in his previous official capacity. Id. n.3.
The undersigned recommended that the district court deny Plaintiff’s requested TROs.
(Doc. No. 10.) The district court adopted that recommendation and denied the TROs. (Doc. No.
13.) After service of process, Director Lumpkin and Director Guerrero filed an answer, in which
they, among other things, raised the defense of qualified immunity. (Doc. No. 24.)1 The Court
directed the defendants to file either a motion for judgment on the pleadings or a motion for
summary judgment, or alternatively to advise the Court that their assertion of qualified immunity
depended on the resolution of disputed factual matters. (Doc. No. 26.)
Director Lumpkin and Director Guerrero then filed this Rule 12(c) motion. (Doc. No.
28.) Plaintiff has responded. (Doc. No. 31.) Director Lumpkin and Director Guerrero have filed
a reply. (Doc. No. 32.)
B. Background and allegations.
In his complaint, Plaintiff alleges a violation of his First Amendment rights, as well as a
violation of a section of the Texas Government Code. (Doc. No. 6, p. 4 (“Director Collier has
[implemented] a policy that violates my First Amendment right not to speak and places me in
great danger.”) (emphasis deleted); id. (“CID Dir. Lumpkin is enforcing the policy that violates
1 In the answer, counsel for Director Lumpkin and Director Guerrero states that she represents only those two
defendants. Id. at 1 n.1. Director Collier does not appear to have filed an answer or any other responsive pleading.
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my First Amendment right not to speak and placed me in imminent danger.”) (emphasis deleted);
Doc. No. 6-2, p. 5 (citing Tex. Gov’t Code § 500.001).)2
Plaintiff alleges that TDCJ has instituted a policy that places him in unusual danger of
physical harm at the hands of other inmates. Plaintiff purports to quote from the alleged policy,
claiming that it states:
TDCJ has a zero-tolerance policy for contraband and drug use in our facilities.
Due to an increasing number of incidents related to drugs and contraband on your
unit, effective February 1, 2025, any contraband-related incident will result in an
immediate 15-day suspension of all activities, except for medical.
This is a temporary suspension of activities, because the drugs in your housing
area have created a health and safety emergency.
…
We know not all of you are participating in these dangerous activities. We are
asking for your help in saving lives of your peers and [stopping] these lockdowns.
(Doc. No. 6-1, p. 2 (emphasis in Plaintiff’s original).) The undersigned refers to this alleged
policy as the “Lockdown Policy.”
According to Plaintiff, the Lockdown Policy “attempts to coerce/compel” TDCJ-CID
inmates
to inform/”snitch” on their fellow prisoners. This coercion/compulsion is
imposed through an official policy which places all prisoners in a housing area
(i.e. 18-110 inmates) on punitive lockdown & suspension of privileges for 15 days
if any single prisoner is caught with contraband/drugs and no one in the housing
area “snitched” on him (or her).
(Doc. No. 6, p. 5) (cleaned up, emphasis deleted).
Plaintiff alleges that the Lockdown Policy places him at an unusually high risk of being
assaulted. He claims that he is a “Creation Naturist Disciple of Light Minister.” (Doc. No. 6-2,
2 In his response to Defendants’ motion, Plaintiff alleges that he has also brought claims under the Eighth and
Fourteenth Amendments. (Doc. No. 31, p. 1.) This topic is discussed in greater detail later.
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p. 5.) His anti-drug position, he says, is well known amongst other prisoners, and this renders
him “a suspect anytime one of the Users/Traffickers of drugs gets reported by someone ….” Id.
Plaintiff claims that the Lockdown Policy’s result is an “extremely high risk environment …
more so than existed prior to the 15-day lockdown policy’s being put into effect.” Id. (ellipses
in original).
As relief, Plaintiff seeks a “declaration that the policy violates the U.S. Constitution” and
injunctive relief “to bar enforcement of the policy” and “to prohibit the policy and/or any
iteration of it.” (Doc. No. 6, p. 5.) He contends that he “seeks no monetary damages,” but does
request reimbursement of his costs in bringing this suit. Id.; Doc. No. 6-2, p. 6.
C. The defendants’ motion, Plaintiff’s response, and the reply.
Attacking Plaintiff’s suit against them in their individual capacities, Director Lumpkin
and Director Guerrero seek judgment on the pleadings under Federal Rule of Civil Procedure
12(c). They argue that Plaintiff’s First Amendment compelled speech claim fails because he is
not being compelled by the Lockdown Policy or by any defendant to say anything or provide any
information. (Doc. No. 28, p. 4 (“While the notice is seeking help through inmate ‘speech,’ it is
certainly not requiring it or compelling Plaintiff to act.”).) These defendants also contend that
Plaintiff’s asserted injury – heightened risk of future assault – is too speculative to merit relief.
