    Case: 12-50848     Document: 00512495684    Page: 1   Date Filed: 01/10/2014




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

                                                                         FILED
                                 No. 12-50848
                                                                     January 10, 2014
                                                                      Lyle W. Cayce
                                                                           Clerk

ROBERT CHARLES MORRIS, Individual and Ward of the State of Texas,

                                          Plaintiff - Appellant

      v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice,
                                     Defendant - Appellee



                  Appeal from the United States District Court
                       for the Western District of Texas


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
KING, Circuit Judge:
      Plaintiff-Appellant Robert Charles Morris brings this suit pursuant to
42 U.S.C. § 1983, challenging the constitutionality of the Texas statute
providing that inmates must pay a $100 annual health care services fee when
they receive medical treatment in the prison system. The district court granted
Defendant-Appellee Brad Livingston’s motion to dismiss. For the following
reasons, we AFFIRM.
            I.   FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff-Appellant Robert Charles Morris is an inmate in the custody of
the Texas Department of Criminal Justice (“TDCJ”), confined in TDCJ’s
Stevenson Unit in Cuero, Texas. He has been in TDCJ custody since 2005.
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Morris challenges the collection of the health care services fee (“fee”) under
Texas Government Code § 501.063.
      Section 501.063 provides that “[a]n inmate confined in a facility operated
by or under contract with the [TDCJ] . . . who initiates a visit to a health care
provider shall pay a health care services fee to [TDCJ] in the amount of $100.”
Tex. Gov’t Code § 501.063(a)(1) (2013). The payment of the health care services
fee “covers all visits to a health care provider that the inmate initiates until
the first anniversary of the imposition of the fee.” Id. § 501.063(a)(2) (emphasis
added).      The inmate pays the fee out of his inmate trust fund.                           Id.
§ 501.063(a)(3). If the balance in the fund is insufficient, then “50 percent of
each deposit to the fund shall be applied toward the balance owed until the
total amount owed is paid,” leaving the other fifty percent available for the
inmate’s use. Id. Section 501.063 expressly provides that TDCJ “may not deny
an inmate access to health care as a result of the inmate’s failure or inability
to pay a fee under this section.” Id. § 501.063(c). 1 The Texas Legislature




      1   Section 501.063 provides, in its entirety:
      (a)(1) An inmate confined in a facility operated by or under contract with the
      department, other than a halfway house, who initiates a visit to a health care
      provider shall pay a health care services fee to the department in the amount
      of $100.
      (2) The fee imposed under Subdivision (1) covers all visits to a health care
      provider that the inmate initiates until the first anniversary of the imposition
      of the fee.
      (3) The inmate shall pay the fee out of the inmate’s trust fund. If the balance
      in the fund is insufficient to cover the fee, 50 percent of each deposit to the fund
      shall be applied toward the balance owed until the total amount owed is paid.
      (b) The department shall adopt policies to ensure that before any deductions
      are made from an inmate’s trust fund under this section, the inmate is
      informed that the health care services fee will be deducted from the inmate’s
      trust fund as required by Subsection (a).
      (c) The department may not deny an inmate access to health care as a result
      of the inmate’s failure or inability to pay a fee under this section.
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amended § 501.063 in 2011 to increase the fee from $3 to its current $100. See
Act of July 19, 2011, 82nd Leg., 1st C.S., ch. 4, § 65.02, 2011 Tex. Gen. Laws
5333. The 2011 amendment also removed language from the section that had
granted exemptions to inmates for emergency care, routine follow-up care,
prenatal care, and chronic care. Id.
         In August 2011, before § 501.063’s effective date the following month,
prison officials posted notices at the prison about the statute’s amendment. 2
The notice listed several exemptions, even though § 501.063 did not provide for
any exemptions. 3 Morris admits that notice “was provided by TDCJ” and
“posted on housing units.” In March 2012, TDCJ promulgated an
administrative directive concerning the changes to the statute. 4 The directive


