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

                                      No. 13-40599                                FILED
                                                                               April 1, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
MICHAEL GARRETT,

                                                 Plaintiff – Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Defendant – Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-cv-00070




Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Michael Garrett filed a complaint pursuant to 28
U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”) challenging the
conditions of his confinement and seeking ADA sanctions and injunctive relief.
The magistrate judge dismissed all of Garrett’s claims with prejudice for
failure to state a claim on which relief may be granted pursuant to 28 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-40599
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). For the reasons below, we REVERSE the
district court’s dismissal of Garrett’s Eighth Amendment claims and AFFIRM
its dismissal of his Fourth Amendment, equal protection, and ADA claims.
                         FACTUAL BACKGROUND
      On March 13, 2013, Michael Garrett, a prisoner incarcerated in the
McConnell Unit, Texas Department of Criminal Justice, Correctional
Institutions Division (“TDCJ-CID”), filed a complaint pursuant to § 1983 and
the ADA against (1) Rick Thaler, then the TDCJ-CID Director, (2) Eileen
Kennedy, Region IV Director, (3) Senior Warden Currie, (4) Assistant Warden
Monroe, and (5) unnamed defendants identified in the McConnell Unit’s
employee log book “for 18 and 19 dorm,” including officers from other prison
units. Garrett brought the following claims, challenging his conditions of
confinement between 2008 and 2013: (1) deprivation of a minimum of six hours
of uninterrupted sleep, in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment; (2) use of surveillance cameras
throughout the “bathroom shower area and dressing (cubicle) area” in violation
of his rights to privacy and equal protection; and (3) violation of the ADA’s
architectural guidelines in the McConnell Unit’s showers, restrooms, and cells.
Garrett sought the imposition of sanctions under the ADA and injunctive relief,
including change of the prison schedule to accommodate six hours of sleep,
removal of cameras from the bathrooms, and installation of safety rails in the
toilet areas and showers.
      With Garrett’s consent, a magistrate judge presided over all proceedings
in the case. Following an evidentiary hearing conducted pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds by Neitzke
v. Williams, 490 U.S. 319, 324 (1989), the magistrate judge issued an opinion
and order of dismissal for failure to state a claim on which relief can be granted.
The magistrate judge ruled sua sponte that any claims arising before March
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                                       No. 13-40599
13, 2011, were time barred.               Despite the time-bar determination, the
magistrate judge also addressed each of Garrett’s three claims and found that
he had failed to state a claim as to any of them. First, the magistrate judge
concluded that Garrett could not state a cognizable Eighth Amendment claim
even if the prison schedule deprived him of adequate sleep because the
McConnell Unit’s 24-hour operational schedule was designed to preserve
prison security, not inflict pain. Second, the magistrate judge found that
Garrett had not asserted a valid privacy or equal protection claim with respect
to the security cameras because prisoners do not have Fourth or Fourteenth
Amendment privacy rights. Finally, the magistrate judge held that, even if
Garrett’s vertigo was a qualifying disability under the ADA, the accessibility
provisions of the ADA apply only to constructions and alterations of public
buildings occurring after 1992; and, further that Garrett failed to show that
the absence of railings in the bathrooms and showers amounted to cruel and
unusual punishment, as required for an ADA claim. Garrett timely appealed. 1
                              STANDARD OF REVIEW
       The Prison Litigation Reform Act provides that a district court may
dismiss a prisoner’s civil rights complaint at any time if it fails to state a claim
on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C.
§ 1915A(b)(1), 42 U.S.C. § 1997e(c)(2). Section 1915A dismissals are designed
to “filter out” the large number of frivolous prisoner claims filed in federal
court, to “ensure[] that the flood of nonmeritorious claims does not submerge



       1 Garrett also requests assistance of counsel, saying only: “Plaintiff is only a man with
no legal tenure and he may comprehend law that does not make him a civil lawyer. Thus,
the reason why plaintiff back on 13 March 2013 requested counsel to prevent and litigate his
claims before the court.” We find this two-sentence request is inadequately briefed and
accordingly waived. See Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824, 831 (5th Cir.
1993) (“Questions posed for appellate review but inadequately briefed are considered
abandoned.”).
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                                       No. 13-40599
and effectively preclude consideration of [claims] with merit.” Jones v. Beck,
549 U.S. 199, 203 (2007). We review dismissals for failure to state a claim
based on § 1915(e)(2)(B)(ii) under the same de novo standard applicable to
dismissals made pursuant to Federal Rule of Civil Procedure 12(b)(6). Harris
v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption
that all the allegations . . . are true (even if doubtful in fact).” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks, citations, and
footnote omitted).
