Pleading a “Substantial Risk of Serious Harm”: The Fifth Circuit’s Clarification of Prisoner Failure‑to‑Protect Claims in Hicks v. Ashworth

I. Introduction

In Hicks v. Ashworth, No. 24‑20331 (5th Cir. Nov. 25, 2025) (per curiam) (unpublished), the United States Court of Appeals for the Fifth Circuit affirmed the dismissal with prejudice of a Texas prisoner’s civil rights action under 42 U.S.C. § 1983. The case centers on an Eighth Amendment “failure‑to‑protect” claim against Warden Bobby Rigsby, alleging deliberate indifference to a serious threat from another inmate.

While the opinion is not designated for publication under Fifth Circuit Rule 47.5, it is significant in two respects:

• It clarifies what factual detail a prisoner must plead to show a “substantial risk of serious harm” under Farmer v. Brennan, 511 U.S. 825 (1994), particularly emphasizing allegations about the threatener’s access to the plaintiff.
• It reinforces and develops Fifth Circuit practice on how courts should treat new factual allegations made by pro se prisoners in responses to motions to dismiss—construing them as motions to amend, while still permitting dismissal with prejudice after adequate opportunities to amend.

The decision thus lies at the intersection of Eighth Amendment substantive law, modern pleading standards under Twombly and Iqbal, and the procedural treatment of pro se prisoner litigation.

II. Factual and Procedural Background

A. Parties

• Plaintiff–Appellant: Blaze Hicks, a Texas state prisoner, proceeding pro se.
• Defendants–Appellees: Warden Bobby Rigsby, Warden Caleb Brumley (mis‑spelled “Bromley” in filings), Major Lisa Ashworth, and Security Officer Cynthia Picazo.

Hicks brought a § 1983 civil rights action alleging, among other matters, that various prison officials failed to protect him from inmate violence.

B. Initial Complaint and Misjoinder Issues

Hicks’s original complaint, filed in the Southern District of Texas, asserted multiple claims against multiple defendants arising from different events. The district court:

• Held that the complaint improperly joined “multiple lawsuits against multiple defendants into one action,” violating Federal Rules of Civil Procedure 18 (joinder of claims) and 20 (permissive joinder of parties).
• Struck the complaint and directed Hicks to file an amended complaint that complied with the Federal Rules.

Hicks then attempted to add two additional parties via a letter. The district court construed the letter as a motion to amend and denied it, explaining that the new claims arose from a separate incident and could not be joined. The court also imposed filing controls:

• Hicks had to obtain court approval before filing any amended complaint.
• He had to attach a complete copy of any proposed amended complaint to a motion to amend.
• Any filing that added new claims or facts without authorization would be stricken and treated as having no effect.

C. Narrowing to Failure‑to‑Protect Claims

On July 27, 2023, the court received from Hicks a motion seeking leave to amend to cure “deficiencies” in his complaint. In that filing, he:

• Narrowed his case to failure‑to‑protect claims against Rigsby, Brumley, Ashworth, and Picazo.
• Alleged that his request for a unit transfer was denied, leaving him exposed to danger and resulting in serious injuries after he was struck in the head by a fan motor thrown by inmate Kevin Powell.

On August 1, the district court:

• Construed this motion as Hicks’s amended complaint, but
• Received, that same day, Hicks’s motion to supplement containing additional factual allegations.

With allegations scattered across multiple filings, the court, on August 10, directed Hicks to file a single, complete amended complaint on the standard § 1983 prisoner civil rights form, consolidating all failure‑to‑protect allegations against the four remaining defendants.

D. Later Motions and Final Amended Complaint

Four days after the August 10 order, Hicks submitted another motion to amend, asserting additional claims against Ashworth based on different acts and dates. The district court:

• Denied the motion because those Ashworth claims arose from different events than the core failure‑to‑protect claim.
• Again instructed Hicks to file a complete amended complaint containing all factual allegations supporting his failure‑to‑protect claims against Rigsby, Brumley, Ashworth, and Picazo.

