Case: 12-10231   Document: 00512271863   Page: 1   Date Filed: 06/12/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                FILED
                                                               June 12, 2013

                               No. 12-10231                    Lyle W. Cayce
                                                                    Clerk

MICHAEL BOHANNAN

                                         Plaintiff–Appellant
v.

JOHN DOE, I, CSOT, Case Manager Supervisor, TROOPER DOE, I,
Department of Public Safety; TROOPER DOE, II, Department of Public
Safety; ALLISON TAYLOR; LISA WORRY, CSOT, Program Specialist;
DEBORAH MORGAN, CSOT Program Specialist; LILES ARNOLD, CSOT
Chairperson; MARIA MOLETT, CSOT Member; AARON PIERCE, CSOT
Member; DAN POWERS, CSOT Member; RONNIE FANNING, CSOT
Member; ALIDA HERNANDEZ, CSOT Member; BRAD LIVINGSTON,
Director, Texas Department of Criminal Justice; STUART JENKINS,
Director, Texas Department of Criminal Justice - Police Department;
CHRISTINA PROPES, Director, Texas Department of Criminal Justice -
Police Department; RICARDO JIMENEZ, Director, Texas Department of
Criminal Justice - Police Department; MELINDA BOZARTH, Texas
Department of Criminal Justice, General Counsel; JANE DOE, I; KASSIE
ELLIS, Hearing Officer; VICKI HALLMAN, Texas Department of Criminal
Justice - Police Department Region Supervisor; JACQUELINE DICKERSON,
Texas Department of Criminal Justice - Police Department; KEN NEILL,
Texas Department of Criminal Justice - Police Department Supervisor;
SHERLYN JOHNSON, Texas Department Criminal Justice - Police
Department Parole Officer;

                                         Defendants–Appellees


                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 4:11-CV-299
     Case: 12-10231       Document: 00512271863         Page: 2     Date Filed: 06/12/2013



                                       No. 12-10231

Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Michael Bohannan filed a pro se complaint alleging
claims against individuals and state entities involved with his civil commitment
and incarceration. The district court transferred venue, denied Bohannan’s
request for appointment of counsel, and dismissed most of Bohannan’s claims.
Bohannan timely appealed, challenging the sua sponte transfer of venue, the
denial of his request for appointment of counsel, and the dismissal of his claims.
For the reasons that follow, we affirm in part and reverse in part.
                                              I
       Michael Bohannan has been convicted of a number of sex crimes dating
back to 1982. His most recent offense, viewing child pornography in a county
law library, occurred in 2006 and resulted in the revocation of his supervised
release. Upon his release, the State initiated proceedings under a Texas law
permitting the civil commitment of individuals determined to be “sexually
violent predators.” The law is intended to impose outpatient treatment and
supervision on individuals who have committed multiple sexually violent
offenses and who suffer from behavioral abnormalities that make them likely to
re-offend. In January 2009, a jury found that Bohannan met the statutory
requisites, and the trial court issued an order of civil commitment.1 Bohannan
was thereafter released to the Fort Worth Community Corrections Facility for
mandatory supervision.


       *
         Pursuant to 5TH CIR. R. 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 CIR.
R. 47.5.4.
       1
         One year later the Beaumont Court of Appeals granted Bohannan a new trial on the
basis of expert testimony excluded by the trial court; the Texas Supreme Court affirmed the
court of appeals in 2012. In re Commitment of Bohannan, 

, 307 (Tex. 2012).


                                              2
    Case: 12-10231    Document: 00512271863     Page: 3   Date Filed: 06/12/2013



                                 No. 12-10231

      The terms of Bohannan’s commitment order contain numerous provisions
governing Bohannan’s conduct while committed. According to Bohannan’s
complaint, these provisions include restrictions on outside contact, GPS
monitoring requirements, and mandatory compliance with a program intended
to oversee potential violations of the terms of commitment using polygraph
examinations and written statements. Under Texas law, a violation of the terms
of commitment constitutes a felony. On March 31, 2009, Bohannan was arrested
for alleged monitoring violations based on signal losses that occurred between
his GPS unit and the unit’s base station. On or about April 2, 2009, the Texas
Department of Criminal Justice issued a warrant requiring Bohannan to remain
incarcerated pending a preliminary or final revocation hearing. Bohannan
alleges that charges against him were dismissed in March 2011, approximately
two years after the initial allegations were made. According to Bohannan’s brief,
he was returned to the Forth Worth facility once the charges were dismissed.
      In March 2011, proceeding in forma pauperis (“IFP”), Bohannan filed suit
in the Western District of Texas alleging violations of state and federal law
against various officials. Bohannan’s claims arose out of the manner and
conditions of his commitment, the reasons for his imprisonment, his treatment
in prison, and his treatment since being returned to the halfway house.
Bohannan requested the appointment of counsel to assist with his claims, but
his request was denied. The case was transferred to the Northern District of
Texas, where the district court dismissed many of Bohannan’s claims on the
basis that they were frivolous or failed to state a claim upon which relief could
be granted. Bohannan then filed this appeal.
                                       II
      The district court did not resolve all of Bohannan’s claims in its partial
summary judgment order, and so the order was not automatically appealable
under 28 U.S.C. § 1291. The district court did, however, label the judgment as

                                       3
    Case: 12-10231     Document: 00512271863      Page: 4   Date Filed: 06/12/2013



                                  No. 12-10231

“final” and note that there is “no just reason for delay.” Under Rule 54(b), the
district court “may direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly determines that there is no
just reason for delay.” Fed. R. Civ. P. 54(b). Having done so, the district court’s
order of partial summary judgment is appealable and this court has jurisdiction.
                                       III
      Bohannan disputes the district court’s sua sponte transfer of venue, the
rejection of his request for the appointment of counsel, and the district court’s
dismissal of most of his claims. Bohannan also disputes the district court’s
treatment of his claims as prisoner claims under the Prison Litigation Reform
Act (“PLRA”), 28 U.S.C. § 1915A. All told, Bohannan’s brief presents nearly
twenty separate issues on appeal. To facilitate the orderly consideration of each
of Bohannan’s claims, this opinion proceeds as follows: first, the Court will
consider Bohannan’s transfer of venue claim; second, the Court will review the
denial of Bohannan’s appointment of counsel request; third, the Court will
determine Bohannan’s status under the PLRA; and finally, the Court will review
the dismissal of Bohannan’s claims.
                                        A
      Under 28 U.S.C. § 1391, venue is appropriate in the district where all
defendants reside or where a substantial part of the events giving rise to the
plaintiff’s claims occurred. 28 U.S.C. § 1391(b)(1)–(2). If there is no district in
which the action may otherwise be brought, then venue is appropriate in a
district where any defendant may be found. 

courts may
transfer civil actions to any other district when doing so is warranted by the
convenience of the parties, the convenience of the witnesses, and the interests
of justice. 

of venue are reviewed for abuse of discretion.
Broussard v. State Farm Fire & Cas. Co., 

, 631 (5th Cir. 2008).