                                      DISCUSSION
   A.       Sleep Deprivation
        Garrett challenges the magistrate judge’s dismissal of his sleep
deprivation claim, arguing that the TDCJ-CID is subjecting him to cruel and
unusual punishment by forcing him to choose between eating and sleeping. He
contends that the only scheduled period for sleep is from 10:30 p.m. until 2:30
a.m. and that sleep deprivation has negative long-term health effects. He is
seeking a change in the prison schedule to allow for seven hours of
uninterrupted sleep.
        We construe Garrett’s complaint as including official capacity complaints
against the defendants for injunctive relief. 2              The Eleventh Amendment
permits suits for prospective injunctive relief against state officials acting in



        2Garrett’s complaint did not expressly state that he was suing the defendants in their
individual capacities or official capacities or both, and the magistrate judge’s opinion did not
address the issue. However, Garrett’s complaint sought injunctive relief and identified each
defendant by title; further, he testified at the Spears hearing that he does not seek monetary
damages, only injunctive relief. His complaint may therefore be liberally construed as
including official capacity claims against the defendants for injunctive relief. Cf. Mayfield v.
Tex. Dep’t of Criminal Justice, 529 F.3d 599, 604-05 (5th Cir. 2008) (“Construing Mayfield’s
pro se complaint liberally, we find that it seeks declaratory relief as well as a permanent
injunction against Johnson and Pierce in their official capacities.”).
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                                 No. 13-40599
violation of federal law. Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d
1052, 1054 (5th Cir. 1998). Accordingly, such relief is available if Garrett can
establish an Eighth Amendment violation. See, e.g., Walker v. Nunn, 456 F.
App’x 419, 422 (5th Cir. 2011) (unpublished).
        To establish an Eighth Amendment violation based on the conditions of
his confinement, a prisoner must satisfy both an objective and subjective
component. Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995). “First, he
must show that his confinement resulted in a deprivation that was ‘objectively,
sufficiently serious.’” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.
2008) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In other words,
the prisoner must demonstrate that the deprivation resulted in the denial of
“the minimal civilized measure of life’s necessities.” Wilson v. Seiter, 501 U.S.
294, 298 (1991). “[S]leep undoubtedly counts as one of life’s basic needs.”
Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999).          Thus, conditions
designed to prevent sleep may violate the Eighth Amendment. Id. Second, to
satisfy the subjective component, prison officials must have been deliberately
indifferent to the alleged conditions and hence possessed a sufficiently culpable
state of mind. Wilson, 501 U.S. at 297-303; Woods, 51 F.3d at 581. To establish
deliberate indifference, the prisoner must show that officials knew of and
disregarded an excessive risk to inmate health or safety. Farmer, 511 U.S. at
837.
        At the Spears hearing, Garrett explained that, although previously he
was housed in a cell at the McConnell Unit, he had been in a prison dorm for
about 11 months. Garrett testified that his daily schedule began at 2:30 a.m.
with breakfast call and ended at 10:30 p.m. with lights out, resulting in only
four hours scheduled for sleep, and that during those four hours, he would be
awakened for prisoner “head counts.” On Mondays through Thursdays, when
he worked at the prison garment factory, Garrett’s schedule was as follows:
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                                  No. 13-40599
(1) he was awakened at 2:30 a.m. for breakfast, which lasted until 3:30 a.m.;
(2) between 3:30 a.m. or 4:00 a.m. and 5:00 a.m., a clothing and linens exchange
was conducted; (3) between 5:00 a.m. and 6:00 a.m., morning head count was
conducted; (4) he worked at the garment factory between 6:00 a.m. and 3:00
p.m.; (5) he attended dinner between 3:00 p.m. and 5:00 p.m.; (6) he was
allowed to shower between 5:00 p.m. and 7:00 p.m.; (7) evening count was
between 7:00 p.m. and 8:00 p.m.; (8) mail call was between 9:00 p.m. and 10:00
p.m.; (9) at 10:30 p,m., it was time for lights out; and (10) ID checks were
conducted every hour until wake-up time at 2:30 a.m. On the three days he
did not work, noise in the dorm prevented him from sleeping. He was able to
get a few extra hours of sleep on Saturdays and Sundays. During the week, he
could choose to miss breakfast and sleep later, but he did not want to miss the
meal. Garrett testified that he suffered from headaches as a result of not
sleeping, did not eat as he should, was forgetful, was on an “insomniac
schedule,” and felt like “a zombie.” Although Garrett did not submit a sick call
request regarding his sleep deprivation symptoms, he complained to the prison
medical staff. Earplugs did not help him sleep because of the loud fans, the
televisions, and loud talking and hollering by other prisoners. Garrett wanted
the unit to return to a schedule in which inmates had breakfast later to allow
seven hours for sleep.