Hicks then filed what became the operative amended complaint on the prisoner form. As to Warden Rigsby, Hicks alleged only:

• He told Rigsby, at a Unit Classification Committee (UCC) meeting, that his “life was in danger.”
• Rigsby allegedly laughed and did not transfer him to a safer unit.
• Subsequently, inmate Kevin Powell hit Hicks in the head with a fan motor, causing serious injury.

No other details—such as the identity of the threatener, their housing location, prior incidents, or the content of threats—appeared in this operative complaint.

E. Screening, Motion to Dismiss, and Expanded Allegations

After screening under 28 U.S.C. § 1915A, the district court ordered the defendants to answer the amended complaint. They moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing in particular that:

• Hicks’s allegations against Rigsby failed to state a claim of deliberate indifference because they did not allege facts from which Rigsby could infer a substantial risk of serious harm.
• Hicks merely asserted in conclusory fashion that his life was in danger and that Rigsby failed to transfer him.

In his response brief, Hicks, for the first time, added substantial factual detail:

• He had previously been involved in a fight and then placed in protective custody.
• In a “victim statement,” he wrote that his life was in danger because inmate John Morales was trying to have him stabbed.
• At the UCC meeting, he told Rigsby exactly what he had written: that Morales was trying to have him killed.
• He claimed to have received threatening “kites” (prison notes) from Morales, which he gave to Lieutenant Blanson; Blanson allegedly relayed these to Rigsby.
• Despite this, Rigsby released Hicks back to general population rather than transferring him, and Hicks was assaulted three weeks later in the dayroom by Kevin Powell with a fan motor.

At the end of his response, Hicks added:

“[He] asserts he raised a deliberate indifference in his complaint. If for some reason not, [Hicks] would request to raise in a motion to leave for amend.”

The defendants replied that the district court could not consider these new factual allegations, which appeared for the first time in a brief rather than in a pleaded complaint.

F. District Court Ruling

The district court dismissed the case with prejudice, holding that Hicks failed to state a failure‑to‑protect claim against Rigsby:

• Based solely on the complaint: Hicks’s bare assertion that his life was in danger, without factual support, was insufficient to show Rigsby knew facts suggesting a substantial risk of serious harm.
• Even if the new facts from the response were considered:
  • The district court thought they “may be sufficient” to show that Rigsby knew facts from which he could infer a substantial risk from Morales.
  • But Hicks still did not allege that Morales was in general population or otherwise had access to Hicks.
  • The actual assault came from a different inmate (Powell) and in a different manner (fan motor, not stabbing) than the threat.
  • Therefore, Rigsby’s response to the Morales threat was not shown to be unreasonable.

The district court also concluded that dismissal with prejudice was appropriate, given the multiple opportunities Hicks had been afforded to correct and consolidate his pleadings.

III. Summary of the Fifth Circuit’s Opinion

On appeal, Hicks (liberally construed) raised two core arguments:

1. His failure‑to‑protect claim against Rigsby should have survived a Rule 12(b)(6) motion to dismiss.
2. Even if it failed under Rule 12(b)(6), the district court erred by dismissing with prejudice without allowing further amendment.

The Fifth Circuit:

• Affirmed the 12(b)(6) dismissal of the failure‑to‑protect claim against Rigsby, but for a different doctrinal reason than the district court.
  • The panel held that even taking the response‑brief allegations into account, Hicks failed to plausibly allege that he faced a “substantial risk of serious harm” (the objective Farmer prong), because he pleaded no facts tying Morales to the general population or showing how Morales had access to him.
• Clarified the treatment of pro se amendments:
  • Ordinarily, a bare request to amend made in a brief is not a proper Rule 15 motion.
  • However, because Hicks was a pro se inmate, the district court should have construed his request in the response brief as a motion to amend to add the new facts.
  • The district court’s silence on that request constituted an abuse of discretion, but the error was harmless because the court in fact did analyze the new allegations and they were insufficient as a matter of law.
  • The Court of Appeals proceeded as though the motion to amend had been granted and analyzed all allegations de novo.
• Affirmed dismissal with prejudice:
  • Applying the “best case” rule for pro se litigants, the panel concluded that Hicks had multiple meaningful opportunities to present all relevant facts and still failed to allege a viable claim.
  • Accordingly, it was not an abuse of discretion for the district court to dismiss with prejudice.

