Beshere v. Peralta

Decision Date10 May 2016
Docket NumberCIVIL NO. SA-15-CA-1119-RP
PartiesTERRY WAYNE BESHERE, TDCJ No. 1693789, Plaintiff, v. J. MANUEL PERALTA, Senior Warden, FNU GARCIA, Assistant Warden, FNU RAMIREZ, Assistant Warden, FNU CIRON, Major, SYLVIA CORTEZ, Chief of Classification, FNU GAINES, Administrative Director, and FNU CHAPPA, Assistant Director, Defendants.
CourtU.S. District Court — Western District of Texas
MEMORANDUM OPINION AND ORDER

The matters before the Court are (1) Defendants Peralta and Cortez's Motion to Dismiss, filed April 21, 2016 (ECF no. 18), (2) Plaintiff's conclusory claims against the remaining defendants set forth in Plaintiff's Amended Complaint, filed March 7, 2016 (ECF no. 13), and (3) the status of this case. For the reasons set forth below, Defendants Peralta and Cortez's Motion to Dismiss will be granted and Plaintiff's claims against the remaining defendants be dismissed as frivolous.

I. Background and Procedural History

Plaintiff Terry Wayne Beshere, currently at inmate at the Texas Department of Criminal Justice's ("TDCJ's") John B. Connally Unit in Kenedy, Texas, filed this action pursuant to 42 U.S.C. § 1983 on December 9, 2015 (ECF no. 1), naming as defendants the Senior Warden ofthe Connally Unit and the Chief of Classification at the same facility, alleging (1) the defendants had failed to furnish Plaintiff with adequate food because inmates at the Connally Unit had been fed only sack lunches for substantial periods of time and (2) the defendants had denied Plaintiff a job assignment in retaliation for Plaintiff filing grievances against Connally Unit personnel. Defendants Peralta and Cortez filed their original Motion to Dismiss on January 28, 2016 (ECF no. 8), arguing in pertinent part that (1) Plaintiff failed to allege specific facts showing any personal involvement by Warden Peralta in the planning, menus, or the provision of food to Connally Unit inmates, (2) Plaintiff's preference for hot meals over sack lunches did not rise to the level of a constitutional issue, i.e., did not amount to the denial of a minimal civilized measure of life's necessities, and (3) Plaintiff possessed no constitutionally protected right to a job assignment during his incarceration.

In an apparent effort to respond to the defendants' Motion to Dismiss, on February 3, 2016 (ECF no. 9), Plaintiff filed a pleading which this Court liberally construed as a supplemental complaint. On February 10, 2016 (ECF no. 10), Plaintiff filed a response to Defendants' original Motion to Dismiss in which he argued (1) Warden Peralta was ultimately responsible as a supervisor for the alleged actions of his subordinates in failing to furnish Plaintiff and other Connally Unit inmates with hot meals, (2) Defendant Cortez retaliated in October 2014, against Plaintiff for his filing of a grievance against a friend of that defendant by taking away a janitorial position Plaintiff held at the Connally Unit prior to that time, transferring Plaintiff to another building at the Connally Unit, and thereafter refusing to give Plaintiff a new job assignment, and (3) the denial of a new job assignment to Plaintiff amounted to a denial of rehabilitation to which Plaintiff is entitled under "the Rehabilitation Act."

On February 24, 2015 (ECF no. 11), Plaintiff requested permission to amend his complaint. On February 25, 2015, this Court granted that request. On March 7, 2016 (ECF no. 13), Plaintiff filed his amended complaint, adding five additional TDCJ or Connally Unit officials as defendants and alleging those defendants had participated in unspecified ways in the alleged denial of adequate food and a new job assignment to Plaintiff.

On April 21, 2016 (ECF no. 18), Defendants Peralta and Cortez filed their second motion to dismiss (1) once again arguing Plaintiff failed to allege any facts showing they had been personally involved in any denial to Plaintiff of "the minimal civilized measure of life's necessities," (2) asserting the defense of qualified immunity, and (3) arguing Plaintiff failed to allege any facts showing either of them had displayed deliberate indifference to Plaintiff's health or safety. To date, Plaintiff has failed to respond in any manner to their latest motion to dismiss.

II. Section 1983 Generally

Title 42 U.S.C. § 1983 does not create any substantive rights, but instead was designed to provide a remedy for violations of federal statutory and constitutional rights. Sepulvado v. Jindal, 729 F.3d 413, 420 n.17 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014); Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008); Hernandez ex rel. Hernandez v. Texas Department of Protective and Regulatory Services, 380 F.3d 872, 879-80 (5th Cir. 2004); Flores v. City of Palacios, 381 F.3d 391, 404 (5th Cir. 2004); LaFleur v. Texas Department of Health, 126 F.3d 758, 759 (5th Cir. 1997); Jackson v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir. 1996), cert. denied, 519 U.S. 818 (1996).