         (d) The department shall deposit money received under this section in an
         account in the general revenue fund that may be used only to pay the cost of
         correctional health care. At the beginning of each fiscal year, the comptroller
         shall transfer any surplus from the preceding fiscal year to the state treasury
         to the credit of the general revenue fund.
Tex. Gov’t Code § 501.063.
         2   The notice stated, in relevant part, that effective September 28, 2011,
         [A] new state law goes into effect that amends Section 501.063, Texas
         Government Code, and changes the fee amount the Department of Criminal
         Justice is required to collect from each offender who requests a visit to a health
         care provider.
         You will be charged a $100.00 fee for the first health care visit that you request.
         ...
         This fee covers all health care visits that you request for one year. Any visit
         that you request after the one year period will be charged another $100.00 fee.
         3   Specifically, the notice stated:
         You will not be charged for a health care visit that is for: an emergency or life-
         threatening situation; follow-up services recommended by the health care staff;
         chronic care (including communicable diseases such as HIV, AIDS and TB);
         prenatal care; health screening and evaluations related to the diagnostic and
         reception process; or, health care services necessary to comply with State law
         and regulations.
         4   See AD-06.08 (rev. 6)—Annual Health Care Services Fee for Offenders (March 2,
2012).
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provided that an inmate “who initiates a visit to health care staff shall pay an
annual health care services fee to the TDCJ in the amount of $100 unless the
visit is specifically exempt in accordance with this directive or the offender has
already paid a $100 annual health care services fee within the last 12 months.”
The directive also listed several exemptions, including for emergency care,
diagnosis or treatment of a communicable disease, mental health reviews,
follow-up visits, or prenatal services, among other exemptions.
      Morris alleges that he injured his knee in September 2005, that his
treatment requires that he take prescription medications on a regular basis,
and that some of those medications must be renewed every six months. Morris
filed this § 1983 action in federal district court in August 2011, when he
learned that he would be charged the health care services fee each year for
medical care under the amended statute, beginning in September 2011. Morris
named Governor Rick Perry as the defendant, in his individual and official
capacities.
      In his complaint, Morris alleged that he understood “his medical issues
would no longer be considered ‘chronic care’ . . . under the new standards,”
requiring him to pay the $100 fee each year for his receipt of prison medical
services. Morris maintained that “[t]he charging of prisoners or wards of the
State of Texas a medical co-pay” violates the Eighth Amendment, the Due
Process Clause of the Fourteenth Amendment, the Ex Post Facto Clause, and
the Fourth Amendment. He asked the district court to enter both a declaratory
judgment that § 501.063 violated his constitutional rights, and preliminary
and permanent injunctions preventing the State of Texas or Governor Perry
from charging medical copayments to prisoners. Morris also applied to proceed
in forma pauperis (IFP) and filed a separate motion for a preliminary
injunction.


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      The magistrate judge granted Morris IFP status, and the district court
denied his motion for a preliminary injunction, concluding that he failed to
show a substantial likelihood of success on the merits. Governor Perry moved
to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, asserting that he was entitled to absolute immunity
in his individual and official capacities for his legislative actions. He also
contended that any claim against him in his official capacity was barred by the
Eleventh Amendment, since he was not responsible for enforcing § 501.063.
Lastly, Governor Perry asserted that Morris failed to state a claim upon which
relief could be granted because § 501.063 did not violate the Constitution.
      Morris opposed the motion to dismiss. He clarified that he was not
challenging Governor Perry’s legislative actions, but naming Governor Perry
as a defendant “in his Executive duty and as the legal Guardian of the
plaintiff.” Morris also defended against the motion to dismiss on the merits,
asserting that he had stated a claim for the deprivation of his constitutional
rights. He contended that Governor Perry had failed to provide a legitimate
penological interest for the seizure of Morris’s money, and asserted that TDCJ
should allow prisoners “a modest balance” in their trust fund accounts “to buy
the simple personal commodities like toiletries available at the commissary.”
      The magistrate judge issued a report and recommendation that
Governor Perry’s motion to dismiss be granted in part. The magistrate judge
recommended that the district court dismiss Governor Perry as the defendant,
since he was not responsible for enforcing § 501.063 and the Eleventh
Amendment therefore barred the official capacity suit against him.            The
magistrate judge recommended that the district court substitute as the
defendant Brad Livingston, the executive director of TDCJ. On the merits, the
magistrate judge noted that “Morris does not allege that he might be denied
medical services if he is unable to pay the copayment fee, but instead