                                        4
    Case: 12-10231     Document: 00512271863      Page: 5   Date Filed: 06/12/2013



                                   No. 12-10231

      Here, Bohannan has failed to show an abuse of discretion. The district
court chose to transfer Bohannan’s case from the Western District of Texas to
the Northern District of Texas because Bohannan was located in the Northern
District, his claim involved a number of Forth Worth defendants, and many of
his claims involved acts or omissions that took place in Forth Worth. Bohannan
challenges the transfer, claiming that many of the defendants he alleges claims
against are based in Austin. While a plaintiff’s choice of venue is often afforded
a degree of deference, it cannot be said that the district court abused its
discretion in this instance. Bohannan makes a valid point insofar as certain
defendants are located in Austin. However, the court was within its discretion
to determine that the convenience of the parties and witnesses favored the
Northern District more strongly. Bohannan is located in that district, as is
Wesley Griffin (“Griffin”), the defendant against whom Bohannan has focused
most of his claims; and most of the conduct giving rise to Bohannan’s claims
occurred in Fort Worth. Because the district court did not abuse its discretion,
we affirm the transfer of venue.
                                        B
      “A civil rights complainant has no right to the automatic appointment of
counsel unless the case presents exceptional circumstances.” Freeze v. Griffith,

, 175 (5th Cir. 1988) (per curiam). Federal courts have “discretion
to appoint counsel if doing so would advance the proper administration of
justice.” Ulmer v. Chancellor, 

, 213 (5th Cir. 1982); see 28 U.S.C.
§ 1915(d). The factors to consider when evaluating a request for appointment
of counsel include (1) the type and complexity of the case; (2) whether the
indigent plaintiff is capable of adequately presenting his case; (3) whether the
indigent plaintiff is capable of adequately investigating the case; and (4) whether
the evidence will consist in large part of conflicting testimony requiring skilled
presentation and cross examination. 

. This case presents

                                        5
     Case: 12-10231      Document: 00512271863        Page: 6     Date Filed: 06/12/2013



                                     No. 12-10231

relatively straightforward claims that will not involve conflicting testimony and
complicated cross-examination.          Moreover, Bohannan has proven himself
extremely adept at presenting legal claims in his complaint and briefs.
Therefore, we affirm the district court’s denial of Bohannan’s request for counsel.
                                            C
       In dismissing many of Bohannan’s claims the district court relied on its
responsibility to screen prisoners’ civil claims pursuant to 28 U.S.C. §§ 1915A(a)
and (b), part of the Prison Litigation Reform Act (“PLRA”). Under §§ 1915A(a)
and (b), the district court is charged with reviewing civil actions filed by
prisoners and dismissing any claim that is frivolous, that fails to state a claim
upon which relief can be granted, or that seeks monetary relief from an immune
defendant. 

occurs before defendants are expected to
respond and is intended to discourage the waste of judicial and private resources
on baseless lawsuits. Crawford–El v. Britton, 

, 596 (1998); Neitzke
v. Williams, 

, 327 (1989).
       Bohannan challenges the district court’s reliance on § 1915A on the basis
that he does not qualify as a prisoner. Bohannan argues that he does not so
qualify because he was civilly committed to a treatment center; he was not
incarcerated as a result of a criminal conviction. We review the district court’s
PLRA interpretation de novo. Jackson v. Johnson, 

, 265 (5th Cir.
2007) (per curiam). As explained below, the district court erred in treating
Bohannan’s claim as a prisoner action. However, we nevertheless affirm on
other grounds the district court’s decision to screen Bohannan’s complaint for
plausibility.2
       When Bohannan filed this suit, he was civilly committed as part of a
program for high-risk offenders.                Tex. Health & Safety Code Ann.

       2
         We separately review the district court’s dismissal of Bohannan’s specific claims,
infra Part III.D.

                                            6
    Case: 12-10231     Document: 00512271863      Page: 7    Date Filed: 06/12/2013



                                  No. 12-10231

§§ 841.001–.150 (West 2006). Qualifying as a prisoner under § 1915A, however,
requires “incarerat[ion] or deten[tion]” after being “accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915A(c). The Fifth Circuit has previously stated that
“[t]he PLRA does not apply to civilly committed detainees.” Ruston v. Dallas
Cnty., No. 07-10206 (5th Cir. Dec. 18, 2007) (per curiam) (unpublished).
Moreover, while the Fifth Circuit has not issued a published decision holding
that civilly committed sexual predators are not prisoners under § 1915A, other
circuits have. See Michau v. Charleston Cnty., 

, 727 (4th Cir. 2006);
Troville v. Venz, 

, 1260 (11th Cir. 2002); Page v. Torrey, 

, 1139–40 (9th Cir. 2000). Circuits have consistently so held because
programs like this one utilize civil proceedings to commit citizens and are not
intended to have punitive effects. See, e.g., 

(“Civil
detention is by definition non-punitive.”).
      Here, Bohannan was committed so that he could receive treatment
services. The statute itself specifically states that sexually violent predators are
committed in order for the state to provide them with “outpatient treatment and
supervision.”   Tex. Health & Safety Code Ann. § 841.081(a) (West 2006).
Bohannan was placed into the program as the result of a civil proceeding. Cf.

(finding that an individual at the same Fort Worth
halfway house was a prisoner under the PLRA because his detention was the
result of a criminal conviction).      Indeed, the Texas Supreme Court has
unequivocally held that civil commitment pursuant to the sexually violent
predator statute “is a civil matter.” In re Commitment of Fisher, 

,
653 (Tex. 2005). Bohannan thus does not fall within the PLRA’s definition of
“prisoner.” See 28 U.S.C. § 1915A(c). Accordingly, the district court erred when
it applied § 1915A to Bohannan’s complaint.

                                         7
     Case: 12-10231         Document: 00512271863           Page: 8     Date Filed: 06/12/2013



                                         No. 12-10231

       However, the inapplicability of § 1915A does not end our analysis given
this Court’s “practice of affirming the district court on alternative grounds when
those grounds are supported by the record.” Brewster v. Dretke, 

,
769 n.3 (5th Cir. 2009) (per curiam). Under 28 U.S.C. § 1915(e), which governs
IFP filings and complaints, district courts must similarly screen IFP complaints
for claims that are frivolous, that fail to state a claim, or that seek money from
an immune defendant. 28 U.S.C. § 1915(e)(2)(B). The district court, having
granted Bohannan’s request to file as an IFP plaintiff, was thus justified in
screening Bohannan’s complaint for frivolousness, failure to state a claim upon
which relief can be granted, and claims seeking monetary relief from immune
defendants. See 

court erred in treating Bohannan’s action
as a prisoner suit, we ultimately affirm the screening function employed, though
on different grounds.
                                                D
       The remainder of Bohannan’s brief focuses on challenging the district
court’s partial dismissal of his claims.3 While the district court evaluated
Bohannan’s complaint under § 1915A, we review the district court’s decision as
though it had instead analyzed Bohannan’s complaint for failure to state a claim