Id. at 6-7. Additionally, Director Lumpkin and Director Guerrero assert that Plaintiff cannot
bring a § 1983 action alleging a violation of a state statute like section 500.001 of the Texas
Government Code. Id. at 7-8. The defendants argue that Plaintiff lacks Article III standing to
seek declaratory or injunctive relief, and that his requested injunctive relief exceeds the scope
permitted by the Prison Litigation Reform Act. Id. at 8-11. These defendants additionally
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contend that Plaintiff’s official-capacity claims are barred by the Eleventh Amendment. Id. at
12-15.
With regard to the claims against him in his individual capacity, Director Lumpkin also
asserts that he is entitled to qualified immunity from suit.3 This, he argues, is because Plaintiff
fails to plausibly allege the violation of any federally protected right and because Plaintiff fails to
show that his actions violated clearly established law. (Doc. No. 28, pp. 16-18.) He also argues
that Plaintiff fails to plead any individual-capacity defendant’s personal involvement in any
complained-of act. Id. at 15-16.
Resisting the defendants’ motion, Plaintiff contends that his lawsuit includes claims not
just for violation of the First Amendment, but also for violations of the Eighth and Fourteenth
Amendments. (Doc. No. 31, pp. 1-2.) In addition to the coerced speech claim, he insists, his suit
includes an Eighth Amendment claim for the “very dangerous environment” created by the
Lockdown Policy, to which the defendants are allegedly deliberately indifferent. Id. at 2, 4. His
Fourteenth Amendment due process rights have been violated, Plaintiff argues, by virtue of the
lockdowns suffered by all prisoners whenever a drug addict in their housing area violates the
rules. Id. at 2.
Plaintiff accuses the defendants of disingenuously characterizing the Lockdown Policy as
a mere request for help rather than a requirement that Plaintiff and others “act as snitches and
rule violation investigators” if they want to stop the lockdowns. (Doc. No. 31, p. 3.) Regarding
the defendants’ qualified immunity argument, Plaintiff cites several due process cases dealing
3 With regard to the individual-capacity claim, the defendants confusingly refer to the substitution of Director
Guerrero for Director Collier. See Doc. No. 28, p. 15. Director Guerrero has been substituted for Director Collier
only with regard to the claims filed against Director Collier in his official capacity. (Doc. No. 24.) No individual-
capacity claim has been lodged against Director Guerrero. The undersigned construes the Rule 12(c) motion as
being filed by Director Lumpkin only (and not by Director Collier) with regard to the individual-capacity claim.
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with mass punishment of prisoners and argues that “that’s pretty well settled law, and
Defendants should be very well aware of the ‘well settled law.’” Id. at 4-5.
In their reply, Director Lumpkin and Director Guerrero argue that Plaintiff made no
mention of an Eighth or Fourteenth Amendment claim in his complaint and that he cannot raise
such claims for the first time in response to this motion for judgment on the pleadings. (Doc.
No. 32, pp. 1-2.) Instead, they contend, the Court must evaluate only the operative complaint
and its properly incorporated allegations. Id. at 2. “[S]cattered references, passing labels, or
arguments embedded in later filings are not substitutes for pleading actual causes of action.” Id.
at 3.
D. Federal Rule of Civil Procedure 12(c).
Rule 12(c) motions are designed “to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to the substance of the
pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd., 914
F.2d 74, 76 (5th Cir. 1990) (citing 4A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1367 at 509-10 (1990)).
The standard for assessing such motions is the same as that for a Rule 12(b)(6) motion to
dismiss. See Laviage v. Fite, 47 F.4th 402, 405 (5th Cir. 2022). The “central issue is whether, in
the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Karonka v.
Asuka Blue Investment, LLC, No. 4:23-CV-02891, 2024 WL 4905985, at *1 (S.D. Tex. Nov. 27,
2024) (Hoyt, J.) (internal quotation omitted). A reviewing court is to accept all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff. See Martin K. Eby Constr.
Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004).
