Lumsden v. Lumpkin, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-20183
Summary Calendar

Raymond Lumsden, on his own behalf and on behalf of
those similarly situated,

Plaintiff—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal
Justice, Correctional Institutions Division; Mark
Harris, Warden, in both his individual and official
capacity; Ronald Givens, Warden, in both his individual
and official capacity; John Doe, Major Robinson, in
both his individual and official capacity; John Doe,
Major Castillo, in both his individual and official
capacity,

Defendants—Appellees.

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4470

United States Court of Appeals
Fifth Circuit
FILED
September 2, 2020

Lyle W. Cayce
Clerk
Case: 19-20183 Document: 00515550786 Page: 1 Date Filed: 09/02/2020

No. 19-20183
2

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Raymond Lumsden, Texas prisoner # 2109472, appeals the dismissal
for failure to state a claim of his 42 U.S.C. § 1983 claims against Lorie Davis.
Lumsden argues that he pleaded facts showing Davis’s personal
involvement. Specifically, Lumsden asserts that Davis knew of
unconstitutional conditions of confinement and that she allowed deplorable
conditions in the Polunsky Unit to remain unresolved. He also contends that
Davis is responsible, in her capacity as Director of the Texas Department of
Criminal Justice, for every employee at the Polunsky Unit and that she should
be held liable under § 1983.
A district court shall dismiss an IFP civil rights complaint if the court
determines that the action fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A plaintiff fails to state a claim upon
which relief can be granted when the claim does not contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). We review a dismissal for failure to state
a claim under § 1915(e)(2) de novo. Black v. Warren, 134 F.3d 732, 734 (5th
Cir. 1998).
Lumsden argues that he sent letters to Davis detailing the conditions
and acknowledges that he received a response in the form of an inspection
and a phone call. His complaint did not allege that Davis was responsible for
a deficient policy that resulted in injury; rather, his complaint indicated that
there were policies in place implemented by Davis and that others were not
abiding by the policies. The di strict court did not err in dismissing the § 1983

*
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
5
TH CIR. R. 47.5.4.
Case: 19-20183 Document: 00515550786 Page: 2 Date Filed: 09/02/2020

No. 19-20183
3
claims against Davis in her individual capacity. See Thompkins v. Belt, 828
F.2d 294, 303 (5th Cir. 1987).
Lumsden does not challenge the district court’s finding that his claims
against Davis in her official capacity were barred by the Eleventh
Amendment. Nor does he challenge the district court’s conclusion that his
claim for an injunction was moot. Accordingly, Lumsden has abandoned
those issues by failing to brief them. See Hughes v. Johnson, 191 F.3d 607, 613
(5th Cir. 1999).
The judgment of the district court is AFFIRMED. Lumsden’s
motion for the appointment of counsel is DENIED.
Case: 19-20183 Document: 00515550786 Page: 3 Date Filed: 09/02/2020