IV. Detailed Analysis

A. Precedents and Doctrinal Context

1. Pleading Standards and Pro Se Leniency

The court reiterated the standard Rule 12(b)(6) framework:

• A complaint must state a claim that is “plausible on its face,” meaning the facts alleged allow a reasonable inference of liability. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
• Courts accept factual allegations as true but disregard bare legal conclusions or conclusory assertions. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
• Pro se complaints are construed liberally and “held to less stringent standards than formal pleadings drafted by lawyers,” but this does not excuse conclusory pleading. Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981); S. Christian Leadership Conf. v. La. Supreme Court, 252 F.3d 781, 786 (5th Cir. 2001).

On appeal, pro se briefs are also read liberally, but issues must still be adequately briefed to be preserved. Owens v. Sec’y of Army, 354 F. App’x 156, 158 (5th Cir. 2009); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

The panel reviews dismissals de novo. McKay v. LaCroix, 117 F.4th 741, 746 (5th Cir. 2024).

2. Eighth Amendment Failure‑to‑Protect: Farmer and Its Progeny

The constitutional core of the case is the Eighth Amendment duty to protect inmates from violence by other prisoners, as articulated in Farmer v. Brennan, 511 U.S. 825 (1994), and related authority:

• Prison officials must take reasonable measures to protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. at 833.
• Not every injury inflicted by one prisoner on another is a constitutional violation; prisons are inherently dangerous. Id. at 834; see also Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003).

A failure‑to‑protect claim has two key components:

1. Objective component – substantial risk of serious harm:
   • The inmate must show that he was exposed to a risk of harm that is “sufficiently serious.” Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 35 (1993).
2. Subjective component – deliberate indifference:
   • The official must be aware that the inmate faces a substantial risk of serious harm and must disregard that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847; Davis v. Lumpkin, 35 F.4th 958, 963 (5th Cir. 2022).
   • This is an “extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
   • The official must both (a) know the underlying facts from which a substantial risk could be inferred, and (b) actually draw that inference. Farmer, 511 U.S. at 837.

3. Amendment of Pleadings in Pro Se Litigation

On amendment, the court drew on several authorities:

• Generally, a mere request to amend buried in an opposition brief, without specifying the grounds or attaching a proposed amended complaint, is not a Rule 15(a) motion. Law v. Ocwen Loan Servicing, L.L.C., 587 F. App’x 790, 796 (5th Cir. 2014); United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003).
• However, where a litigant is pro se, Fifth Circuit cases encourage district courts to treat filings liberally as motions to amend:
  • Lozano v. Schubert, 41 F.4th 485, 490 (5th Cir. 2022): the court faulted a district court for failing to construe a pro se reply containing new allegations as a proposed amended complaint.
  • Ogbebor v. Hardy, No. 24‑30403, 2025 WL 586822, at *3 (5th Cir. Feb. 24, 2025): courts may construe allegations first raised in pro se objections to a magistrate judge’s report as a motion to amend the complaint.
  • Hernandez v. W. Tex. Treasures Est. Sales, L.L.C., 79 F.4th 464, 468‑69 (5th Cir. 2023): a district court’s silence on a Rule 15 motion can constitute an abuse of discretion.

4. Dismissal with Prejudice and the “Best Case” Rule

Whether a 12(b)(6) dismissal should be with or without prejudice is reviewed for abuse of discretion. Crosby v. Hariel, 673 F. App’x 397, 400 (5th Cir. 2016); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 215 n.34 (5th Cir. 2009).

In the pro se context, the Fifth Circuit follows the “best case” principle:

• A pro se complaint generally should not be dismissed with prejudice (which precludes refiling) unless:
  • the plaintiff has had an adequate opportunity to cure pleading deficiencies, or
  • it is evident from the record that the plaintiff has already pleaded his “best case.”
• Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (per curiam), is the leading authority on this rule.