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Documents filed by pro se litigants are to be liberally construed, and pro se complaints,
however inartfully drafted they might be, are held to less stringent standards than formal
pleadings drafted by lawyers. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Estelle v. Gamble, 429 U.S. 97, 106
(1976). But even so, mere legal conclusions are not entitled to a court’s acceptance, nor are
threadbare recitals of elements of a cause of action supported by mere conclusory statements.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). Additionally, conclusory allegations and unwarranted deductions of fact are not
accepted as true: a plaintiff must plead “‘specific facts, not mere conclusory allegations’ to state
a claim for relief that is facially plausible.” See Powers v. Northside Indep. Sch. Dist., 951 F.3d
298, 305 (5th Cir. 2020) (quoting Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th
Cir. 1994)). And legal conclusions masquerading as factual conclusions likewise will not suffice
to prevent the granting of a motion to dismiss. See Fernandez-Montes v. Allied Pilots Ass’n, 987
F.2d 278, 285 (5th Cir. 1993).
As applied here, Plaintiff must plead “‘enough facts to state a claim to relief that is
plausible on its face.’” Summers v. Hinds Cnty., Miss., 508 F. Supp. 3d 124, 129-30 (S.D. Miss.
2020) (quoting Twombly, 550 U.S. at 570). As Twombly clarified, and as Summers reiterated,
factual allegations “‘must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).’”
Summers, 508 F. Supp. 3d at 130 (quoting Twombly, 550 U.S. at 555).
E. The district court should dismiss Plaintiff’s individual-capacity claims.
As an initial matter, the district court should dismiss Plaintiff’s individual capacity claims
because he seeks only injunctive relief. “Section 1983 does not permit injunctive relief against
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state officials sued in their individual capacity.” Garza v. Escobar, No. 7:18-CV-249, 2019 WL
12267384, at *2 n.20 (S.D. Tex. July 1, 2019) (Alvarez, J.); accord Greenawalt v. Ind. Dep’t of
Corrs., 397 F.3d 587, 589 (7th Cir. 2005) (“section 1983 does not permit injunctive relief against
state officials sued in their individual as distinct from their official capacity”); Brown v.
Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (citing Hafer v. Melo, 502 U.S. 21, 30
(1991)) (“Section 1983 plaintiffs may sue individual capacity defendants only for money
damages and official capacity defendants only for injunctive relief.”); see also Scott v. Flowers,
910 F.2d 201, 213 (5th Cir. 1990) (injunctive relief sought by plaintiff could be obtained from
defendants only in their official capacities).
Several federal courts have concluded that “there is no basis for suing a government
official for declaratory and injunctive relief in his or her individual or personal capacity.” Hatfill
v. Gonzales, 519 F. Supp. 2d 13, 19 (D.D.C. 2007). This is because a public official can comply
with an injunction regarding performance or nonperformance of official duties only in his or her
official capacity, not as an individual acting personally. Cf. Feit v. Ward, 886 F.2d 848, 858 (7th
Cir. 1989) (challenged policy was carried out by defendants in their official capacities, and
requested relief could only be obtained from defendants in their official capacities, not as private
individuals).
Plaintiff states that he does not seek monetary damages. The district court should
therefore dismiss his claims against Director Lumpkin in his individual capacity.4
4 The fact that Plaintiff seeks reimbursement of his costs of bringing suit does not change this recommendation.
Plaintiff makes no claim for damages apart from monetary costs, and costs are distinct from monetary damages. See
Farrow v. Wrenn, No. 10-cv-058, 2010 WL 2407136, at *5 (D.N.H. June 9, 2010), adopted, 2010 WL 2793741
(July 14, 2010) (dismissing individual capacity claims for injunctive relief despite additional request for
reimbursement of filing fee); Fed. R. Civ. P. 54(d)(1); see also Aiello v. Collier, No. 2:21-CV-00067, 2023 WL
2072411, at *1 (S.D. Tex. Feb. 16, 2023) (Ramos, J.) (attorney fees and costs of litigation are “distinct from
damages”).
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Although Director Collier has not joined in the Rule 12(c) motion, it is appropriate to
dismiss Plaintiff’s individual-capacity claim against him as well. As discussed, Plaintiff seeks
only injunctive relief, and that relief is not available against a defendant in his or her individual
capacity. “The Fifth Circuit has recognized that, when one defending party establishes that the
plaintiff has no cause of action, this defense generally inures also to the benefit of other similarly
situated defendants.” Taylor v. Collier, Civ. No. H-21-2161, 2022 WL 2871819, at *4 n.2 (S.D.
Tex. July 21, 2022 (Rosenthal, C.J.) (citing Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001)).
“The policy rationale for this rule is that it would be incongruous and unfair to allow some
defendants to prevail, while not providing the same benefit to similarly situated defendants.”
