Ward v. Texas Department of Criminal Justice et al
MEMORANDUM AND OPINION AND ORDER - The 1 Prisoner's Civil Rights filed by Marshall Todd Ward is DISMISSED with prejudice for failure to state a claim. The dismissal will count as a STRIKE for purposes of 28 U.S.C. §1915(g)...*** Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 1 of 6
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MARSHALL TODD WARD,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, et al. ,
September 07, 2021
Nathan Ochsner, Clerk
CIVIL ACTION NO. H-21-2649
MEMORANDUM OPINION AND ORDER
The plaintiff, Marshall Todd Ward (Inmate #380322, former TDCJ
#2205270, former BOP #24978-180), is a former state inmate who is
presently in custody at the Collin County Detention Facility in
under 42 U.S.C.
He has filed a Prisoner's Civil Rights Complaint
1983 ("Complaint") (Docket Entry No. 1) against
the Texas Department of Criminal Justice ( "TDCJ") and Governor Greg
Because the plaintiff proceeds in forma pauperis, the court is
required to scrutinize the Complaint and dismiss the case if it
determines that the action is "frivolous or malicious," "fails to
state a claim on which relief may be granted," or "seeks monetary
relief against a defendant who is immune from such relief."
U.S.C. § 1915(e)(2)(B).
After considering all of the pleadings,
the court concludes that this case must be dismissed for the
reasons explained below.
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 2 of 6
Ward is a former TDCJ inmate who served time at the Byrd Unit
in Huntsville and at the Jester III Unit,
which is located in
Ward contends that both facilities fail to provide
adequate "living space" or square footage per inmate. 2
that overcrowded conditions in these TDCJ facil
ies violate a
Department of Corrections.3
Invoking 42 U.S.C. § 1983, Ward sues TDCJ and Governor Abbott,
"all old prisons"
conditions in all TDCJ facilit
be closed and that housing
s be limited to only one inmate per
Ward's Complaint will be dismissed because he fails to
state a claim upon which relief may be granted.
Ward may not file suit in federal court against TDCJ, which is
a state agency protected by Eleventh Amendment immunity.
Complaint, Docket Entry No. 1, p. 4. Court records confirm
that Ward has filed more than thirty civil actions while
incarcerated, including a recent lawsuit involving the conditions
of confinement at the Jester III Unit that was dismissed on
June 30, 2020, after Ward's co-plaintiffs complained that he added
them as parties to the lawsuit without their permission.
v. Trump, Civil Action No. H-20 1940 (S.D. Tex.) (Docket Entry
Nos. 14, 17).
Complaint, Docket Entry No. 1, p. 4.
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 3 of 6
Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054
entitlement to immunity under the [E]leventh [A]mendment is clearly
established in this circuit.").
Unless expressly waived,
Eleventh Amendment bars an action in federal court by a citizen of
a state against his or her own state, including a state agency.
See Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2309
Texas has not waived its Eleventh Amendment immunity and
Congress did not abrogate that immunity when it enacted 42 U.S.C.
See NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394
2015) (citing Quern v. Jordan,
99 S. Ct. 1139,
Therefore, Ward fails to state a claim against TDCJ.
There is a narrow exception to Eleventh Amendment immunity
that applies to claims for prospective
unctive relief against a
state official who is alleged to have violated federal law.
McKinley v. Abbott, 643 F.3d 403, 405-06 (5th Cir. 2011) (citing
Ex parte Young,
28 S. Ct. 441
To fit within this
exception, a plaintiff must demonstrate that the official has some
connection with the enforcement of a policy or act in question.
See Okpalobi v. Foster,
(en bane) .
244 F.3d 405,
(5th Cir. 2001)
Ward does not identify any action taken by Governor
Abbott or policy in which he has any enforcement role.•
assuming that Governor Abbott had the requisite connection with the
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 4 of 6
enforcement of prison housing policies, Ward fails to show that he
led to relief because he does not demonstrate an ongoing
Ward alleges that the lack of adequate living space for
inmates at the Byrd Unit and the Jester III Unit is inconsistent
with precedent on prison overcrowding from a class action lawsuit
against the North Carol
Ward does not provide a citation for that case, he appears to
reference litigation in the United States District Court for the
Eastern District of North Carolina, which resulted in a consent
decree that was described by the Fourth Circuit in Small v. Hunt,
Texas prison system is
98 F.3d 789, 792-94 (4th Cir. 1996).
not bound by a consent decree involving conditions of confinement
in another state.
Supreme Court has upheld the practice of housing two
prisoners in one cell, known as "double
it did not violate the Eighth Amendment.
ling," concluding that
Rhodes v. Chapman,
s. Ct. 2392, 2400-02 (1981).. Living space requirements and the
practice of double celling in
Texas prison system were
litigated in a class action lawsuit that commenced in 1972, which
resulted in a detailed remedial decree that was entered before
Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.
Rhodes was decided.
Although the Fifth Circuit affirmed parts of the
Tex i 1980).
Complaint, Docket Entry No. 1, p. 4.
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 5 of 6
decree entered by the distric;:t: court, it vacated_provisions that
practice of double celling.
and . prohibited
See Ruiz v. Estelle, 679 F.2d 1115,
1148-49, 1164 (5th Cir. 198i), �odified on other grounds, Ruiz v.
Estelle, 688 F.2d 266 (5th Cir. 1982)
The remaining portion of
the remedial decree was terminated in a Final Judgment entered on
June 17, 2002.
See Ruiz v. Estelle, No. H-78-0987 (S.D. Tex.)
(Docket Entry No. 9015).
The Fifth Circuit has explained that "[l]ack of space alone
does not constitute cruel and unusual punishment, save perhaps in
the most aggravated circumstances."
858 (5th Cir. 1982).
Ruiz v. Estelle, 666 F.2d 854,
Ward does not assert any facts showing that
the conditions attending his confinement at the Byrd Unit or the
Jester III Unit amounted to cruel and unusual punishment or that a
constitutional violation occurred while he was incarcerated at
As a result, Ward's allegations of overcrowding
and lack of living space are insufficient to state a viable claim.
See, e.g., Johnson v. Texas Board of Criminal Justice, 281 F. App'x
319,. 320-21, 2008 WL 2337324, at *2 (5th Cir. June 5, 2008) (per
More importantly, the pleadings reflect that Ward is no longer
incarcerated in TDCJ.
Ward's release from TDCJ custody renders
moot any claim for injunctive or declaratory relief concerning the
conditions of his confinement. See Gillespie v. Crawford, 858 F.2d
Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 6 of 6
1101, 1103 (5th Cir. 1988) (per curiam);
Smith v. City of
Tupelo, Mississippi, 281 F. App'x 279, 282 (5th Cir. 2008) (per
curiam) ( "A claim for declaratory and injunctive relief based on
conditions of confinement is rendered moot upon the prisoner's
release or transfer from the facility.").
Because Ward has failed
to state a claim upon which relief may be granted, this action will
be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Prisoner's Civil Rights Complaint filed by
Marshall Todd Ward (Docket Entry No. 1) is
DISMISSED with prejudice for
lure to state a
The dismissal will count as a STRIKE for purposes
of 28 u.s.c. § 1915(g).
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
The Clerk will also send a
copy of this Memorandum Opinion and Order to the Manager of Three
Strikes List at Three_Strikes@txs.uscourts.gov.
SIGNED at Houston, Texas, on this 7th day of September, 2021.
SENIOR UNITED STATES DISTRICT JUDGE
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