       3
          As an initial matter, however, Bohannan takes issue with the district court’s
determination that some his claims should be dismissed as both frivolous and insufficiently
pleaded, claiming that the court’s outcome defies logic. Such an outcome is entirely
permissible, however. A claim is frivolous when it lacks any arguable basis in law or fact.
Samford v. Dretke, 

, 678 (5th Cir. 2009) (per curiam). A claim lacks any arguable
basis in law or fact when it is based on an indisputably meritless legal theory. 

to state a claim upon which relief can be granted when, assuming the plaintiff’s
allegations are true, it nevertheless fails to state a plausible claim to relief. Ashcroft v. Iqbal,

, 678 (2009). Given these articulations of the two standards, it is not logically
inconsistent to conclude that a claim is both frivolous and fails to state a claim upon which
relief can be granted. Indeed, a claim that is indisputably meritless necessarily fails to plead
a plausible claim to relief.

                                                 8
     Case: 12-10231        Document: 00512271863          Page: 9     Date Filed: 06/12/2013



                                        No. 12-10231
under § 1915(e)(2)(B)(ii). Our review is de novo.4 Green v. Atkinson, 

, 280–81 (5th Cir. 2010) (per curiam); Black v. Warren, 

, 734 (5th
Cir. 1998) (per curiam). We review Bohannan’s claims for plausibility, noting
that plausibility is not akin to probability. 

. While we
must accept allegations in the complaint as true, that assumption does not carry
over to legal conclusions. 

a cause of action’s elements
likewise do not suffice. 

bear in mind, however, that Bohannan
is proceeding pro se. Documents filed pro se are liberally construed; and a pro
se complaint, however inartfully pleaded, is held to a less stringent standard
than formal pleadings drafted by lawyers. Erickson v. Pardus, 

, 94
(2007). As explained below, we partially affirm and partially reverse the district
court’s dismissal of Bohannan’s claims.
                                               1
       Bohannan suggests that the district court dismissed all of his claims
against unnamed defendants on the basis that the court does not entertain
claims against unknown or unnamed defendants. While Bohannan’s argument
partially reflects the court’s disposition, the district court’s treatment of
Bohannan’s unnamed defendants warrants a closer examination because the
district court did not summarily dismiss every claim against an unnamed
defendant on that basis. As explained below, the district court was correct in
dismissing some of Bohannan’s claims against unnamed defendants.                            The




       4
         Had the district court dismissed Bohannan’s claims as frivolous, we would review for
abuse of discretion. Green v. Atkinson, 

, 279–80 (5th Cir. 2010). However, while
the district court refers to frivolous complaints, it only mentions frivolousness as a basis for
dismissal twice, and in both instances frivolousness is used concurrently with failure to state
a claim. See Bohannan v. Griffin, 4:11–CV–299–A, 

, at *7–8 (N.D. Tex. Jan.
24, 2012). Moreover, the district court’s dismissals are premised on Bohannan’s failure to
allege sufficient facts to allege plausible claims. 

in a dismissal for failure
to state a claim, see 

, we treat the district court’s opinion accordingly.

                                               9
   Case: 12-10231     Document: 00512271863      Page: 10    Date Filed: 06/12/2013



                                  No. 12-10231
district court erred in dismissing other claims, however. Thus, the Court
partially affirms and partially reverses these dismissals.
      Bohannan’s claims against unnamed defendants can be divided up as
follows: (1) claims of retaliation and malicious prosecution against John Doe I;
(2) deliberate indifference to medical needs against Nurse Doe I and failure to
maintain proper medical treatment policies against Doctors Doe I and II; and (3)
deliberate indifference to medical needs against Troopers Doe I and II.
      The district court dismissed the claims against John Doe I because they
depended on a theory of respondeat superior. Bohannan alleged that John Doe
I, Griffin’s supervisor, committed acts of retaliation and malicious prosecution
when he authorized Griffin to seek an arrest warrant based on Bohannan’s
alleged violation of the facility’s GPS monitoring policies knowing that
Bohannan had in fact not violated the monitoring policies. While it is true that
§ 1983 only provides a narrow window for vicarious liability claims, see Porter
v. Epps, 

, 446 (5th Cir. 2011), reversal is appropriate here because
a plain reading of Bohannan’s complaint reveals that he has alleged more than
respondeat superior liability against John Doe I.
      A retaliation claim under § 1983 requires (1) a specific constitutional right;
(2) the defendant’s intent to retaliate for the exercise of that right; (3) a
retaliatory adverse act; and (4) causation. Hart v. Hairston, 

, 764
(5th Cir. 2003) (per curiam). Bohannan clearly alleges that John Doe I knew
that Bohannan had not in fact violated the facility’s monitoring policies, knew
that Bohannan had filed formal grievances regarding the facility’s monitoring
equipment, and nevertheless authorized the pursuit of an arrest warrant as an
act of retaliation for Bohannan’s use of the formal grievance process. Such a
claim sounds in direct liability. See Richard v. Martin, 390 F. App’x 323, 325
(5th Cir. 2010) (per curiam) (unpublished) (vacating dismissal of a retaliation
claim involving retaliation for filing a grievance); Jones v. Greninger, 

   Case: 12-10231     Document: 00512271863      Page: 11   Date Filed: 06/12/2013



                                  No. 12-10231
322, 324–25 (5th Cir. 1999) (discussing retaliation claims premised on filing
grievances). As such, the district court erred when it dismissed this claim.
      The district court dismissed Bohannan’s claims regarding his treatment
by medical staff, specifically Nurse Doe I and Doctors Does I and II, stating
without citation that “[t]he court . . . does not consider claims against unknown
defendants.” Bohannan v. Griffin, 4:11–CV–299–A, 

, at *7
(N.D. Tex. Jan. 24, 2012). This statement wholly misstates the policy of federal
courts in favor of permitting the preliminary adjudication of claims against
unnamed parties. See Colle v. Brazos Cnty., 

, 243 & n.20 (5th Cir.
1993) (recognizing that, though disfavored, plaintiffs should be given the
opportunity, through discovery, to identify unnamed defendants and affirming
the dismissal of unnamed parties only after plaintiff’s three-year failure to
prosecute). While certainly not ideal, IFP plaintiffs are permitted to plead
claims against unnamed defendants.
      We nevertheless affirm dismissal of Bohannan’s claims against these
unnamed defendants because Bohannan’s complaint does not show that prison
officials “refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” Gobert v. Caldwell, 

, 346 (5th Cir. 2006). While Bohannan alleges that the unnamed defendants
did not immediately provide him with medication prescribed by other physicians
prior to his incarceration, he has not shown that they deprived him of medical
attention with wanton disregard for his needs. 

to have
been part of the facility’s policy of making independent medical determinations.
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do
not constitute deliberate indifference, nor does a prisoner’s disagreement with
his medical treatment, absent exceptional circumstances.”            