Lewis, 236 F.3d at 768 (internal quotation marks omitted). In this case, Plaintiff’s claim for
injunctive relief is non-cognizable with respect to Director Collier for the same reason it is non-
cognizable with respect to Director Lumpkin. The district court therefore should dismiss
Plaintiff’s individual-capacity claim against Director Collier.
Because dismissal of the individual-capacity claims is appropriate, it is unnecessary to
determine whether Director Lumpkin and Director Collier are entitled to qualified immunity
from them.
F. The district court should dismiss the official-capacity First Amendment claim.
“Article III of the Constitution requires that federal courts hear only ‘cases’ and
‘controversies.’ U.S. Const. art. III, § 2. A lawsuit is not a ‘case’ unless the plaintiff has
standing to sue because they have a personal stake in the outcome of the lawsuit.” Lozano v.
Collier, No. 1:23-CV-68, 2026 WL 775939, at *2 (E.D. Tex. Feb. 24, 2026), adopted, 2026 WL
775858 (E.D. Tex. Mar. 18, 2026) (citing Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 110-
11 (2025)). Thus, prior to addressing the merits of Plaintiff’s official-capacity First Amendment
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claim, it is appropriate for the Court to consider the threshold issues of standing and Eleventh
Amendment immunity. See id.; Sweeney v. Holt & Young, P.C., Civ. No. H-22-1230, 2023 WL
4977803, at *1 (S.D. Tex. July 24, 2023) (Bray, M.J.), adopted, 2023 WL 4976193 (S.D. Tex.
Aug. 3, 2023); United States v. Tex. Tech Univ., 171 F.3d 279, 285 & n.9 (5th Cir. 1999).
1. Plaintiff lacks standing to bring his official-capacity First Amendment
claim.
A plaintiff possesses standing to bring a case in federal court if he establishes an injury
in fact, a causal connection between the injury and the defendant’s conduct, and the likelihood
that the injury will be redressed by a favorable outcome. See Diamond Alt. Energy, 606 U.S. at
111 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing that he has standing to bring this
suit. At the pleading stage, he must clearly allege facts demonstrating each element of standing
for each form of relief he seeks. See Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
The first requirement, injury in fact, requires the plaintiff to demonstrate an injury that
is “‘concrete,’ ‘particularized,’ and ‘actual or imminent, not speculative.’” Diamond Alt.
Energy, 606 U.S. at 111 (quoting FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 381
(2024)). “‘Allegations of possible future injury are not sufficient.’” Kovac v. Wray, 109 F.4th
331, 340 (5th Cir. 2024) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)
(emphasis in Clapper original)). Additionally, if the alleged harm does not infringe on a
cognizable legal right or interest, it is too abstract to confer standing. See Curling v.
Raffensperger, 776 F. Supp. 3d 1191, 1207 (N.D. Ga. 2025) (citing Koziara v. City of
Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) and Vermont Agency of Nat. Res. v. United
States ex rel. Stevens, 529 U.S. 765, 772 (2000)). An injury is “particularized” if it affects the
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plaintiff in a personal and individual way. See Spokeo, 578 U.S. at 339. An injury is
“concrete” if it is “‘de facto’; that is, it must actually exist … When we have used the adjective
‘concrete,’ we have mean to convey the usual meaning of the term – ‘real,’ and not ‘abstract.’”
Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431, 455 n.16 (N.D. Tex. 2024)
(quoting Spokeo, 578 U.S. at 339).
The causation element requires the plaintiff to show that the injury was likely caused by
the defendant, and the redressability element requires a demonstration that the injury “‘would
likely be redressed by judicial relief.’” Diamond Alt. Energy, 606 U.S. at 111 (quoting
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). When the plaintiff is not the object of
a government regulation or policy, the causation and redressability elements “often depend on
how regulated third parties not before the court will act in response to the government
regulation or judicial relief.” Id. at 112 (citing Alliance for Hippocratic Medicine, 602 U.S. at
383). A court must distinguish predictable from speculative effects of the governmental action
on such third parties; for the causation and redressability elements to be satisfied, a court must
conclude that third parties will likely react to the governmental action “in predictable ways”
that will likely cause (or redress) the plaintiff’s injury. See id. (quoting California v. Texas,
593 U.S. 659, 675 (2021)).
Because Plaintiff is seeking only prospective injunctive relief, he must “show that he
has sustained or is immediately in danger of sustaining some direct injury as the result of the
challenged official conduct and the injury or threat of injury must be both real and immediate,
not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)
(cleaned up). Plaintiff does not allege in this case that he has already suffered any injury, so in
this Rule 12(c) setting he therefore must plausibly allege that he is under threat of an actual and
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imminent (as opposed to conjectural or hypothetical) injury in fact. See Jefferson v. Abbott,
No. 3:24-CV-3065, 2025 WL 2754036, at *15 (N.D. Tex. Sept. 29, 2025) (citing Lyons, 461
U.S. at 105).