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acknowledges that the statute and TDCJ Notice provide that medical services
will not be denied in such a circumstance.” Accordingly, the magistrate judge
concluded that Morris “does not allege that prison officials will be deliberately
indifferent to any serious medical needs,” and thus there was no Eighth
Amendment violation. The magistrate judge recommended finding no due
process violation because TDCJ’s notice was sufficient and because § 501.063
bears a rational relationship to a legitimate government interest.           The
magistrate judge recommended finding no ex post facto violation because the
health care services fee was not “punitive” in nature. Finally, the magistrate
judge recommended finding no unreasonable seizure because, although
inmates have a property interest in their prison trust fund accounts, “[t]he
collection of funds is directly tied to a reasonable goal on the part of the state
legislature and TDCJ—that is, to reduce the state’s costs in delivering health
care services to prisoners by delegating minor financial responsibility to the
inmate-patients—and is reasonable under the circumstances.”
      Morris objected to the report and recommendation. He admitted that
substituting Livingston as a defendant was proper, but he argued that
Governor Perry should not have been dismissed because he was Morris’s legal
guardian. He repeated his contentions in support of his claims on the merits
and, for the first time, alleged that “TDCJ does not provide all hyg[ie]ne
necessities.” He did not specify what hygiene necessities are not provided. The
district court accepted the report and recommendation, and granted Governor
Perry’s motion to dismiss for failure to state a claim. The district court warned
Morris that the filing of three actions or appeals dismissed as frivolous or for
failure to state a claim would bar him from bringing new IFP civil actions.
Morris timely appealed.




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                       II.     STANDARD OF REVIEW
      “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). This Court “review[s] a district
court’s dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction de
novo.” Id.; see Fed. R. Civ. P. 12(h)(3). “The party asserting jurisdiction bears
the burden of proof for a 12(b)(1) motion to dismiss.” Wolcott, 635 F.3d at 762.
We review claims of sovereign immunity de novo. Delta Commercial Fisheries
Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269, 273–74 (5th Cir.
2004).
      Likewise, we review a district court’s dismissal under Rule 12(b)(6) de
novo, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiffs.” Wolcott, 635 F.3d at 763. Rule 8 of the
Federal Rules of Civil Procedure does not require “detailed factual allegations,
but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). Thus, a plaintiff’s claim must contain “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007).       This plausibility standard is met where a plaintiff
“pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
                     III.    CONSTITUTIONAL CLAIMS
      Morris argues that the district court erred by dismissing Governor Perry
and holding that § 501.063 did not violate the Eighth Amendment, the Due
Process Clause of the Fourteenth Amendment, the Fourth Amendment, or the
Ex Post Facto Clause.        These arguments are unpersuasive, and will be


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addressed in turn. We conclude that the district court was correct in all
respects, and we affirm its decision.
       A.     Dismissal of Governor Perry
       Morris argues that the district court erred in dismissing Governor Perry
as a defendant. The district court determined that Morris’s claims against
Governor Perry were barred by the Eleventh Amendment, but it substituted
Livingston as defendant in his official capacity as the executive director of
TDCJ. We conclude that the district court did not err.
       “Sovereign immunity is the privilege of the sovereign not to be sued
without its consent.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct.
1632, 1637 (2011). 5 Accordingly, absent a waiver or valid abrogation, “federal
courts may not entertain a private person’s suit against a State.” Id. at 1638.
“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office. As such, it
is no different from a suit against the State itself.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (internal citation omitted); see also Union Pac.
R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 n.3 (5th Cir. 2011).
Accordingly, Morris’s suit against Governor Perry is “no different from a suit
against” the State of Texas. Ex parte Young, 209 U.S. 123 (1908) provides an
exception to this rule: “state officers c[an] be sued in federal court despite the
Eleventh Amendment . . . [if] the officers have ‘some connection with the
enforcement of the act’ in question or [are] ‘specially charged with the duty to
enforce the statute’ and [are] threatening to exercise that duty.” Okpalobi v.
Foster, 244 F.3d 405, 414–15 (5th Cir. 2001) (en banc) (quoting Ex parte Young,



