Flowers v. Sutterfield ( 2022 )

Case: 20-10988 Document: 00516366371 Page: 1 Date Filed: 06/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 22, 2022
No. 20-10988
Lyle W. Cayce
Clerk
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,
versus
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.
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.
Stephen A. Higginson, Circuit Judge:*
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-10988 Document: 00516366371 Page: 2 Date Filed: 06/22/2022
No. 20-10988
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 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
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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 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
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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 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 Neitzke-Denton
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.
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Therefore, the judgment of the district court is AFFIRMED.
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