With his First Amendment claim, Plaintiff fails to establish an injury in fact, and
therefore lacks standing to sue. First, regarding lockdowns, he fails to allege any cognizable
injury. Convicted prisoners have no constitutional right to be free from lockdown for any
particular period of time: placement in lockdown, either as an individual or as a group, does not
present an “atypical, significant deprivation[] of liberty in relation to the ordinary incidents of
prison life.” See Johnson v. Lewis, 335 F. App’x 481, 482 (5th Cir. 2009) (citing Sandin v.
Conner, 515 U.S. 472, 486 (1985)). Plaintiff does not allege anything about the lockdowns that
suggests they are or would be atypical or significant in nature. Because the lockdowns (either
past or potential future ones) do not infringe on a cognizable legal right or interest, they are too
abstract to confer standing. See Curling, 776 F. Supp. 3d at 1207.
Plaintiff’s theorized risk of future assault by other inmates is too speculative to merit the
prospective injunctive relief he seeks. He alleges that the Lockdown Policy has created a “very
dangerous environment” for him because his allegedly well-known abstinence from drugs
would make him a suspected informant anytime a drug user or trafficker is reported by
someone. (Doc. No. 6, p. 5; Doc. No. 6-2, p. 5.) Plaintiff claims he has witnessed three
beatings of suspected informants by drug traffickers or dealers, and assesses that the prison
environment is more dangerous than it was prior to implementation of the Lockdown Policy.
(Doc. No. 6-1, p. 4; Doc. No. 6-2, p. 5.) Plaintiff does not allege that he has been assaulted
himself (or even threatened with assault), and he does not appear to allege that he has witnessed
anyone being assaulted because the unit was locked down after contraband was discovered.
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His claim is limited to an argument that he is at greater risk of being assaulted if he is suspected
of informing prison officials about contraband in the unit.
This is not enough. Because he is seeking prospective injunctive relief, Plaintiff must
do more than allege a possible future injury. See Clapper, 568 U.S. at 409. In this Rule 12(c)
setting, he must plausibly allege that he has sustained or is immediately in danger of sustaining
some direct injury as the result of the challenged official conduct; moreover, the threat of injury
must be both real and immediate, not conjectural or hypothetical. See Lyons, 461 U.S. 95 at
101-02. Instead, Plaintiff theorizes merely that he is more likely to be assaulted by inmates
who suspect him of having “snitched.” Even assuming that one or more lockdowns have
already occurred pursuant to the Lockdown Policy, Plaintiff fails to plausibly allege that he
faces imminent – as opposed to hypothetical – danger of assault. Plaintiff’s claim not only fails
to allege a plausible threat of “imminent” assault – it fails to allege a plausible, non-speculative
threat of assault at all. Because his allegation merely hypothesizes some potential future injury,
Plaintiff fails to plausibly allege an injury in fact, and he therefore lacks Article III standing to
bring his First Amendment claim for prospective injunctive relief. The district court should
dismiss Plaintiff’s First Amendment claim for this reason alone.5
In-depth discussion of the causation and redressability elements of Article III standing
is not necessary, because Plaintiff fails to plausibly allege an injury in fact. But the
5 Plaintiff’s request for declaratory relief is likewise undone by his inability to plausibly allege any non-conjectural
future injury. Declaratory relief is prospective in nature. See City of San Antonio, Tex. v. Hotels.com, No. SA-06-
CA-381, 2013 WL 12202485, at *1-*2 (W.D. Tex. Jan. 29, 2013). Thus, to satisfy Article III’s case or controversy
requirement, a party seeking a declaratory judgment, like a party seeking prospective injunctive relief, must allege
facts from which it appears there is a substantial likelihood that the party will suffer injury in the future. See
Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 375 (5th Cir. 2021) (citing Stringer v. Whitley, 942 F.3d
715, 720 (5th Cir. 2019); Serafine v. Crump, 800 F. App’x 234, 236 (5th Cir. 2020) (per curiam) (Lyons’ reasoning
applies equally to declaratory relief); see also Martin v. Keitel, 205 F. App’x 925, 928 (3d Cir. 2006). As discussed
in the main text, Plaintiff’s allegation of potential future injury is too speculative to confer standing, so he also lacks
standing to request declaratory relief.