       5 The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI.
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209 U.S. at 157, 158). The required “connection” is not “merely the general
duty to see that the laws of the state are implemented,” but “the particular
duty to enforce the statute in question and a demonstrated willingness to
exercise that duty.” Id. at 416.
      Section 501.063 makes clear that TDCJ is the agency responsible for the
section’s administration and enforcement. See, e.g., Tex. Gov’t Code
§ 501.063(b) (providing that TDCJ “shall adopt policies to ensure” notice is
given to an inmate before a fee is deducted from an inmate’s account). Section
501.063 does not specially task Governor Perry with its enforcement, or
suggest that he will play any role at all in its enforcement. As a result,
Governor Perry is not a proper defendant. Morris cites no authority for the
proposition that Governor Perry becomes a proper defendant because he is in
a “guardian-ward relationship” with Morris, nor do we find any. Therefore, we
affirm the dismissal of Governor Perry and turn to the merits of Morris’s claim.
      B.    Morris’s Substantive Constitutional Claims
            1. Eighth Amendment Challenge
      Morris asserts that the health care services fee violates the Eighth
Amendment’s ban on cruel and unusual punishment. We construe his claim
as asserting that he is being denied medical care, or in the alternative, that
the fee requires him to decide between obtaining medical care or basic
necessities. We conclude that his complaint does not state sufficient facts to
support an Eighth Amendment claim under either theory of relief.
      Since “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” the “federal courts must take
cognizance of the valid constitutional claims of prison inmates.” Turner v.
Safley, 482 U.S. 78, 84 (1987). “The Eighth Amendment, which applies to the
States through the Due Process Clause of the Fourteenth Amendment,
prohibits the infliction of ‘cruel and unusual punishments’ on those convicted

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of crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97 (1991) (internal citation
omitted).    In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court
explained that the principles behind the Eighth Amendment “establish the
government’s obligation to provide medical care for those whom it is punishing
by incarceration.” Id. at 103; see also Wilson, 501 U.S. at 297.
       In City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983),
the Court considered whether the Constitution affects the allocation of costs
for medical care. 6 The Court explained that “as long as the governmental
entity ensures that the medical care needed is in fact provided, the
Constitution does not dictate how the cost of that care should be allocated as
between the entity and the provider of the care. That is a matter of state law.”
Id. at 245. The Court stated that “[n]othing we say here affects any right a
hospital or governmental entity may have to recover from a detainee the cost
of the medical services provided to him.” Id. at n.7. From this, the lower courts
have concluded that there is “no general constitutional right to free health
care.” Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997); see Poole v. Isaacs,
703 F.3d 1024, 1026 (7th Cir. 2012) (the “Eighth Amendment does not compel
prison administrators to provide cost-free medical services to inmates who are
able to contribute to the cost of their care”); Bihms v. Klevenhagen, 928 F. Supp.



       6  In City of Revere, police officers shot and wounded a suspect, whom they brought to
Massachusetts General Hospital’s (“MGH”) emergency room for medical treatment. 463 U.S.
at 240–41. MGH sent the Chief of Police of Revere a bill for the cost of the medical services
it rendered the suspect, and subsequently sued Revere in state court to recover on the unpaid
bill. Id. at 241. The Massachusetts Supreme Judicial Court had held that the Eighth
Amendment required that “Revere be liable to the hospital for the medical services rendered.”
Id. The Supreme Court reversed, explaining that “the injured detainee’s constitutional right
is to receive the needed medical treatment; how the city of Revere obtains such treatment is
not a federal constitutional question.” Id. at 245.
        Even though City of Revere concerned a pretrial detainee’s due process rights, the
Court noted that “the due process rights of a person in [the wounded suspect’s] situation are
at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id.
at 244.
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717, 718 (S.D. Tex. 1996) (“As [plaintiff] was obliged to pay court costs, he may
be obliged to pay his medical costs.”).
       In the medical context, “to state a cognizable [Eighth Amendment] claim,
a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. It is only such indifference
that can offend ‘evolving standards of decency’ in violation of the Eighth
Amendment.” 7 Estelle, 429 U.S. at 106. Since Estelle said that “only the
‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment,
a prisoner advancing such a claim must, at a minimum, allege ‘deliberate
indifference’ to his ‘serious’ medical needs.” Wilson, 501 U.S. at 297 (internal
citation omitted). The Court explains the test as follows:
       [A] prison official violates the Eighth Amendment only when two
       requirements are met. First, the deprivation alleged must be,
       objectively, “sufficiently serious”; a prison official’s act or omission
       must result in the denial of “the minimal civilized measure of life’s
       necessities”[.] . . . The second requirement follows from the
       principle that “only the unnecessary and wanton infliction of pain
       implicates the Eighth Amendment.” To violate the Cruel and
       Unusual Punishments Clause, a prison official must have a
       “sufficiently culpable state of mind.” In prison-conditions cases
       that state of mind is one of “deliberate indifference” to inmate
       health or safety . . . .
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted).
       We conclude that Morris has not alleged facts that exhibit deliberate
indifference. “[T]he deliberate indifference standard of Estelle does not