that an incorrect diagnosis by prison medical personnel does not

                                       11
    Case: 12-10231    Document: 00512271863       Page: 12   Date Filed: 06/12/2013



                                  No. 12-10231
suffice to state a claim for deliberate indifference.” Domino v. Tex. Dep’t of
Criminal Justice, 

, 756 (5th Cir. 2001). The decision whether to
provide additional treatment, meanwhile, is an example of an issue of subjective
medical judgment. 

has not alleged conduct that
rises to deliberate indifference, we affirm the dismissal of Bohannan’s claims
against these defendants.
      Finally, the district court dismissed Bohannan’s claimed deliberate
indifference to medical needs against unnamed Troopers Doe I and II on the
basis that Bohannan’s complaint alleged no facts that stated a constitutional
claim. We affirm this dismissal because Bohannan only cursorily mentions
Troopers Doe I and II in his pleadings, and because Bohannan has not alleged
sufficient facts to demonstrate a deliberate indifference to Bohannan’s medical
needs by these defendants. Bohannan’s complaint states that, prior to his
arrest, he packed legal papers and prescription medications into a prison-
approved bag to take with him. When Troopers Doe I and II arrived with Griffin
to arrest Bohannan, the troopers asked Griffin whether to allow Bohannan to
take the bag with him. Griffin told the troopers to leave the bag behind. In
order to make a claim of deliberate indifference to serious medical needs, a
plaintiff must show facts that “clearly evince” the “unnecessary and wanton
infliction of pain” and official dereliction in that regard. 

n.13, 346. Bohannan’s allegations against Troopers Doe I and II do not suffice
to state such a claim based on their tangential involvement in the seizure of his
medicines. Thus, the Court affirms the district court’s dismissal of Bohannan’s
claims against Troopers Doe I and II.
                                         2
      Bohannan also asserted a series of related claims against a number of
defendants based on the defendants’ purported failure to provide a prompt
hearing concerning the monitoring violation that caused Bohannan’s

                                        12
    Case: 12-10231    Document: 00512271863      Page: 13   Date Filed: 06/12/2013



                                  No. 12-10231
incarceration. The district court dismissed these claims on various immunity
grounds. Bohannan challenges the dismissal on the basis that his complaint
seeks injunctive relief, a permissible remedy against state actors in the § 1983
context. We need not address either issue, however, because these claims are
moot. Bohannan seeks injunctive relief for prompt hearings he was denied upon
his incarceration. However, Bohannan is no longer incarcerated. Therefore,
there is no hearing for the Court to order. Bohannan’s claims are thus moot and
dismissal is appropriate. Cf. Herman v. Holiday, 

, 665 (5th Cir.
2001) (dismissing as moot inmate’s § 1983 claim for declaratory and injunctive
relief when inmate had since been transferred from the allegedly offending
facility).
                                        3
       The district court dismissed Bohannan’s Eighth Amendment claim for
deliberate indifference to his need for dental care because it was barred by the
statute of limitations. Bohannan challenges that determination, arguing that
his claim was tolled while he pursued an administrative grievance to which he
never received an official response. Bohannan was denied treatment after
complaining of dental issues upon his arrival at the Forth Worth Community
Correctional Facility on January 26, 2009. Bohannan lost a tooth on February
15, 2009, purportedly as a result of Griffin’s treatment denial. Bohannan was
allowed to attend a dental appointment on February 23, 2009, but Griffin had
not authorized the payment of the clinic’s $37 fee, so Bohannan did not receive
treatment. Bohannan attended another dental appointment on March 4, 2009
and was told that he needed approximately $11,000 worth of dental work.
Griffin denied this request as well. Bohannan filed a grievance on March 9, 2009
and had not received a response when he filed this suit on March 31, 2011.
       There is no federal statute of limitations for claims brought under § 1983.
Rodriguez v. Holmes, 

, 803 (5th Cir. 1992). Instead, federal courts

                                        13
    Case: 12-10231       Document: 00512271863          Page: 14     Date Filed: 06/12/2013



                                       No. 12-10231
borrow the forum state’s statute of limitations for personal injury actions, as well
as the state’s tolling provisions. 

injury claims are subject
to a two-year limitations period. Tex. Civ. Prac. & Rem. Code Ann. § 16.003
(West 2005).      While some states toll the statute of limitations while an
individual is incarcerated, Texas has not tolled prisoners’ civil suits since the
relevant statute was amended in 1987.5 

. While state
law provides the relevant limitations period, federal law determines when a
claim accrues. Wallace v. Kato, 

, 388 (2007). Accrual occurs when
the plaintiff has a complete and present cause of action, i.e., when the plaintiff
can file suit and obtain relief. 

law, a claim accrues the
moment the plaintiff becomes aware that he has suffered an injury or has
sufficient information to know that he has been injured. Piotrowski v. City of
Houst., 

, 576 (5th Cir. 2001).                The district court dismissed
Bohannan’s claim as barred because the claim accrued no later than March 9,
2009, the date Bohannan filed a grievance regarding his dental care. Bohannan
did not file his complaint until March 31, 2011. On this basis, it would appear
Bohannan’s complaint is time-barred.
       Bohannan, however, argues that his claim is timely because the statute
of limitations was tolled while he exhausted administrative remedies available.
See 42 U.S.C. § 1997e(a). Section 1997e(a) requires that prisoners exhaust
administrative remedies before filing § 1983 claims regarding the conditions of
their confinement. 

be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”).                     Bohannan’s

       5
         While Bohannan is not a prisoner while residing at the Fort Worth Community
Corrections Facility, he was imprisoned during the pendency of his alleged GPS monitoring
violation. Because Texas does not toll prisoners’ claim, Bohannan’s limitations period was not
tolled while he was incarcerated for the alleged monitoring violation.

                                             14
    Case: 12-10231        Document: 00512271863        Page: 15    Date Filed: 06/12/2013



                                      No. 12-10231
argument is unpersuasive, however, because Bohannan does not qualify as a
prisoner, a point discussed earlier. 

Part III.C. Under the exhaustion
of remedies provision, a prisoner is “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). As this Court
determined above—and Bohannan previously argued—Bohannan was civilly
committed; his detention is not the result of a violation of criminal law or the
terms of parole, probation, or any other program. Bohannan is thus not a
prisoner and the administrative exhaustion provision does not apply. The
statute of limitations for Bohannan’s claim expired on March 9, 2011, at the
latest. Therefore, this claim is time barred and dismissal was appropriate.
      Bohannan also argues that his dental care claim alleges a continuing tort
for which the state of limitations has not expired. However, under federal law,
a continuing tort claim accrues when the plaintiff can file suit and obtain relief.