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undersigned notes that Plaintiff fails on these counts as well. At this stage of the proceedings,
Plaintiff must plausibly allege that there is a causal relation between an injury in fact and the
conduct to be enjoined, and that it is likely, rather than speculative or hypothetical, that a
favorable judicial decision will prevent or redress that injury. See Teesdale v. City of Chicago,
690 F.3d 829, 836-37 (7th Cir. 2012) (citing Goldhamer v. Nagode, 621 F.3d 581, 586 (7th Cir.
2010)). Plaintiff’s allegations do not satisfy the causation element, because he does not explain
how the Lockdown Policy causes him to be at increased risk of injury. He claims that TDCJ’s
actual practice is to refrain from locking down a housing area if contraband is found after an
inmate “snitches,” but he also alleges that inmate-on-inmate assaults and beatings occur
regularly even when the victim is not suspected of providing information. See Doc. No. 6-1, p.
4 (Plaintiff alleges witnessing 17 inmate-on-inmate beatings, only three of which were of
suspected informants). Plaintiff’s allegation fails to describe a sufficient causal connection
between the Lockdown Policy and any increased risk of harm to him. For this same reason, he
likewise fails to show how his requested prospective injunctive relief would reduce a risk of
harm to him.
Plaintiff lacks Article III standing to bring his First Amendment claim. The district
court should dismiss it.
2. Alternatively, Director Lumpkin and Director Guerrero are immune from
Plaintiff’s First Amendment claim under the Eleventh Amendment.
The defendants also argue that they are immune from suit in their official capacities
thanks to the Eleventh Amendment. (Doc. No. 28, pp. 12-15.) Ordinarily, federal courts lack
jurisdiction over suits against a state, a state agency, or a state official in his or her official
capacity unless that state has waived its sovereign immunity or Congress has clearly abrogated
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that immunity. See Daniels v. Torrez, No. 4:25-cv-01219, 2025 WL 4056582, at *2 (S.D. Tex.
Nov. 7, 2025) (Bryan, M.J.), adopted, 2025 WL 3684863 (S.D. Tex. Dec. 12, 2025). The
Eleventh Amendment does not bar prospective injunctive relief against a state actor in his or
her official capacity, however, based on an alleged ongoing violation of the federal
constitution. See K.P. v. LeBlanc, 729 F.3d 427, 439 (5th Cir. 2013); see generally Ex parte
Young, 203 U.S. 123 (1908). Texas has not waived its sovereign immunity to suit, and Plaintiff
does not identify any congressional abrogation of that immunity. The defendants therefore
enjoy sovereign immunity from suit in their official capacities unless the Ex parte Young
exception applies.
The Ex parte Young exception is meant to provide prospective relief to prevent future
constitutional violations. See Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054
(5th Cir. 1998). The exception does not apply here because the Lockdown Policy, as allegedly
written, does not violate federal law. To recap, Plaintiff alleges that TDCJ’s policy states:
TDCJ has a zero-tolerance policy for contraband and drug use in our facilities.
Due to an increasing number of incidents related to drugs and contraband on your
unit, effective February 1, 2025, any contraband-related incident will result in an
immediate 15-day suspension of all activities, except for medical.
This is a temporary suspension of activities, because the drugs in your housing
area have created a health and safety emergency.
…
We know not all of you are participating in these dangerous activities. We are
asking for your help in saving lives of your peers and [stopping] these lockdowns.
(Doc. No. 6-1, p. 2 (emphasis in Plaintiff’s original).) As discussed, the imposition of
lockdowns on convicted prisoners is among the normal incidents of prison life, and does not
result in a cognizable injury. Therefore, Plaintiff fails to plausibly allege that prospective
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injunctive relief he seeks would prevent future constitutional violations, and Ex parte Young
does not afford an exception to sovereign immunity in this case.