       7 The Supreme Court endorsed the use of the deliberate indifference test for Eighth
Amendment challenges in prison conditions cases in Wilson, 501 U.S. at 297, and other courts
considering prison medical copayment statutes and policies have likewise applied a
deliberate indifference analysis. See Reynolds, 128 F.3d at 174; Shapley v. Nev. Bd. of State
Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1984) (“The complaint alleges no facts which the
court could construe as deliberate indifference under Estelle[, 429 U.S. at 106–07].”);
Breakiron v. Neal, 166 F. Supp. 2d 1110, 1116 (N.D. Tex. 2001) (“Deducting payments from
[prisoner’s] inmate trust account does not of itself exhibit deliberate indifference by
[defendant].”).
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guarantee prisoners the right to be entirely free from the cost considerations
that figure in the medical-care decisions made by most non-prisoners in our
society.” Wagner, 128 F.3d at 175; see also Farrakhan v. Johnson, 2009 WL
1360864, at *5 (E.D. Va. May 13, 2009) (unpublished) (“Inmates are not
entitled to free medical care, and an inmate’s displeasure at having to pay such
co-payment does not present a constitutional claim.”).
      Morris has not alleged that he is denied medical care. He also has not
pled sufficient facts to show that the health care services fee acts as a
functional denial of medical care, by requiring him to obtain either medical care
or basic necessities.    The Eighth Amendment requires prison officials to
provide inmates with “adequate food, clothing, shelter, and medical care.”
Farmer, 511 U.S. at 832. Although Morris alleges that “TDCJ does not provide
all hyg[ie]ne necessities,” he does not identify any necessities, hygienic or
otherwise, that he is denied. His assertion that he should be permitted a
“modest balance” in his trust fund account “to buy the simple personal
commodities like toiletries available at the commissary” is similarly
unavailing. See Shapley, 766 F.2d at 408 (“Pro se complaints must be liberally
construed, but [plaintiff] alleges no facts revealing how the $3 fee requirement
affected him.” (citation omitted)).
      Thus, while we are cognizant of the concern expressed in Collins v.
Romer, 962 F.2d 1508 (10th Cir. 1992), that a statute not “force[] the Plaintiffs
to choose between basic medical care or basic hygiene necessities,” id. at 1510–
11, Morris has not alleged that he faced any such choice. See also Wagner, 128
F.3d at 178 (“It is apparent that the Berks County Prison Program does not
force inmates to choose between necessary medical care and other essentials.”).




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Accordingly, Morris fails to allege that any deprivation is sufficiently serious
to constitute deliberate indifference. See Iqbal, 556 U.S. at 678. 8
       Importantly, § 501.063 provides that TDCJ will not deny any inmate
medical care because of an inmate’s inability to pay.                    Tex. Gov’t Code
§ 501.063(c). As in Wagner, the program here “does not ‘condition the provision
of needed medical services on an inmate’s ability to pay.’ Under the program,
no inmate is ever denied medical care for lack of money.” 128 F.3d at 174; see
also Breakiron, 166 F. Supp. 2d at 1116 (“[Plaintiff] has not alleged, moreover,
that he was denied medical treatment because of any inability to pay for the
medical treatment.”); McCall v. Johnson Cnty. Sheriff’s Dep’t, 71 F. App’x 30,
31 (10th Cir. 2003) (unpublished) (“It is clearly constitutionally acceptable to
charge inmates a small fee for health care where, as here, indigent inmates are
guaranteed service regardless of ability to pay. Despite [plaintiff’s] claim, it
appears that penurious prisoners have a debit placed on their prison account
balance. As such, [plaintiff] does not allege that he was denied access to
medical care due to any inability to satisfy the copayment requirement . . . .”).
As noted, Morris does not allege that he was denied access to medical care
because of his inability to pay the fee, or that provision of medical care was
delayed as a result of his inability to pay. Rather, he admitted in his objection
to the report and recommendation that his account was debited a $100 fee in
November 2011, and that he was provided with medical care.
       Moreover, § 501.063 creates a system under which only fifty percent of
the monies deposited into the trust fund accounts of indigent inmates are
credited against any negative balance. See Tex. Gov’t Code § 501.063(a)(3).