. Bohannan’s complaint shows that he could have filed
suit by March 9, 2011, at the latest. Since this suit was not filed until more than
two years had elapsed, Bohannan’s claim is barred. Therefore, we affirm the
district court’s dismissal.
                                             4
      Bohannan next challenges the dismissal of his First Amendment claims
against the Council on Sex Offender Treatment (“CSOT”).6 Bohannan claims
that CSOT policies concerning visitations and outside contact violate his First
Amendment rights of association because officials enforce a general prohibition
on outside contact, unjustifiably delay consideration of requests for exceptions
to the rule, and have no means of protecting against retaliatory denial of


      6
          The district court allowed Bohannan’s First Amendment against Griffin to proceed.

                                             15
    Case: 12-10231     Document: 00512271863       Page: 16    Date Filed: 06/12/2013



                                   No. 12-10231
exceptions to the no-contact rule. As explained below, we reverse the district
court’s dismissal of Bohannan’s First Amendment claims.
      In the context of prisoner’s First Amendment rights, the Supreme Court
has established that policies infringing on First Amendment rights are valid if
“reasonably related to legitimate penological interests.” O’Lone v. Estate of
Shabazz, 

, 349 (1987). While courts of appeals have been reluctant
to articulate a specific standard applicable to civilly committed individuals, it
nevertheless seems that restrictions are permissible so long as they advance the
state’s interest in security, order, and rehabilitation. Ahlers v. Rabinowitz, 

, 64 (2d Cir. 2012). “While clearly prisoners and those involuntarily
committed, by virtue of their incarceration and custody status, do not forfeit
their First Amendment right to use of the mails, that right may be limited by
institutional regulations that are reasonably related to legitimate penological
interests.” Rivera v. Rogers, 224 F. App’x 148, 151 (3d Cir. 2007) (per curiam)
(unpublished). Similarly, inmates and detainees do not forfeit all rights to
association upon detention. Overton v. Bazzetta, 

, 131 (2003).
Restrictions on the right to association are evaluated under the same standard
as restrictions on mail. 

that a rational relation to penological
interests suffices to sustain the regulation in question).
      In Rivera, the Third Circuit upheld a detention facility’s policy of opening
and inspecting all non-legal mail addressed to civilly-committed sexually violent
predators because the policy advanced the state’s interest in rehabilitation while
still affording the plaintiff the ability to correspond with outside contacts. 

noted that the plaintiff was “free to send and receive mail,
including letters form his girlfriend, so long as the content of the mail . . . is not
sexually explicit.” 

Bohannan has alleged that the CSOT
has blanket policies that prohibit all outside contact subject to arbitrary
exceptions that must be requested and approved on a case-by-case basis.

                                         16
   Case: 12-10231     Document: 00512271863     Page: 17   Date Filed: 06/12/2013



                                 No. 12-10231
Bohannan further claims that decisions to permit or deny outside contact are
unduly delayed and used as tools of retaliation. In the context of an individual
civilly committed for the purpose of supervision and outpatient treatment, it is
hard to imagine how such a broad prohibition or an alleged policy of retaliatory
denials is reasonably related to the institution’s goal of treatment and
rehabilitation. Bohannan has thus alleged a plausible First Amendment claim
against the CSOT. Therefore, we reverse the district court’s dismissal.
                                       5
      Bohannan alleged two Fifth Amendment claims that the district court
summarily dismissed. First, Bohannan challenges allegedly mandatory written
statements Bohannan was required to make regarding potential violations of his
commitment order.      Second, Bohannan challenges mandatory polygraph
examinations that were also used to monitor his compliance with the
commitment order. Bohannan claims that both the written statements and the
polygraph examinations violate his Fifth Amendment privilege against self-
incrimination because he was not allowed to decline to answer incriminating
questions and because his statements and answers were used in his prosecution
for the monitoring violation. The district court summarily dismissed both Fifth
Amendment claims, concluding that Bohannan’s allegations were too general
and that Texas courts had rejected Fifth Amendment claims involving polygraph
examinations.    Bohannan, 

, at *3.          As explained below,
Bohannan has alleged sufficient facts to raise plausible claims to relief.
Therefore, we reverse the district court’s dismissal.
      “The Fifth Amendment, in relevant part, provides that no person shall be
compelled in any criminal case to be a witness against himself.” Minnesota v.
Murphy, 

, 426 (1984) (internal quotation marks omitted). This
prohibition “privileges [Bohannan] not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal, where the answers

                                       17
    Case: 12-10231     Document: 00512271863       Page: 18    Date Filed: 06/12/2013



                                   No. 12-10231
might incriminate him in future criminal proceedings.” 

Amendment privilege is not self-executing: individuals generally must claim the
privilege against self-incrimination in order to subsequently seek redress. 

an individual asserts the privilege and is forced to answer regardless,
the answer is deemed compelled. 

privilege need not be
asserted where some identifiable factor essentially denies an individual the
choice of refusing to answer. 

these situations, the answers are
also deemed compelled. 

arises when assertion of the
Fifth Amendment privilege is itself penalized. 

in order to
assert a plausible Fifth Amendment claim, Bohannan must allege (1) that his
statements were compelled either because he raised his Fifth Amendment
privilege and was denied it, or because could not have raised his privilege
without facing a penalty; and (2) that his statements were used in a subsequent
prosecution.
      Bohannan has pleaded an actionable Fifth Amendment claim regarding
allegedly mandatory written statements because he claims that his written
statements were used in a subsequent criminal proceeding7 and that he was
“ordered . . . under threat of jailing, to write statements addressing allegations
of rule/condition violations.” As alleged, Bohannan was faced with a dilemma
that gives rise to a Fifth Amendment claim. If Bohannan wrote statements
admitting to violations of his commitment order, he would be subject to felony
prosecution, Tex. Health & Safety Code Ann. §§ 841.085(a)–(b) (treating as a
third-degree felony any violation of the commitment requirements imposed by
§ 841.082); if he refused to make the written statement required, he would be
subject to felony prosecution under the same statute, since the written
statements were allegedly required as a condition of his commitment, see Tex.

      7
       Bohannan alleges that written statements he was forced to make were used in his
subsequent prosecution for allegedly violating rules regarding GPS monitoring.