      Under our precedent, taking all facts alleged as true and in the light
most favorable to Garrett, the sleep deprivation he has alleged could plausibly
constitute a denial of “the minimal civilized measure of life’s necessities”
sufficient to satisfy the objective component of the Eighth Amendment inquiry.
See Harper, 174 F.3d at 720 (reversing district court’s dismissal of a § 1983 suit




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                                        No. 13-40599
alleging that sleep deprivation constitutes cruel and unusual punishment). 3
Our fellow courts have likewise found that inmates plausibly alleged cruel and
unusual punishment in violation of the Eighth Amendment when prison
conditions prevented adequate sleep. See, e.g., Walker v. Schult, 717 F.3d 119
(2d Cir. 2013) (finding that sleep deprivation may deny prisoner of a minimal
civilized measure of life’s necessities).
       As to the second prong, Garrett testified that he repeatedly complained
to the prison medical staff about the sleep deprivation resulting from the
schedule and was told the schedule was a security issue. Prison officials’
failure to change the schedule or otherwise “respond reasonably to risk,”
despite their knowledge of the harm that could result from the sleep
deprivation, could plausibly give rise to a finding of deliberate indifference.
Farmer, 511 U.S. at 835. Accordingly, we conclude that Garrett’s allegations,



       3 In dismissing Garrett’s claim for failure to state a claim, the magistrate judge relied
on our unpublished opinion in Walker v. Nunn, 456 F. App’x 419 (5th Cir. 2011). In Walker,
456 F. App’x at 421-422, this court affirmed the district court’s grant of summary judgment
against an inmate alleging sleep deprivation in violation of the Eight Amendment due to “the
prison schedule, noise in the prison, and misconduct by prison staff.” However, this court
particularized from the record that the “structure of the prison schedule, hourly ingresses
and egresses, intercom announcements, and daily counts were reasonably related to
legitimate penological interests” and that there was an absence of a genuine issue of material
fact regarding whether the defendants “took reasonable measures in balancing the daily
activities necessary to the functioning of the prison and the time during which prisoners could
choose to sleep.” Id. at 423. Walker constitutes persuasive authority yet was decided on
summary judgment on a developed record, and it nowhere indicates how many hours were
devoted to sleep (presumably more than four) under the prison schedule at issue. See Walker,
456 F. App’x at 421. Analysis of deprivation of “the minimal civilized measure of life’s
necessities” and “deliberate indifference” are fact-intensive inquiries not easily determined
without discovery. See Harper, 174 F.3d at 720 (reversing district court’s dismissal for failure
to state a claim as prisoner’s claim was not indisputably meritless). The magistrate judge
here also incorrectly held that, in order to prevail on his sleep deprivation claim, Garrett
needed to establish a physical injury for purposes of 42 U.S.C. § 1997e(e), a showing he had
not made. However, “in the Eighth Amendment context[,] . . . the physical injury requirement
of § 1997e(e) does not apply to requests for declaratory or injunctive relief.” Geiger v. Jowers,
404 F.3d 371, 375 (5th Cir. 2005). Garrett testified that he sought injunctive relief and did
not seek damages.
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viewed in the light most favorable to him, could set forth a plausible Eighth
Amendment claim. See In re Katrina Canal Breaches Litig., 495 F.3d at 205;
Harper, 174 F.3d at 720. As in Harper, 174 F.3d at 720, we emphasize that we
do no more than determine that Garrett has alleged a nonfrivolous claim of an
Eighth Amendment violation. We do not intimate that Garrett has established
a claim on which relief can be granted.
   B.     Surveillance Cameras
        Garrett asserts that TDCJ-CID’s placement of video recording cameras
in the restrooms, showers, and dressing areas of the prison—as well as female
officers’ viewing of male inmates both in those areas and on the cameras—
violates his expectation of minimal privacy under the Fourth Amendment.
Garrett also contends that his equal protection rights have been violated by
the placement of the cameras in these areas because the women’s prisons are
not equipped with comparable devices. The magistrate judge dismissed both
his privacy and equal protection claims.