B. The Court’s Legal Reasoning

1. What Facts Could the Court Consider?

The first analytical question was whether the Fifth Circuit could consider the additional factual allegations that Hicks raised not in his operative amended complaint but in his response to the motion to dismiss.

Under standard rules:

• Pleadings, not briefing, define the facts for Rule 12(b)(6) analysis.
• A bare request for leave to amend embedded in opposition, without specifying grounds or including a proposed amendment, is usually insufficient to trigger Rule 15(a) rights. (Law, Willard).

Here, however, the panel stressed Hicks’s pro se prisoner status. Citing Lozano, Ogbebor, and Hernandez, the court held:

• The district court should have construed Hicks’s closing request (“if for some reason [deliberate indifference is not raised], [Hicks] would request to raise in a motion to leave for amend”) as a motion to amend his complaint to incorporate the new facts stated in his response.
• The district court’s silence on that implicit motion to amend was an abuse of discretion under Rule 15(a).
• Nevertheless, the error was harmless, because the district court in fact evaluated those new allegations and concluded they still did not state a claim.
• For its own de novo review, the Fifth Circuit treated the motion as if it had been granted and considered both the complaint and the response brief together.

This portion of the opinion is procedurally important: it underscores that district courts must either expressly rule on such pro se “embedded” motions to amend or, effectively, treat new allegations as part of the complaint for evaluation. At the same time, it confirms that an appellate court can cure such errors by analyzing the full record under the assumption that the amendment was allowed.

2. No Plausible Allegation of a “Substantial Risk of Serious Harm”

The heart of the decision lies in how the court applied Farmer’s two‑part test at the pleading stage.

Hicks alleged that:

• In protective custody, he wrote a victim statement stating that Morales was trying to have him stabbed.
• He told Rigsby at the UCC hearing the same thing: that Morales was trying to have him killed.
• He received threatening “kites” from Morales and handed them to Lt. Blanson, who in turn brought them to Rigsby.
• Rigsby, despite this, sent him back to general population on the “Ellis unit,” where three weeks later he was attacked by Powell with a fan motor.

The district court had reasoned that even if these new facts established knowledge of a risk from Morales, Hicks failed on the second Farmer prong (unreasonable response), largely because:

• He did not allege that Morales was in general population or had access to him there, and
• The subsequent assault did not match the reported threat (different inmate, different method).

The Fifth Circuit agreed that the claim fails, but reframed the analysis:

• The absence of allegations about Morales’s location and access did not just undermine the reasonableness analysis; it suggested that the risk was not sufficiently substantial in the first place.
• Thus, Hicks did not plausibly allege the objective prong of a deliberate indifference claim—i.e., that he faced a “substantial risk of serious harm.”

The panel employed a vivid hypothetical:

If a Texas inmate tells the warden that he fears being stabbed by an inmate in Maine, with no further facts, the risk that the Maine inmate will actually stab the Texas inmate is “quite low—possibly zero.” By contrast, if the Maine inmate is about to be transferred to the Texas inmate’s unit within a week, the practical risk of harm becomes much higher.

The point: mere existence of a threat is not enough. The complaint must contain factual allegations showing why the risk to the plaintiff is realistic and substantial in his actual housing context—e.g., physical proximity, overlapping housing, history of conflict, ability of the threatener to arrange or carry out the attack, etc.

Applying that reasoning, the court held:

• Hicks alleged only that Morales had threatened him and that Morales was “trying to have him killed.”
• He did not allege:
  • Whether Morales was in the same unit or in general population,
  • Whether Morales had physical or indirect access to Hicks in general population, or
  • Any facts showing how the threat could realistically be carried out.
• Thus, even accepting that Rigsby knew Hicks was afraid of Morales, nothing in the complaint indicated that Rigsby knew—or could infer—that Hicks was exposed to a substantial risk of harm from Morales in general population.