                                         18
    Case: 12-10231       Document: 00512271863         Page: 19     Date Filed: 06/12/2013



                                      No. 12-10231
Health & Safety Code Ann. § 841.082(a)(4) (requiring the committed person’s
“compliance with all written requirements imposed by the case manager”).
Therefore, Bohannan has pleaded an actionable Fifth Amendment claim.
       The same is true regarding Bohannan’s polygraph examinations.
Bohannan alleges that “[t]he CSOT[] and Griffin[] require those committed
under Chapter 841 to answer questions on the mandated polygraph which
address whether or not those committed have violated any rule/condition of their
commitment.” Furthermore, Bohannan claims that “[a] refusal to take the
polygraph, or a failure of it, is a rule/condition violation prosecutable as a felony
offense.” As alleged, the polygraph examinations that Bohannan was subjected
to present the same dilemma: either refuse to answer questions regarding
violations of the commitment order and be prosecuted for the refusal, or
acknowledge violating the commitment order and be charged accordingly.8
Therefore, we reverse the district court’s dismissal of Bohannan’s Fifth
Amendment claims.
                                             6
       Bohannan also disputes the district court’s dismissal of his Eighth
Amendment claim for deliberate indifference to mental health needs. Bohannan
alleges that, during his incarceration for the alleged GPS monitoring violation,
he was not given mental health treatment as mandated in his civil commitment
order. The district court dismissed this claim, and we affirm.
       In order to state a cognizable claim, Bohannan “must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious



       8
         The district court dismissed Bohannan’s polygraph claim in part because Texas courts
have held that an individual’s Fifth Amendment rights are not self-executing and must be
asserted in order to maintain a valid claim. Bohannan, 

, at *3. The district
court’s dismissal does not address the aspect of Bohannan’s claim considered here, however:
when a penalty attaches to the refusal to answer incriminating questions, the privilege need
not be asserted to make a valid claim. 

                                             19
    Case: 12-10231    Document: 00512271863       Page: 20   Date Filed: 06/12/2013



                                  No. 12-10231
medical needs. It is only such indifference that can offend . . . the Eighth
Amendment.”      Estelle v. Gamble, 

, 106 (1976).            Deliberate
indifference requires the unnecessary and wanton infliction of pain. Bienvenu
v. Beauregard Parish Police Jury, 

, 1459 (5th Cir. 1983) (quoting

). It is “an extremely high standard to meet.” Gobert v.
Caldwell, 

, 346 (5th Cir. 2006). Bohannan has merely alleged a
failure to provide court-ordered mental health treatment; his complaint does not
state what treatment was denied or what injury he has suffered. He has neither
alluded to nor claimed the unnecessary or wanton infliction of pain or injury
required to state a cognizable claim for deliberate indifference. Even liberally
construed, Bohannan has failed to state a claim to relief. Therefore, we affirm
the district court’s dismissal.
                                         7
      Bohannan alleges an Eighth Amendment deliberate indifference to serious
medical needs occurred when, during his arrest for the alleged monitoring
violation, Griffin instructed Troopers Doe I and II to leave Bohannan’s
medication behind. Bohannan claims he suffered serious injury because he was
denied access to his various prescription medicines. The district court allowed
Bohannan’s claim against Griffin to proceed and dismissed Bohannan’s claim
against Troopers Doe I and II for failing to allege facts that state a § 1983 claim.
We affirm the district court’s dismissal because Bohannan has not alleged any
facts that would suggest a § 1983 claim lies against the Troopers Doe I and II.
As Bohannan’s complaint clearly states, the decision to leave the medication
behind was made by Griffin. Bohannan has, in turn, alleged a plausible claim
against Griffin. Bohannan has not alleged facts that state a § 1983 against
Troopers Doe I and II, however; and we affirm the district court’s dismissal.
                                         8



                                        20
    Case: 12-10231    Document: 00512271863      Page: 21    Date Filed: 06/12/2013



                                  No. 12-10231
      The next dismissal challenged by Bohannan involves Bohannan’s claim
that he was denied access to court. Bohannan alleges that his legal files were
seized when he was arrested in March 2009, that officials delayed the return of
his files, and that the files were incomplete and disorganized when they were
finally returned. Bohannan claims that this caused him injury because it
delayed the filing of both his federal habeas petition and this suit, and because
it prevented him from adequately pleading claims. The district court read
Bohannan’s claim as only involving the federal habeas petition he filed in 2009
and dismissed that claim as time-barred. As explained below, Bohannan’s
complaint alleges denial of access to the courts for both his habeas petition and
this case. Moreover, as Bohannan correctly argues, the district court premised
its dismissal of Bohannon’s denial-of-access habeas claim on an earlier denial.
See Bohannan v. Thaler, No. 4:09–CV–662–A, 

(N.D. Tex. Apr.
23, 2010). However, that prior decision was vacated some three weeks before the
district court issued its dismissal here. See Bohannan v. Thaler, 

(2012). For the reasons that follow, we dismiss as moot Bohannan’s denial of
access claim as it pertains to his habeas petition and reverse dismissal of
Bohannan’s denial of access claim as it pertains to the present case.
      Inmates’ constitutional access to court is not limitless; inmates are only
entitled to the tools and access necessary to attack their sentences, to challenge
the conditions of their confinement, and to allege civil rights actions under
§ 1983. Lewis v. Casey, 

, 354–55 (1996). In order to show a
violation, plaintiffs must establish that meaningful access to the courts was
hindered. 

must show actual injury. Id.; Chriceol v. Phillips,

, 317 (5th Cir. 1999) (per curiam). Such an injury generally takes
the form of the loss of an actionable claim or the prevention of presenting a claim
because of the alleged denial. See 

(stating that injury
occurs when an inmate “shows that an actionable claim . . . which he desired to

                                        21
    Case: 12-10231       Document: 00512271863          Page: 22     Date Filed: 06/12/2013



                                       No. 12-10231
bring has been lost or rejected, or that the presentation of such a claim is
currently being prevented”).
       Here, Bohannan raises two denial of access claims, both of which arise out
of the seizure of his legal papers. Bohannan alleges that the seizure of his
papers impaired his ability to file his 2009 habeas petition, as well as the instant
civil rights suit. We dismiss as moot Bohannan’s claim regarding his habeas
petition because his habeas claims were eventually heard on the merits.9 The
delay Bohannan alleges thus did not ultimately impact his access to the courts
in that instance.
       We do not dismiss Bohannan’s second denial claim, however, because he
has pleaded facts sufficient to allege a plausible claim. Bohannan states in his
complaint that the seizure of his papers interfered with his ability to fully
present the claim in this case. He elaborates on this point in his brief, stating
that the seizure of his papers left him “unable to provide the court with more
detailed factual pleadings and with the actual names of some of the unnamed
defendants.” Bohannan has thus alleged injury by demonstrating that the
district court dismissed, and we have affirmed the dismissal of, some of his
claims. Therefore, we reverse the district court.
                                              9
       Count seven of Bohannan’s complaint alleges that various defendants
retaliated against him for exercising his First Amendment right to file



       9
         The district court initially dismissed Bohannan’s habeas claim as time-barred. See
Bohannan v. Thaler, 4:09–CV–662–A, 

(N.D. Tex. Apr. 23, 2010). Bohannan
thereafter filed a petition for a writ of certiorari, which the Supreme Court granted, vacating
the judgment and remanding in light of a case involving tolling of the statute of limitations
for habeas cases. See Bohannan v. Thaler, 

(2012). On remand, the district
court decided Bohannan’s case on the merits, see Bohannan v. Thaler, 4:09-CV-662-A, 

(N.D. Tex. July 20, 2012), thus abrogating Bohannan’s claim of prejudicial delay.
Bohannan’s appeal from the district court’s 2012 order is pending. Bohannan v. Thaler, 12-
10851 (5th Cir. filed Aug. 17, 2012).