        We hold that the magistrate judge did not err in dismissing Garrett’s
privacy arguments for failure to state a claim. We have previously held that
prisoners have a minimal right to bodily privacy. Oliver v. Scott, 276 F.3d 736,
741 (5th Cir. 2002). But, even if a prison regulation “impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). To
determine the reasonableness of a prison restriction, we consider the four
factors outlined by the Supreme Court in Turner: (1) whether there is a “valid,
rational connection between the prison regulation and the legitimate
government interest put forward to justify it,” (2) “whether there are
alternative means of justifying that right that remain open to prison inmates,”
(3) “the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally,”
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                                   No. 13-40599
and (4) “whether the absence of ready alternatives is evidence of the
reasonableness of a prison regulation.” Turner, 482 U.S. at 89-90 (internal
quotation marks omitted).      Weighing these factors, based on a summary
judgment record, we rejected in Oliver a similar challenge on the grounds that
“constant   surveillance,   even    cross-sex   surveillance,   of   prisoners   is
constitutional because it is reasonably related to the penological interest of
maintaining security.” Oliver, 276 F.3d at 745-46. The court found that, as
here, comprehensive surveillance by all guards increases the overall security
of the prison, minimizing inmate-on-inmate violence and sexual assaults. Id.
at 746. Moreover, requiring only male guards to supervise inmates or doing
away with security cameras in the bathroom and dressing areas could require
the prison to increase staffing or reassign a large percentage of its staff, or
both, and there is no readily identifiable alternative that would impose only de
minimis expenses in terms of inmate security, staffing costs, or equal
employment opportunities. Id. We have subsequently affirmed this position.
See, e.g., Mitchell v. Quarterman, 515 F. App’x 244, 247 (5th Cir. 2012)
(unpublished), and several other circuits have likewise upheld cross-sex
surveillance, see, e.g., Johnson v. Phelani, 69 F.3d 144, 147 (7th Cir. 1995) (“If
only men can monitor showers, then female guards are less useful to the
prison; if female guards can’t perform this task, the prison must have more
guards on hand to cover for them.”); Timm v. Gunter, 917 F.2d 1093, 1101-02
(8th Cir. 1990) (explaining that constant visual surveillance by guards of both
sexes is a reasonable and necessary measure to promote inmate security);
Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (holding that female
correctional officers’ presence around naked prisoners did not violate their
privacy rights). Garrett makes no privacy-specific argument on appeal beyond
his contention that “the placement of recording cameras in the restroom,
shower, and dressing quarters in men’s prisons only [is] a gender based
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                                  No. 13-40599
discrimination, thus violating equal protection to privacy” and “4th
Amendment reasonable expectation of privacy.” In light of Oliver, Garrett’s
complaint, and his Spears hearing testimony, we affirm the magistrate judge’s
finding that his conclusional allegation of a privacy claim is indisputably
meritless.
        Neither did the magistrate judge err in rejecting Garrett’s equal
protection argument for failure to state a claim. His complaint and his Spears
hearing testimony prove this claim also to be indisputably meritless and
foreclosed by our precedent. We held in Yates v. Halder, 217 F.3d 332, 334 (5th
Cir. 2000), and reiterated in Oliver, 276 F.3d at 746, that, to prove an equal
protection violation on the basis of sex, male prisoners must demonstrate that
male and female prisoners are similarly situated. Courts should consider “the
number of inmates housed in each facility, their average length of stay, their
security levels, and the incidence of violence and victimhood” to determine
whether the prisons identified—and hence their surveillance policies—are
comparable. Id. at 335. Garrett failed to identify a particular women’s facility
or reference anything else to support an allegation that no women’s facilities
had video surveillance cameras; neither did he allege that male and female
prisoners were similarly situated. Vague and conclusional allegations that a
prisoner’s equal protection rights have been violated are insufficient to raise
an equal protection claim. Pedraza v. Meyer, 919 F.2d 317, 318 n.1 (5th Cir.
1990).
        Accordingly, we affirm the magistrate judge’s dismissal of Garrett’s
privacy and equal protection claims for failure to state a claim.