Quoting Farmer, the court emphasized that prison officials charged with deliberate indifference can defend themselves by showing they did not know “the underlying facts indicating a sufficiently substantial danger” and therefore were “unaware of a danger.” 511 U.S. at 844.

By classifying the defect as a failure to allege an adequate substantial risk, rather than a failure to show an unreasonable response, the panel:

• Treats the lack of detail about Morales’s access and housing as a critical failure on the objective element of the claim.
• Holds that Hicks’s allegations fall short of establishing anything more than a fear of harm unmoored from specific, pleaded facts demonstrating a realistic likelihood of attack attributable to Morales.

3. Reframing the District Court’s Rationale: Objective vs. Subjective Prongs

This reframing is doctrinally subtle but important.

• The district court assumed that the risk from Morales could be “substantial,” but that Rigsby’s response was not unreasonable because Morales’s location and the mismatch between threat and actual assault undercut the causal chain.
• The Fifth Circuit went one step back: in the absence of facts about Morales’s location or access, Hicks had not even shown a “sufficiently substantial risk” to begin with.
  • That is, the missing “access” facts are not only relevant to what measures a reasonable official might take, but foundational to whether the risk exists at a constitutionally significant level.

Practically, this means that in the Fifth Circuit, failure‑to‑protect pleadings may be dismissed not only because the response appears reasonable, but earlier in the analysis because the alleged risk itself is not made sufficiently concrete.

4. Pro Se Amendment and Harmless Error

The court then addressed the procedural misstep concerning Hicks’s embedded request to amend:

• Under ordinary standards, Hicks’s one‑line request in a brief would be insufficient to require leave to amend.
• Given his pro se status, however, the district court should have treated this as a Rule 15(a) motion to amend to include the new allegations about Morales, kites, and Lt. Blanson.
• The district court’s failure to expressly address that request was an abuse of discretion. (Hernandez).
• Nevertheless, because the district court actually did consider those allegations in its analysis—and the Court of Appeals, reviewing de novo, also considered them—the procedural error did not affect the outcome. Hence it was harmless.

This approach is consistent with Lozano and Ogbebor, which emphasize both:

• Liberal construction and consideration of additional factual materials submitted by pro se prisoners, and
• Appellate willingness to treat later filings as proposed or constructive amendments when necessary to decide a case on it merits.

5. Justifying Dismissal with Prejudice

Finally, the Fifth Circuit turned to whether the district court erred in dismissing with prejudice—effectively closing the door to further amendment.

The panel applied the “best case” framework from Hale v. King:

• Courts should not dismiss a pro se complaint with prejudice, thereby denying the opportunity to amend, unless:
  • the plaintiff has had an adequate opportunity to cure the deficiencies, or
  • the record shows the plaintiff has pleaded his best case.

Here, the record showed extensive procedural history:

• Initial complaint was struck for misjoinder, with an explanation of Rules 18 and 20.
• Hicks was allowed to file a narrowed amended complaint focused on failure‑to‑protect claims.
• He was allowed to supplement and then directed—twice—to file a single, comprehensive amended complaint incorporating all factual allegations supporting his claims.
• He then filed such an amended complaint on the prescribed prisoner form.
• Even beyond that, he effectively had a further functional amendment when the Court of Appeals and the district court treated the additional allegations in his response brief as part of his case.

In light of these opportunities, the Fifth Circuit concluded:

• Hicks had a “fair opportunity to present his best case,” yet still failed to allege facts that, even if true, would entitle him to relief.
• Accordingly, dismissal with prejudice was not an abuse of discretion.
• To the extent he argued he was allowed to amend only to cure joinder defects (not substantive ones), the record showed he in fact had multiple opportunities to substantively amend.

C. Impact and Implications

1. Practical Guidance for Prisoner‑Plaintiffs and Counsel

For prisoners bringing Eighth Amendment failure‑to‑protect claims, Hicks sends a clear message: it is not enough to allege that:

• “My life was in danger,” or
• “Inmate X threatened to kill me,” or
• “I told the warden I feared for my life.”