                                              22
    Case: 12-10231         Document: 00512271863           Page: 23     Date Filed: 06/12/2013



                                         No. 12-10231
grievances regarding his commitment.10 These claims are alleged against a
number of parties, including Griffin, John Doe I, the CSOT, and “parole
officials.” The district court dismissed all of Bohannan’s claims except those
against Griffin. We reverse the dismissal of Bohannan’s claim against John Doe
I and affirm the dismissal of Bohannan’s claims against the CSOT and parole
officials.
       To state a valid retaliation claim, Bohannan must claim (1) a specific
constitutional right; (2) the defendant’s intent to retaliate based on the exercise
of that right; (3) a retaliatory adverse act; and (4) causation. Jones v. Greninger,

, 324–25 (5th Cir. 1999) (per curiam). Bohannan claims that the
defendants retaliated against him for filing grievances. Filing a grievance is a
constitutionally protected activity. See Richard v. Martin, 390 F. App’x 323, 325
(5th Cir. 2010); Jones v. Greninger, 

, 325 (5th Cir. 1999). As the
district court recognized, Bohannan’s complaint contains detailed factual
allegations against Griffin that unquestionably support a claim for relief.
Bohannan has also, however, alleged sufficient facts against John Doe I to
maintain a retaliation claim. Bohannan claims that John Doe I knew about the
GPS monitoring violation alleged and authorized Griffin to pursue a warrant.
Bohannan also alleges that John Doe I did so knowing that Bohannan had in
fact not violated the facility’s monitoring policies and did so with intent to
retaliate. Therefore, he has stated an actionable claim and we reverse dismissal
of Bohannan’s retaliation claim against John Doe I.




       10
            Bohannan also alleges a malicious prosecution claim under the same heading.
Insofar as Bohannan alleges a claim for malicious prosecution, dismissal is appropriate
because a freestanding malicious prosecution claim is not available under § 1983. Cuadra v.
Houst. Indep. Sch. Dist., 

, 812 (5th Cir. 2010). “Rather, the claimant must allege
that officials violated specific constitutional rights in connection with a malicious prosecution.”

omitted).

                                               23
    Case: 12-10231     Document: 00512271863        Page: 24   Date Filed: 06/12/2013



                                   No. 12-10231
      The remainder of Bohannan’s retaliation claims fail because Bohannan
has not alleged sufficient facts or an intent to retaliate. Bohannan essentially
claims that the CSOT failed to have policies that would prevent retaliation.
That allegation does not constitute a claim for retaliation per se. Bohannan’s
claim against parole officials fails because parole officials are entitled to absolute
immunity in the exercise of their decision-making powers. Littles v. Bd. of
Pardons & Paroles Div., 

, 123 (5th Cir. 1995) (per curiam). Since
Bohannan has failed to allege sufficient factual content to survive dismissal on
either claim, we affirm the district court’s dismissal of Bohannan’s retaliation
claims against the CSOT and parole officials.
                                         10
      Counts nine and ten of Bohannan’s complaint allege a failure to train and
a conspiracy to violate rights against a variety of defendants. The district court
dismissed these claims because Bohannan’s complaint contained very little
information on point. Bohannan contests this dismissal. For the reasons that
follow, we affirm the district court’s dismissal.
      Alleging a failure to train claim under § 1983 requires showing that: (1)
a supervisor failed to supervise or train the subordinate official; (2) a causal link
exists between the failure and the violation of the plaintiff’s rights; and (3) the
failure to train or supervise amounts to deliberate indifference. Estate of Davis
ex rel. McCully v. City of N. Richland Hills, 

, 381 (5th Cir. 2005).
The third prong, deliberate indifference, “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Connick v. Thompson, 

, 1360 (2011).
“A pattern of similar constitutional violations” is generally necessary to
demonstrate deliberate indifference. 

also
requires showing actual or constructive notice that a particular shortcoming in
training causes employees to violate citizens’ constitutional rights. 

12-10231     Document: 00512271863      Page: 25   Date Filed: 06/12/2013



                                  No. 12-10231
less would result in de facto respondeat superior liability under § 1983. Id.; see
also Walker v. Upshaw, No. 11–20628, 

, at *4 (5th Cir. Mar. 4,
2013) (per curiam) (unpublished) (“Supervisory officials may not be held liable
under § 1983 for the actions of their subordinates under any theory of vicarious
liability.”).
       Bohannan’s claim fails because Bohannan has not alleged a pattern or
policy of arresting civilly committed individuals on the basis of false monitoring
violations, the injury Bohannan alleges he personally suffered.            Rather,
Bohannan relies exclusively on his specific injury, i.e., single-incident liability,
an avenue for relief the Supreme Court has described as “rare.” Connick, 131 S.
Ct. at 1361. The Supreme Court has only offered a single example of the sort of
rare circumstances under which single-incident liability for a failure to train or
supervise would be viable. Single-incident liability would be available against
“a city that arms its police force with firearms and deploys the armed officers
into the public to capture fleeing felons without training the officers in the
constitutional limitation on the use of deadly force.” 

Canton
v. Harris, 

, 390 n.10 (1989)). Single-incident liability is thus
available in those exceptional instances where minimal training has been offered
and the duties assigned carry an obvious need for additional or different
training. 

; Walker, 

, at *5. As the facts
alleged by Bohannan do not meet this stringent standard, his single-incident
failure to train claim necessarily fails.
       Bohannan’s § 1983 conspiracy claim also fails because Bohannan has not
alleged an agreement among the defendants to violate his rights. “A plaintiff
must ‘allege specific facts to show an agreement.’” Tebo v. Tebo, 

,
496 (5th Cir. 2008) (quoting Priester v. Lowndes Cnty., 

, 420 (5th
Cir. 2004)).    A conclusory allegation that defendants conspired to violate
Bohannan’s rights does not suffice, even under the more generous standards

                                        25
    Case: 12-10231    Document: 00512271863      Page: 26    Date Filed: 06/12/2013



                                  No. 12-10231
that control pro se pleadings. For these reasons, we affirm the district court’s
dismissal of Bohannan’s failure to train and conspiracy claims.
                                        11
      Bohannan also contests the district court’s dismissal of his claims against
various parole officials. The district court dismissed Bohannan’s claims on
immunity grounds. Bohannan’s only argument here is that the district court
committed error by relying on dicta. While difficult to define, dicta involves the
consideration of “abstract and hypothetical situations not before [the court].”
Connecticut v. Doehr, 

, 30 (1991) (Rehnquist, C.J., concurring); see also
Black’s Law Dictionary 1177 (9th ed. 2009) (defining “obiter dictum” as “[a]
judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential”). The
district court dismissed Bohannan’s claims against the parole defendants on the
basis of Littles v. Bd. of Pardons & Paroles Div., 

(5th Cir. 1995) (per
curiam). In Littles, the court unequivocally stated that “[t]he Texas Board of
Pardon and Paroles, a division of the Texas Department of Criminal Justice, is
cloaked with Eleventh Amendment immunity.” 