Plaintiff recognizes that the Lockdown Policy does not specifically state that lockdowns
would be averted if a prisoner provides information leading to the discovery of contraband, but
states that this is in fact the practice. See Doc. No. 1, pp. 1, 2. Applicability of the Ex parte
Young exception requires that the state official, by virtue of his office, must have some
connection with the enforcement of the challenged act. Otherwise, the suit merely makes the
official a party as a representative of the state, thereby attempting to make the state a party. See
City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019); Young, 209 U.S. at 157. Here,
Plaintiff fails to establish sufficient connection between the defendants and the alleged in-
practice enforcement of the Lockdown Policy: even assuming Director Lumpkin and Director
Guerrero can be viewed as having implemented the Lockdown Policy, Plaintiff offers no
plausible allegation that they directed lockdowns not occur if a prisoner “snitches.” Because
there is no plausibly alleged connection between the named defendants and the relief sought,
the district court should conclude that relief under the Ex parte Young exception is not
available.
3. It is unnecessary to consider whether the Lockdown Policy violates the First
Amendment.
Plaintiff lacks Article III standing to bring his First Amendment claim. Director Lumpkin
and Director Guerrero enjoy sovereign immunity from his claim in their official capacities, and
relief is unavailable against them in their individual capacities. Dismissal of Plaintiff’s First
Amendment claim is therefore appropriate. It is a longstanding principle of judicial restraint that
courts “avoid reaching constitutional questions in advance of the necessity of deciding them.”
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Camreta v. Greene, 563 U.S. 692, 705 (2011). The undersigned therefore does not address
whether the Lockdown Policy violates any First Amendment right not to speak or to provide
information to prison officials.
G. Plaintiff’s state law claim is not cognizable in this § 1983 action.
Also subject to dismissal is Plaintiff’s claim that the defendants violated section 500.001
of the Texas Government Code by allegedly placing prisoners into a supervisory capacity over
other prisoners. See Doc. No. 6-2, p. 5. Violations of state law are not actionable under § 1983.
Martin v. Burgess, __ F.4th __, 2026 WL 1084252, at *4 (5th Cir. Apr. 22, 2026) (citing San
Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 n.4 (5th Cir. 1991).
H. Plaintiff has not raised Eighth and Fourteenth Amendment claims. The district
court should deny leave to amend to add any such claims in this case.
In his response to the Rule 12(c) motion, Plaintiff argues that the defendants failed to
address his claims under the Eighth and Fourteenth Amendments: he contends that his lawsuit
includes claims not just for violation of the First Amendment, but also for violations of the
Eighth and Fourteenth Amendments. (Doc. No. 31, pp. 1-2.) The Eighth Amendment claim, he
says, assails the “very dangerous environment” created by the Lockdown Policy, to which the
defendants are allegedly deliberately indifferent. Id. at 2, 4. The Fourteenth Amendment due
process claim, meanwhile, arises from punishment Plaintiff claims he suffers (along with other
prisoners) in the form of lockdowns whenever a drug addict in their housing area violates the
rules. Id. at 2. Director Lumpkin and Director Guerrero argue in reply that Plaintiff made no
mention of any Eighth or Fourteenth Amendment claim in his complaint, and argue that he
“cannot expand the case by later briefing.” (Doc. No. 32, pp. 1-2.)
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The pending motion is one for judgment on the pleadings. See Fed. R. Civ. P. 12(c).
Federal Rule of Civil Procedure 7(a) defines “pleadings” as including the following: (1) a
complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a
counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-
party complaint; and (7) if the court orders one, a reply to an answer. When considering a
motion for judgment on the pleadings, a court “‘may rely on the complaint, its proper
attachments, documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.’” Brush v. Wells Fargo Bank, N.A., 911 F. Supp. 2d 445, 458
(S.D. Tex. 2012) (Rosenthal, J.) (quoting Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)).
Motions for preliminary injunction or TRO are not included in the definition of
“pleadings.” See Fed. R. Civ. P. 7(a). Neither party has identified authority indicating that a
motion for TRO is part of the “pleadings” for purposes of Rule 12(c) if it does not otherwise
satisfy the criteria for documents a court can consider in evaluating the Rule 12(c) motion. And
conversely, although case law appears to be relatively scarce, authority indicates that claims
forming the basis for a TRO must be part of the operative complaint. See Perez v. San Miguel
Homes for the Elderly, LLC, No. 15-CV-05556, 2016 WL 3709622, at *1 (N.D. Cal. Feb. 9,
2016).
Here, Plaintiff’s Eighth and Fourteenth Amendment claims are not properly before the
Court. As an initial matter, Plaintiff does not mention a Fourteenth Amendment claim in his
complaint or in either of his motions for a TRO or their supporting memoranda. Plaintiff’s
Fourteenth Amendment claim, therefore, is broached for the first time in his response to the Rule
12(c) motion. See Doc. Nos. 1, 6, 6-1, 6-2, 7, 9.