Instead, the complaint must contain specific factual detail showing:

• Who made the threats (names or identifying information).
• Where the threatener was housed relative to the plaintiff:
  • Same unit, same pod, same dorm?
  • Protective custody vs. general population vs. different facility?
• How the threat could realistically be carried out:
  • Direct physical access (same dayroom, yard, work detail)?
  • Indirect access (through allies or gang members housed near the plaintiff)?
• What the official knew:
  • Did the inmate give officials written threats, like “kites”?
  • Did officials review and acknowledge these documents?
  • Were there prior documented incidents or PREA complaints?

Absent such detail, courts in the Fifth Circuit may treat even repeated threats as insufficient to plead a “substantial risk of serious harm.” The fear may be subjectively genuine but not legally actionable if it is not anchored in factual allegations about the threatener’s access and the objective likelihood of harm.

2. Guidance for District Courts Handling Pro Se Amendments

On the procedural side, Hicks reinforces several key norms for district courts:

• Liberal construction of pro se filings: When a prisoner’s brief introduces new factual allegations and explicitly (or implicitly) asks to amend, courts should treat that as a motion to amend under Rule 15(a).
• Duty to address motions to amend: Silence on such a request can be an abuse of discretion (as in Hernandez), even though it may be harmless if the court substantively considers the new facts and finds them insufficient.
• Balancing leniency with docket control: Although courts must be generous in reading pro se filings, they are not required to allow endless amendments when prior opportunities have already been provided and the new allegations, even accepted as true, do not cure the fundamental legal defect.

By explicitly identifying the district court’s silence as an abuse of discretion but then declaring it harmless, the Fifth Circuit signals both a standard and a safety valve:

• District courts should avoid procedural shortcuts when pro se litigants attempt to expand their allegations.
• Yet, if all relevant facts have ultimately been considered and no claim can be stated, an appellate court may affirm without remand.

3. Defense Strategies and Institutional Implications

From the perspective of defense counsel and correctional institutions, Hicks underscores the viability of an early motion to dismiss in failure‑to‑protect cases where:

• The complaint relies on generic assertions of threats or danger without specifics.
• The plaintiff fails to connect the alleged threatener to a setting in which harm is realistically possible (no allegations of shared housing or regular contact).
• The actual injury is inflicted by a different inmate or by a different method than the described threat, without allegations that the threat signaled a broader, ongoing risk in that environment.

Institutionally, the decision:

• Reaffirms that the Eighth Amendment standard is intended to be “extremely high,” especially in inherently dangerous prison environments.
• Potentially reduces the number of failure‑to‑protect claims that survive to discovery, as many pro se complaints will be screened out at the Rule 12(b)(6) stage for lack of detail about substantial risk.

4. Place in Fifth Circuit Prisoner‑Rights Jurisprudence

Although unpublished and non‑precedential under 5th Cir. R. 47.5, Hicks fits within a broader pattern of Fifth Circuit decisions that:

• Strictly enforce Twombly/Iqbal plausibility standards in prisoner civil rights cases.
• Apply Farmer’s deliberate indifference standard rigorously, emphasizing both subjective knowledge and the objective substantiality of risk.
• Recognize procedural rights of pro se inmates to have their filings liberally construed, while still upholding dismissals with prejudice once the record shows that further amendment would be futile.

Together with cases such as Davis v. Lumpkin and Lozano v. Schubert, Hicks contributes to an increasingly well‑defined template for how failure‑to‑protect claims and pro se amendments are handled in the Fifth Circuit.

V. Clarification of Key Legal Concepts

1. “Deliberate Indifference”

“Deliberate indifference” under the Eighth Amendment is more than negligence but less than purpose to harm:

• The official must actually know of a substantial risk to inmate safety.
• The official must then consciously disregard that risk—by failing to act or by choosing a course of action that is not reasonable under the circumstances.
• Mere carelessness, misjudgment, or a failure to perceive a risk is not enough.