   C.     Americans with Disabilities Act (ADA)
        Garrett alleges that he suffers from vertigo and gets dizzy spells that
cause him to fall suddenly and repeatedly without warning. He was prescribed
narcotics for the vertigo, but prefers not to take them and instead rely on
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                                   No. 13-40599
techniques he learned from the John Healy Hospital to help him with dizzy
spells; he maintains the medication leaves him feeling drugged, makes it
dangerous for him to work, and causes him to be subjected to random drug
testing because prison staff thought he was “high.” The McConnell Unit was
aware of Garrett’s vertigo and made accommodations by assigning him to a
bottom bunk, allowing him to use medical showers with safety bars or
handrails while housed in the cell, and giving him a safer job in the garment
factory. Garrett alleges, however, that since his May 2012 transfer from the
cell to the dorm, he has not had access to medical showers, and there are no
safety bars in the toilet areas or showers available to him. Consequently,
Garrett alleges, he has fallen and bumped his head against the wall in the
toilet area and almost fallen in the showers because of spinning sensations.
After requesting that prison officials install rails in the toilet areas to no avail,
Garrett filed this suit, seeking an injunction to require that safety handrails
be installed in the restroom and showers and contending that the prison should
be fined under the ADA.
      The magistrate judge concluded that Garrett failed to state a cognizable
ADA claim on three grounds: (1) accessibility provisions of the ADA only apply
to the construction of public buildings and alterations that occurred after 1992,
28 C.F.R. § 35.151(a)-(c); (2) to succeed on his accessibility claim, he would have
to show that the absence of handrails in the bathrooms and showers amount
to “cruel and unusual punishment,” and he cannot make that showing, partly
because the presence of the bars would not significantly assist him; and (3) he
“testified that he is able to use the handicap showers and restrooms upon
request,” so reasonable accommodations were made.
      Title II of the ADA provides that individuals with disabilities may not
“‘be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.’”          Frame v. City of
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Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (quoting 42 U.S.C. § 12132); see
also 28 C.F.R. § 35.149. Title II imposes an obligation on public entities to
make reasonable accommodations or modifications for disabled persons,
including prisoners. See Tennessee v. Lane, 541 U.S. 509, 531 (2004); Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 213 (1998). To state a claim under Title II, a
plaintiff must allege “(1) that he has a qualifying disability; (2) that he is being
denied the benefits of services, programs, or activities for which the public
entity is responsible, or is otherwise discriminated against by the public entity;
and (3) that such discrimination is by reason of his disability.” Hale v. King,
642 F.3d 492, 499 (5th Cir. 2011).
      A public entity’s failure “to take reasonable measures to remove
architectural and other barriers to accessibility,” i.e. satisfy the “reasonable
modification    requirement,”    may     constitute   denial     of   services   and
discrimination sufficient to satisfy the second two prongs of the Title II inquiry.
Lane, 541 U.S. at 531. This “reasonable modification requirement can be
satisfied in a number of ways.” Id. at 532. For facilities built or altered after
1992, the regulations require compliance with specific architectural
accessibility standards. Id. (citing 28 C.F.R. § 35.151). For older facilities, “a
public entity may comply with Title II by adopting a variety of less costly
measures, including relocating services to alternative, accessible sites and
assigning aides to assist persons with disabilities in accessing services.” Id.
(citing 28 C.F.R. § 35.150(b)(1)). “Only if these measures are ineffective in
achieving accessibility is the public entity required to make reasonable
structural changes.” Id.
      As required under the first prong of the Title II inquiry, Garrett
maintains that he has been diagnosed with the qualifying disability of vertigo.
Garrett’s diagnosis with vertigo is not in question: he has received treatment
for over ten years, including narcotics and visualization techniques to ease
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                                   No. 13-40599
dizzy spells, and the prison has made accommodations for his condition.
However, as the magistrate judge noted, “the fact that the plaintiff suffers from
vertigo does not mean that he is disabled per se under the ADA.” Though the
Appendix to the regulation identifies a few diseases that constitute disabilities
per se (vertigo is not among them), ADA regulations generally require an
individualized determination of disability based on whether the condition
“substantially limits an individual in a major life activity.” 29 C.F.R. Pt.
16320(j), App. “‘Substantially limits’ shall be construed broadly in favor of
expansive coverage” and “is not meant to be a demanding standard.” 29 C.F.R.
Pt. 16320(j)(1)(i). “The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the ameliorative
effects of mitigating measures.” 29 C.F.R. Pt. 16320(j)(1)(vi). Given that
Garrett experiences frequent dizzy spells that have caused injuries and limited
his work options, we will not disturb the magistrate judge’s assumption that
he satisfies the first prong of the Title II inquiry.