There are two essential elements to a § 1983 action: (1) the conduct in question must be committed by a person acting under color of state law; and (2) the conduct must deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Whitley v.Hanna, 726 F.3d 631, 638 (5th Cir. 2013), cert. denied, 134 S. Ct. 1935 (2014); Romano v. Greenstein, 721 F.3d 373, 377 (5th Cir. 2013); Wyatt v. Fletcher, 718 F.3d 496, 517 (5th Cir. 2013); Doe ex rel. Magee v. Covington County School District, 675 F.3d 849, 854 (5th Cir. 2012); D.A. ex rel. Latasha A. v. Houston Independent School District, 629 F.3d 450, 456 (5th Cir. 2010); Doe v. Dallas I.S.D., 153 F.3d 211, 215 (5th Cir. 1998); Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997), cert. denied, 525 U.S. 822 (1998); Leffall v. Dallas I.S.D., 28 F.3d 521, 525 (5th Cir. 1994); Resident Council of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1050 (5th Cir. 1993), cert. denied, 510 U.S. 820 (1993); Martin v. Thomas, 973 F.2d 449, 452-53 (5th Cir. 1992); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984). See also Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (holding a constitutional claim of discrimination requires proof of purposeful discrimination; disparate impact is insufficient; and the absence of discriminatory purpose precludes a constitutional violation).

In order to state a cause of action under § 1983, a plaintiff must allege facts establishing that an otherwise private defendant acted "under color" of state law. Rundus v. City of Dallas, Texas, 634 F.3d 309, 312 (5th Cir.) (to show there is state action by an otherwise private entity, the plaintiff must show either (1) the private entity's action represents an official-city policy or custom or (2) the defendant's action in enacting and enforcing the restriction is "fairly attributable" to the city), cert. denied, 132 S. Ct. 107 (2011); Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001) (holding no § 1983 liability could exist with regard to private defendants absent allegations the non-governmental defendants acted in concert with a governmental entity to deprive the plaintiff of his rights); Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991), cert. denied, 504 U.S. 965 (1992); Auster Oil & Gas, Inc. v. Stream, 764F.2d 381, 386-88 (5th Cir. 1985), cert. denied, 488 U.S. 848 (1988). Stated somewhat differently, a claim for relief under 42 U.S.C. § 1983 must contain two elements: (1) that plaintiff has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendant acted under color of state law. Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010), cert. denied, 131 S. Ct. 2995 (2011); Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010) (a person acts under color of state law if he misuses "power" possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law); Randolph v. Cervantes, 130 F.3d at 730; Doe v. Rains County Independent School District, 66 F.3d 1402, 1406 (5th Cir. 1995); Leffall v. Dallas I.S.D., 28 F.3d at 525; Resident Council of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980 F.2d at 1050; Martin v. Thomas, 973 F.2d at 552-53; Fyfe v. Curlee, 902 F.2d 401, 403 (5th Cir. 1990), cert. denied, 498 U.S. 940 (1990); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989).

Whether an officer is acting under color of state law does not depend on his on- or off-duty status at the time of the alleged violation. Rather, the court must consider: (1) whether the officer "misuse[d] or abuse[d] his official power," and (2) if "there is a nexus between the victim, the improper conduct, and [the officer's] performance of official duties." If an officer pursues personal objectives without using his official power as a means to achieve his private aim, he has not acted under color of state law.

Bustos v. Martini Club Inc., 599 F.3d at 464-65 (Footnotes omitted).

Thus, not all actions of a state official are necessarily taken under color of state law; where the actor's motivation was personal and the actor did not invoke or use any official authority, there is an absence of a showing of action "under color of state law." Bryant v. Military Department of Mississippi, 597 F.3d 678, 686-87 (5th Cir.), cert. denied, 562 U.S. 893 (2010).

Insofar as Plaintiff complains that the defendants failed to comply with a variety of state statutes and code provisions, including the poorly identified "Rehabilitation Act," that claim is non sequitur. Absent some showing that the defendants violated Plaintiff's federal constitutional rights, complaints about the violation of state statutes or state agency regulations are insufficient as a matter of law to support a claim for relief under § 1983. See Jones v. Lowndes County, Mississippi, 678 F.3d 344, 352 (5th Cir. 2012) ("[A]n...

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