       8Because Morris fails to allege the denial of medical care or the forced choice between
medical care and basic necessities, we are not called upon to determine which specific items
may constitute basic necessities for purposes of the Eighth Amendment.
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The other fifty percent remains available for an inmate’s use for other means,
such as to pay court fees or purchase items from the commissary.
       Finally, for the same reasons we outline above, “[t]o the extent that
[defendant] is arguing for some form of per se unconstitutionality, we reject his
position.” Poole, 703 F.3d at 1027; see also Breakiron, 166 F. Supp. 2d at 1115–
1116 (“Charging inmates for medical care, furthermore, is not per se
unconstitutional. . . . Deducting payments from a prison trust account does not
of itself violate the Eighth Amendment’s prohibition against cruel and unusual
punishment.”); McCall, 71 F. App’x at 31; Bihms, 928 F. Supp. at 729. 9
       We are not persuaded by the statement in Department of Corrections v.
Sisters of St. Francis, 836 S.W.2d 719, 725 (Tex. App.—Hous. [1st Dist.] 1992,
no writ), that “[t]he right of an incarcerated prisoner to free medical care is
recognized both under Texas statute and under the United States
Constitution.” The court cites Estelle for this proposition, but Estelle offers no
support, simply stating that the Eighth Amendment requires the government
“to provide medical care for those whom it is punishing by incarceration.” 429
U.S. at 103. Additionally, Sisters of St. Francis did not concern copayment
obligations by inmates (or even an Eighth Amendment challenge), but the
State’s liability to a private medical facility that provided care for an inmate
on emergency medical reprieve. For these reasons, we find the Sisters of St.
Francis court’s statement about prisoner access to medical care inapplicable.




       9Morris also argues that the district court applied the wrong standard of review in
using Turner, 482 U.S. at 89. We are doubtful that the legitimate penological interest test
from Turner applies here, since Turner concerned a prison regulation, not a statute, and dealt
with impingement on inmates’ First Amendment rights, not with Eighth Amendment issues.
However, even if the test applies, we conclude that § 501.063 is related to a legitimate
penological interest because the statute seeks to control the prison budget, and we have
recognized that budgetary considerations may be a valid penological concern. See
Moussazadeh v. Tex. Dep’t of Crim. Justice, 703 F.3d 781, 795 (5th Cir. 2012); Baranowski v.
Hart, 486 F.3d 112, 122 (5th Cir. 2007).
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      The fact that the prison regulations and statutes analyzed by other
courts in similar cases impose smaller fees than that in § 501.063 is not
dispositive. All inmates are guaranteed medical care regardless of ability to
pay, and half of all deposits into inmates’ trust fund accounts is reserved for
their use, even if there is a negative balance due to payment of a health care
services fee. Further, Morris has not adequately alleged that he is forced to
choose between paying for medical care and paying for basic necessities.
      We conclude that Morris has not pled an Eighth Amendment violation.
            2. Due Process Challenge
      Morris next argues that the district court erred in denying him relief on
his procedural due process claim. “To state a Fourteenth Amendment due
process claim under § 1983, a plaintiff must first identify a protected life,
liberty or property interest and then prove that governmental action resulted
in a deprivation of that interest.” Gentilello v. Rege, 627 F.3d 540, 544 (5th
Cir. 2010) (internal quotation marks and citation omitted). In procedural due
process claims, “the deprivation by state action of a constitutionally protected
interest in life, liberty, or property is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of
law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal quotation marks
omitted). A government decision depriving an individual of his right to “life,
liberty or property” must, at a minimum, be preceded by notice and an
opportunity for the individual to be heard. Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950).
      We assume arguendo that inmates have a protected property interest in
the funds in their prison trust fund accounts, entitling them to due process
with respect to any deprivation of these funds. Rosin v. Thaler, 417 F. App’x




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                                         No. 12-50848