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Meanwhile, the complaint itself contains no Eighth Amendment claim. See Doc. No. 6.
Attached to the complaint are an appendix with an “explanatory note” and a “supporting brief,”
but those documents do not contain any Eighth Amendment argument, either. See Doc. Nos. 6-
1, 6-2. Also attached to the complaint is the second motion for TRO (Doc. No. 7), but that
document also lacks any mention of an Eighth Amendment claim.
Plaintiff did mention the Eighth Amendment in his first motion for TRO (Doc. No. 1, p.
2), but he did not do so in his subsequent complaint or in the second motion for TRO. See Doc.
Nos. 6, 6-1, 6-2, 7, 9. Although he stated that the second motion for TRO was “attached to
original complaint at time of filing” and asked that the second motion for TRO be “appended” to
and served with his complaint, see Doc. No. 9, p. 2, Plaintiff made no such request with regard to
his first motion for TRO. See Doc. No. 1. The complaint does not incorporate any documents
by reference. And there is no matter susceptible to judicial notice with regard to Plaintiff’s
bringing of any Eighth Amendment claim.
Plaintiff’s Eighth and Fourteenth Amendment claims, such as they are, are therefore not
part of the pleadings. They should be treated as being raised for the first time in Plaintiff’s
response to the Rule 12(c) motion for judgment on the pleadings. It is inappropriate to use a
response to a motion to dismiss to raise a new claim for the first time. See Alvarado v. CITGO
Petroleum Corp., No. 2:25-cv-00029, 2025 WL 2109355, at *4 (S.D. Tex. July 3, 2025)
(Morales, J.). When a pro se plaintiff raises a new claim for the first time in response to a
motion to dismiss, however, the court may construe the response as a motion for leave to amend
the complaint. See Lewis v. Tauch, No. 3:25-cv-00201, 2026 WL 183715, at *1 (S.D. Tex. Jan.
23, 2026) (Edison, M.J.). Plaintiff, proceeding pro se in this case, did not properly raise an
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Eighth or Fourteenth Amendment claim in the pleadings, but the undersigned liberally construes
his response as a motion for leave to amend the complaint.
Federal Rule of Civil Procedure 15(a) directs courts to grant leave to amend freely when
justice so requires. Leave to amend need not be granted, however, if amendment would be futile
– that is, if the amended claim would fail to state a claim upon which relief could be granted.
See Ariyan, Inc. v. Sewage & Water Bd. of New Orleans, 29 F.4th 226, 229 (5th Cir. 2022).
Here, amendment of Plaintiff’s complaint to add a Fourteenth Amendment claim would be futile.
Plaintiff’s argument is that inmates like him are denied due process when the housing unit is
locked down pursuant to the Lockdown Policy. See Doc. No. 31, p. 1. But as discussed above,
convicted prisoners like Plaintiff have no right to be free from lockdowns, so they are not
entitled to due process protections like those discussed in Wolff v. McDonnell, 418 U.S. 539
(1974). See Sandin, 515 U.S. at 484. The district court therefore should not grant leave to
amend to add a Fourteenth Amendment due process claim.
Nor should the district court grant leave to add an Eighth Amendment claim. This
proposed claim would fail for the same reasons as the First Amendment claim: Plaintiff cannot
plausibly allege an injury in fact. The lockdowns themselves are not a cognizable injury, and
Plaintiff’s claim of increased risk of assault is too speculative to provide Article III standing to
seek prospective injunctive relief. Because an Eighth Amendment claim would also fail to
survive a motion to dismiss, the district court should deny leave to amend.
I. Recommendations.
The district court should take the following actions:
• GRANT the motion for judgment on the pleadings (Doc. No. 28);
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• DISMISS with prejudice Plaintiff’s individual-capacity claims against
Director Lumpkin and Director Collier;
• DISMISS without prejudice Plaintiff’s official-capacity First Amendment
claim against Director Lumpkin and Director Guerrero, for lack of subject
matter jurisdiction;
• DISMISS with prejudice Plaintiff’s state law claim under section 500.001 of
the Texas Government Code; and
• DENY Plaintiff’s construed motion to amend his complaint.
J. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Within 14 days after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on the United States Magistrate
Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1),
and General Order No. 2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and recommendation in
a magistrate judge’s report and recommendation within 14 days after being served with a copy
shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-
to proposed factual findings and legal conclusions accepted by the district court. See Douglass v.
United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on April 27, 2026.
MITCHEL NEUROCK
United States Magistrate Judge
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