      Garrett fails to satisfy the second and third prongs of the Title II inquiry,
however, as he did not plausibly allege that the prison failed to make
reasonable accommodations for his vertigo. Contrary to the magistrate judge’s
holding, even if the facility was built or altered prior to 1992, 4 the facility could
still be required to undertake less costly measures, e.g. installation of
handrails, to accommodate Garrett’s disability, see 28 C.F.R. § 35.150(b)(1),
even if failure to make these accommodations does not constitute “cruel and
unusual punishment.” The record establishes that the less costly measures
undertaken by the facility constitute reasonable accommodations to enable
Garrett’s safe use of the bathroom and shower facilities. Garrett could request



      4The McConnell Unit went “functional” in September 1992. Therefore, construction
presumably began before January 1992.
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                                       No. 13-40599
to transfer from the dorm where he is presently held in order to avail himself
of the medical showers, or could begin taking the vertigo medication prescribed
to him.     Even if Garrett chose not to take advantage of these reasonable
accommodations, he does not show that the installation of handrails in the
showers and bathrooms would assist him.
        Accordingly, we find that the magistrate judge did not err in dismissing
Garrett’s ADA claim for failure to state a claim.
   D.       Statute of Limitations
        The magistrate judge dismissed Garrett’s claims arising before March
13, 2011, as time barred (as well as failing to state a claim), but did not identify
specific claims or portions thereof that survived the time-bar dismissal.
Garrett challenges the magistrate judge’s time-bar ruling.                  We affirm the
magistrate judge’s dismissal of Garrett’s privacy, equal protection, and ADA
claims for failure to state a claim. Hence we only address whether the statute
of limitations bars Garrett’s Eighth Amendment claims.
        “Dismissal is appropriate if it is clear from the face of the complaint that
the claims asserted are barred by the applicable statute of limitations.” Harris,
198 F.3d at 156. There is no statute of limitations specified in § 1983. The
residual federal limitations of four years, 28 U.S.C. § 1658, applies only to
statutes enacted or expanded since 1990. Jones v. R.R. Donnelly & Sons, 541
U.S. 369, 382 (2004). We have previously concluded that § 1983 is not such a
statute. Walker v. Epps, 550 F.3d 407, 411 (5th Cir. 2008) (citing Wilson v.
Garcia, 471 U.S. 261, 272 (1985)). For claims not governed by the residual
clause, we must borrow the general personal injury limitations period of the
forum state. 5 Owens v. Okure, 488 U.S. 235, 249-50 (1989). Texas has a two-


        5The Supreme Court has held that statutes of limitations do not apply to suits seeking
solely equitable relief. Holmberg v. Armbrecht, 327 U.S. 392, 296 (1946). However, in a
subsequent decision, the Court clarified that statutes of limitations do apply to § 1983 suits
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                                        No. 13-40599
year limitations period for personal injury actions. TEX. CIV. PRAC. & REM.
CODE ANN. § 16.003. The date on which a federal cause of action accrues is a
matter of federal law. Frame, 657 F.3d at 238. “[A]ccrual occurs the moment
the plaintiff becomes aware that he has suffered an injury or has sufficient
information to know that he has been injured.” Id. (quoting Walker, 550 F.3d
at 414).
       Garrett testified that he had moved from a cell to a dorm in the
McConnell Unit around May 2012, less than a year prior to the filing of his
complaint. To the extent that Garrett’s claims are construed as challenges to
the conditions of his confinement after he moved into the dorm, therefore, the
claims are not facially time barred. Garrett testified that that the 24-hour
operational schedule, which caused his sleep deprivation, was unique to the
dorm at the McConnell Unit, and he had not faced such problems when housed
in the cell between 2008 and 2012.                 Accordingly, we conclude that the
magistrate judge erred to the extent that Garrett’s Eighth Amendment claims
were dismissed as time barred.
                                      CONCLUSION
       For the above reasons, we AFFIRM the district court’s dismissal of
Garrett’s privacy, equal protection, and ADA claims, REVERSE that court’s
dismissal of his Eighth Amendment claims for failure to state a claim under
28 C.F.R. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and REMAND for further
proceedings consistent with this opinion.




seeking either injunctive relief or damages. Wilson v. Garcia, 471 U.S. at 275; see also
Walker, 550 F.3d at 412 (“It is plain, however, that the Court, in directing courts in each state
to select ‘the one most appropriate statute of limitations for all § 1983 claims,’ made no
exception in Wilson for § 1983 actions that seek only equitable relief.”).
                                              15