432, 434 (5th Cir. 2011) (per curiam) (unpublished); see Eubanks v. McCotter,
802 F.2d 790, 793 (5th Cir. 1986). 10
       Morris argues that the notice was inadequate, and he also seems to argue
that the prison provides inadequate post-deprivation process for challenging
incorrect fee assessments. Specifically, Morris contends that TDCJ staff do not
give notice to prisoners “at each visit,” and he argues that the posted notice is
inaccurate because it states that inmates “will not be charged” for certain
health care visits, even though § 501.063 does not contain any exemptions.
       Importantly, Morris’s attack is on the statute itself: his claim is that
§ 501.063 is unconstitutional. He does not attack the regulation that the prison
adopted, AD-06.08, or the regulation’s effect on him. 11 As such, the regulation
is relevant to this appeal only insofar as Morris’s complaint about notice
implicates the regulation.
       We conclude that the notice provided was constitutionally adequate.
Morris admitted that TDCJ posted notices about the statute in the prison. The
notice informs inmates that under § 501.063, inmates will be charged a $100
fee for health care visits effective September 2011, which “covers all health
care visits that you request for one year.” AD-06.08, which TDCJ promulgated
the following March, includes additional provisions for notice to offenders. 12



       10See also Breakiron, 166 F. Supp. 2d at 1114; Abdullah v. State, 211 S.W.3d 938, 943
(Tex. App.—Texarkana 2007, no pet.); Wagner, 128 F.3d at 179; Mahers v. Halford, 76 F.3d
951, 954 (8th Cir. 1996); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985).
       11Morris did not amend his complaint to add a claim challenging the prison regulation
as applied.
       12   Specifically, AD-06.08 provides:
       IV. Notice to Offender
       Offenders shall be provided notice explaining the annual health care services
       fee and which services are exempt. The notice shall clearly indicate that no
       offender will be denied access to health care services due to an inability or
       failure to pay. Such notices shall be prepared in both English and Spanish.
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                                        No. 12-50848

Taken together, this notice is sufficient. See Myers v. Klevenhagen, 97 F.3d 91,
95 (5th Cir. 1996) (per curiam) (“[W]ith respect to the alleged lack of notice, we
think that the Sheriff met the constitutional minima by posting information
regarding the new medical services policy in the jail cells, by distributing
explanatory memoranda to the jail’s personnel and by holding meetings about
the new policy with medical personnel.”).
       We further find that the discrepancy between the posted notice and the
statute does not render the notice inadequate. One of an agency’s primary
roles is to develop and implement regulations based on legislative enactments.
See, e.g., Galveston Cnty. v. Tex. Dep’t of Health, 724 S.W.2d 115, 123 (Tex.
App.—Austin 1987, writ refused n.r.e.).                  Although TDCJ had not yet
implemented regulations concerning § 501.063 when it posted the notice (i.e.,
AD-06.08), the notice itself was an exercise of TDCJ’s regulation-making
authority.    When TDCJ promulgated AD-06.08 several months later, that



       A. A written explanation of the annual health care services fee and
          exemptions shall be provided to each offender during initial orientation and
          intake.
       B. A printed notice explaining the annual health care services fee and which
          services are exempt shall be prepared and affixed onto or near each sick
          call request box and shall be prominently posted in the patient waiting area
          of each unit health care department.
       C. The offender Sick Call Request form shall include a statement that reads
          as follows: “In accordance with state law, if this visit meets offender annual
          health care services fee criteria, I understand that my trust fund account
          may be charged a $100 fee. I also understand that I will be provided access
          to health care services regardless of my ability to pay this fee.” The Sick Call
          Request form should be signed by the offender at the time of submission.
          Regardless of whether or not the offender signs the Sick Call Request the
          annual health care services fee shall be deducted from the offender’s
          account if the visit to health care staff prompted by the Sick Call Request
          is found to meet the criteria.
See also Tex. Gov’t Code § 501.063(b) (“The department shall adopt policies to ensure that
before any deductions are made from an inmate’s trust fund under this section, the inmate
is informed that the health care services fee will be deducted from the inmate’s trust fund as
required by Subsection (a).”).
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                                      No. 12-50848