2. “Substantial Risk of Serious Harm”

A “substantial risk of serious harm” is an objectively significant likelihood of serious injury or death—not a speculative or remote risk. Factors that help demonstrate such a risk in prison settings include:

• Specific, credible threats of violence, especially when repeated or corroborated.
• Known history of violence or animosity between the inmates.
• Physical proximity or frequent unsupervised contacts (same cell, dorm, dayroom, yard, or work assignment).
• Documented gang issues or prior serious incidents involving the same parties.

In Hicks, the absence of allegations about physical proximity or access was decisive: without such facts, the threats—though serious in content—did not, on the pleadings, rise to the level of a constitutionally “substantial” risk.

3. Rule 12(b)(6) and “Facial Plausibility”

Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” Under Twombly and Iqbal:

• The complaint must allege enough facts to make a claim plausible, not merely conceivable or possible.
• Conclusory statements (e.g., “the defendant was deliberately indifferent”) without supporting facts do not suffice.
• The court may consider only the complaint (and incorporated documents), unless it permissibly treats later filings as amendments.

4. “Dismissal with Prejudice” vs. “Without Prejudice”

A dismissal with prejudice:

• Ends the case on the merits.
• Precludes the plaintiff from bringing the same claim again in a new action.

A dismissal without prejudice:

• Typically allows the plaintiff to refile or amend, subject to applicable limitations.

In pro se prisoner litigation, the Fifth Circuit is cautious about dismissing with prejudice unless the record convincingly shows the plaintiff has had a full and fair chance to present his “best case” and the defect is substantive, not merely technical.

5. Joinder Under Rules 18 and 20

Rules 18 and 20 regulate the joinder of claims and parties:

• Rule 18 allows a plaintiff to join multiple claims against a single defendant in one action.
• Rule 20 allows multiple defendants to be joined only if the claims arise out of the same transaction or occurrence (or series thereof) and share at least one common question of law or fact.

Hicks’s initial complaint failed this test by attempting to combine multiple, unrelated incidents against multiple defendants in one lawsuit, leading the district court to strike the complaint and require a focused amended pleading.

6. “Kites” and UCC

• “Kites”: As defined in Leyba v. Bell, 2017 WL 9288030 (E.D. Tex. Apr. 17, 2017), kites are informal notes used by prisoners to communicate, often including threats or extortion demands. In Hicks’s case, kites from Morales supposedly evidenced credible threats, but without allegations about Morales’s access and location, they did not suffice to show a substantial risk.
• UCC (Unit Classification Committee): A prison committee that reviews housing and security classifications. Hicks alleged he informed Rigsby at a UCC meeting of threats to his life and requested a transfer. The failure of that meeting to result in protective action was the focal point of his deliberate indifference theory.

VI. Conclusion

Hicks v. Ashworth provides a detailed, if unpublished, illustration of how the Fifth Circuit applies Farmer’s deliberate indifference framework and modern pleading standards to failure‑to‑protect claims by prisoners.

Substantively, the opinion underscores that:

• To survive a 12(b)(6) motion, a prisoner must plead not merely subjective fears and threats but concrete facts showing a substantial, realistic risk of harm in the actual housing context, including the threatener’s access and proximity.
• Absence of such allegations is treated as a failure on the objective “substantial risk” prong of the Eighth Amendment analysis, warranting dismissal even when the official is aware of the inmate’s fear.

Procedurally, the decision:

• Emphasizes that district courts should liberally construe pro se filings and treat embedded requests to amend as Rule 15 motions, addressing them explicitly.
• Confirms that, after a pro se prisoner has been given multiple meaningful opportunities to amend and has effectively presented his best case, dismissal with prejudice is appropriate where no plausible claim arises even from the expanded factual allegations.

In the broader legal context, Hicks continues the Fifth Circuit’s trend of tightening Eighth Amendment failure‑to‑protect pleading standards, while simultaneously shaping procedural rules governing how pro se amendments must be treated. For practitioners and prisoners alike, it offers clear guidance on both what must be alleged to demonstrate a “substantial risk of serious harm” and how those allegations must be properly presented in federal court.