. This
statement was not dicta because it in fact controlled a part of the court’s
decision. 

are entitled to absolute immunity from
liability for their conduct in parole decisions and in the exercise of their
decision-making powers.” 

has not shown any
other error in the district court’s decision, we affirm the district court’s
dismissal.
                                        12
      Bohannan also alleged a claim under the Texas Tort Claims Act (“TTCA”),
which provides a limited waiver of sovereign immunity for suits against Texas
government entities. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West
2013). For purposes of this suit, the TTCA waives sovereign immunity when a

                                        26
    Case: 12-10231    Document: 00512271863      Page: 27   Date Filed: 06/12/2013



                                  No. 12-10231
“condition or use” of tangible property causes personal injury in a way that
would make a private party liable under Texas law.             

Bohannan claims that state officials are liable for injuries he
suffered as a result of the false alarm and subsequent arrest caused by the use
of an allegedly defective GPS monitoring device. The district court dismissed
Bohannan’s claim because it did not meet the causation standard demanded by
§ 101.021(2). Because Bohannan has sufficiently alleged proximate cause, we
reverse the district court’s dismissal.
      In order to state a claim under the TTCA involving the use or misuse of
tangible property, “a plaintiff must allege (1) that the property was used or
misused by a governmental employee acting within the scope of his or her
employment and (2) that the use or misuse of the property was a contributing
factor to the injury.” Gonzales v. City of El Paso, 

, 623 (Tex.
App.—El Paso 1998, no pet.). The Texas Supreme Court has held that claims
arising under § 101.021(2) require a showing of proximate cause. Dallas Cnty.
Mental Health & Mental Retardation v. Bossley, 

, 342–43 (Tex.
1998). Proximate cause involves both cause-in-fact and foreseeability. Tex.
Tech. Univ. Health Sci. Ctr. v. Jackson, 

, 885 (Tex. App.—El Paso
2011, no pet.). More than mere involvement must be shown. 

. Property does not cause an injury if it only furnishes a condition
that makes injury possible. 

the property must be a substantial
factor in bringing about the injury. San Antonio State Hosp. v. Koehler, 

, 35 (Tex. App.—San Antonio 1998, pet. denied). “Requiring only that
a condition or use of property be involved would conflict with the Act’s basic
purpose of waiving immunity only to a limited degree.” 

. Thus, for example, the Texas Supreme Court held that immunity was not
waived when state employees left a door unlocked, allowing a patient to flee the
facility and eventually commit suicide by jumping in front of a truck. Bossley,

                                          27
   Case: 12-10231     Document: 00512271863     Page: 28   Date Filed: 06/12/2013



                                 No. 

, 343. The Texas Supreme Court described the claim in
Bossley as follows: “The unlocked doors permitted [the patient’s] escape but did
not cause his death.” 

contrast, the Texas Supreme Court found
immunity waived when a patient suffered injuries allegedly caused by the state’s
failure to provide a hospital bed with rails. Overton Mem’l Hosp. v. McGuire, 

, 529 (Tex. 1975).
      Here, the district court erred when it dismissed Bohannan’s complaint
because Bohannan has alleged that the faulty GPS monitor did more than just
“furnish the condition that made the injury possible.” 

. In Bossley, the Texas Supreme Court denied a waiver of immunity because
of the attenuation between the property at issue—the facility’s unlocked
doors—and the patient’s death since the patient’s escape through the unlocked
doors was only “part of a sequence of events that ended in his suicide[.]” 

allegedly faulty GPS monitor at issue proximately caused the
injuries Bohannan alleges.
      Bohannan’s complaint states that the GPS monitor unit caused him
extreme stress and high blood pressure as a result of its tendency to produce
false alarms. The faulty GPS unit caused the false alarm which resulted in
Bohannan’s imprisonment and the injuries he suffered. The GPS unit was not
a single attenuated factor in a long causal chain leading to Bohannan’s claimed
injury. Instead, Bohannan’s complaint alleges that the defective GPS monitor
was the cause-in-fact of the injuries he suffered. Moreover, he has claimed that
his injuries were foreseeable since authorities allegedly had notice of his GPS
unit’s tendency to malfunction. Therefore, as alleged, Bohannan has pleaded a
plausible claim to relief. We thus reverse the district court’s dismissal.
                                       13
      Finally, Bohannan challenges the district court’s dismissal of claims
contained in a supplemental complaint he filed on August 17, 2011. The

                                       28
   Case: 12-10231     Document: 00512271863      Page: 29   Date Filed: 06/12/2013



                                  No. 12-10231
supplemental complaint (1) re-alleges Bohannan’s deliberate indifference to
medical needs and mentions new defendants; (2) re-alleges retaliation and adds
new defendants; and (3) adds a conclusory claim regarding Bohannan’s failure
to train claim.   The district court dismissed the claims contained in the
supplemental complaint on the basis that they were frivolous and failed to state
a claim. For the reasons that follow, we affirm the district court.
      To the extent Bohannan has alleged new facts and defendants involving
deliberate indifference to medical needs, these claims fail because Bohannan has
not met the standard for such a claim. Bohannan challenges the Tarrant County
Jail’s policy regarding access to prescription medicines prescribed by third-party
doctors. Such a claim does not amount to deliberate indifference since the jail
was relying on a policy dependent on doctors’ medical judgment regarding other
physicians’ presciptions. See 

(stating that the decision
whether to provide additional treatment is a classic example of medical
judgment). Bohannan has not alleged facts that suggest a wanton disregard for
his medical needs. Gobert v. Caldwell, 

, 346 (5th Cir. 2006).
Therefore, dismissal was appropriate.
      Bohannan also alleges new instances of retaliation stemming from his use
of the grievance process. Bohannan claims that Karla Elliot, Dee Anderson, and
Bob Knowles retaliated against him for filing grievances. Dismissal of these
claims is appropriate because they rely on vicarious liability and cursory
statements lacking sufficient factual content.        Therefore, dismissal was
appropriate here as well.
      The same is true of Bohannan’s supplemented failure to train claim.
Bohannan’s supplemental complaint contains two paragraphs on point: one
merely incorporates prior factual allegations and the other conclusorily alleges
that various defendants “failed to adequately supervise and train” other
defendants. These conclusory statements, even generously read, do not plead a

                                        29
    Case: 12-10231     Document: 00512271863    Page: 30   Date Filed: 06/12/2013



                                 No. 12-10231
plausible cause of action. 

.    Therefore, we affirm the
district court’s dismissal.
                                      IV
      For the foregoing reasons, we AFFIRM the district court’s transfer of
venue, AFFIRM the denial of Bohannan’s request for counsel, and AFFIRM IN
PART and REVERSE IN PART the district court’s dismissal of Bohannan’s
claims. We REMAND for further proceedings not inconsistent with this opinion.




                                      30