directive was consistent with the posted notice in listing exemptions not
included in the amended version of § 501.063. Accordingly, the fact that the
posted notice, unlike § 501.063 as amended, excluded payments in certain
circumstances does not render that notice unconstitutional. 13
       Morris does not successfully allege any other due process violation. He
does not explain how the State’s post-deprivation remedy is inadequate in any
way. See Myers, 97 F.3d at 95–96 (“[B]ecause a postdeprivation state remedy
existed, which the plaintiffs have failed to show was inadequate, all these
alleged violations fail to state an actionable constitutional claim under section
1983.”); Breakiron, 166 F. Supp. 2d at 1114 (holding that plaintiff failed to
allege that deductions from prison trust fund account occurred without due
process of law). In fact, he admits that he received credit for at least one $100
charge that he alleged had been deducted incorrectly. Accordingly, Morris’s
due process claims fail.
              3. Fourth Amendment Challenge
       Morris argues that the health care services fee constitutes an
unreasonable seizure in violation of the Fourth Amendment. A seizure of
property occurs when there is “some meaningful interference with an
individual’s possessory interests in that property.” United States v. Jacobsen,
466 U.S. 109, 113 (1984). “The Fourth Amendment requires that any seizure
of property by the State be reasonable.” RBIII, L.P. v. City of San Antonio, 713
F.3d 840, 846 (5th Cir. 2013). As noted above, we assume arguendo that
inmates have a property interest in their inmate trust fund accounts. Rosin,
417 F. App’x at 434; Breakiron, 166 F. Supp. 2d at 1114.
       The district court determined that the seizure of Morris’s funds was
reasonable because it was related to the legitimate penological purpose of


       13As noted above, because Morris does not challenge the regulation’s effect on him,
we are not presented here with any question about the how the prison has executed its policy.
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                                  No. 12-50848

controlling the prison budget. In his brief, Morris contends that the district
court erred in determining that budgetary concerns were a valid penological
concern. We have held that prison policies adversely affecting a prisoner’s
constitutional rights may be justified based on budgetary concerns.           See
Moussazadeh, 703 F.3d at 795 (recognizing that “cost reduction, as a general
matter, is unquestionably a compelling interest of TDCJ,” but expressing
skepticism that TDCJ’s savings in denying kosher meals to a prisoner
constitutes a compelling interest); Baranowski, 486 F.3d at 122 (concluding
that prison’s failure to provide kosher meals was justified in part because of
expense). The district court concluded that the fee increase was based on
budgetary concerns, and Morris concedes the point.
      Moreover, we are skeptical that the assessment of the fee is a seizure
given its nature as a fee charged in exchange for the provision of medical care.
See, e.g., Wagner, 128 F.3d at 180 (“[T]his is not a situation in which the
inmates are deprived of the benefits of their property and receive nothing in
return; rather in exchange for the fees, the inmates receive the benefit of health
care . . . .”).   Additionally, as discussed supra, adequate post-deprivation
procedures are in place, should Morris’s trust fund account be charged
unreasonably or erroneously.
      Accordingly, Morris has not shown that the taking of funds from his
inmate trust fund account to pay for his medical care was unreasonable in light
of the goal of controlling the prison budget.       Therefore, Morris has not
established that the district court erred in denying relief on his Fourth
Amendment claim.
             4. Ex Post Facto Claim
      Morris next contends that the health care services fee violates his right
to be free from ex post facto punishments. He concedes that his claim is
foreclosed by Supreme Court precedent, though he seeks to preserve his claim

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                                       No. 12-50848

for review by the Supreme Court. 14 Morris does not articulate any argument
for why § 501.063 constitutes an ex post facto punishment, nor does he cite any
authority for his position. We conclude that Morris has waived this argument.
See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we
liberally construe the briefs of pro se appellants, we also require that
arguments must be briefed to be preserved.” (quoting Price v. Digital Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988))); Sylvester v. Cain, 311 F. App’x
733, 735 (5th Cir. 2009) (per curiam) (unpublished) (“[A]lthough pro se briefs
are afforded liberal construction, even pro se litigants must brief arguments in
order to preserve them. [Defendant] may not incorporate by reference the
arguments that he made in his district court pleadings.” (internal citations
omitted)).
       C. Miscellaneous Claims
       Morris also argues that: (1) there are constitutional inadequacies in the
prison library; (2) § 501.063 violates the Bill of Attainder Clause; and (3) the
district court discriminated against him on the basis of his IFP status when it
warned him not to file additional frivolous complaints. We find each of these
arguments waived because Morris failed to raise it below. See XL Specialty
Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“An
argument not raised before the district court cannot be asserted for the first
time on appeal.”).
                                 IV.     CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.


       14He argues: “While Morris still contends that the statute in question is a violation of
the ex post facto clause, he also understands that the courts are bound by the Supreme Court
law. Morris does not waive this argument, but preserves such to petition the Supreme Court
on such unique argument at a later date, if necessary. Therefore, Morris incorporates his
previous arguments and objections raised in district court herein.”
                                             20
