Pack v. Collier

• Decision Date: 09 March 2022
• Docket Number: Civil Action 7:20-cv-00157-M-BP
• Parties: BOBBY WAYNE PACK, TDCJ No. 1211617, Plaintiff, v. BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

BOBBY WAYNE PACK, TDCJ No. 1211617, Plaintiff, v. BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice, et al., Defendants.

Civil Action No. 7:20-cv-00157-M-BP

United States District Court, N.D. Texas, Wichita Falls Division

March 9, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

HAL R RAY, JR., UNITED STATES MAGISTRATE JUDGE

Before the Court is the Motion to Dismiss filed by Defendants Bryan Collier, James Smith, Cody Miller, and Mary Ballard. ECF No 35. After reviewing the Motion and applicable legal authorities, the undersigned RECOMMENDS that Chief United States District Judge Barbara M. G. Lynn GRANT the Motion (ECF No. 35) and DISMISS Plaintiff's claims against Collier, Smith, Miller, and Ballard with prejudice. The undersigned further RECOMMENDS that Chief Judge Lynn sua sponte DISMISS Plaintiff's claims against Defendants Linda Miller and Charlotte Richey with prejudice.

I. BACKGROUND

Plaintiff Bobby Wayne Pack was convicted of capital murder and is serving a life sentence in the James V. Allred Unit of the Texas Department of Criminal Justice (“TDCJ”). See ECF No. 1; Inmate Information Details: Pack, Bobby Wayne, Tex. Dep't of Crim. Just., https://inmate.tdcj. texas.gov/InmateSearch/viewDetail.action?sid=04483304 (last visited Mar. 9, 2022); Fed.R.Evid. 201(b) (stating a court may take judicial notice of a fact not subject to reasonable dispute). He sues eleven Defendants under 42 U.S.C. § 1983. ECF No. 1 at 3-4.

Defendants include TDCJ officers who allegedly used unprovoked, excessive force against Pack by spraying him with a “chemical agent” despite his “totally submitting to restraints.” Id. at 6-7. Pack was found guilty in related TDCJ disciplinary cases for “attempted assault” of an officer and for refusing to obey escort procedures. Id. at 6-8; see also Id. at 12-15 (Offender Grievance Forms for first case); ECF No. 13 at 18-21 (same for second case). Defendant Mary Ballard represented Pack as counsel substitute in the disciplinary proceedings. See ECF No. 1 at 3-4. Defendant Cody Miller is a TDCJ officer who presided over Pack's ultimate disciplinary hearing. See Id. at 3. Pack claims Ballard and Miller committed due process violations. Id. at 3; ECF No. 13 at 7-9. He also names Defendants Bryan Collier and James Smith as TDCJ's Executive Director and Warden of the Allred Unit, respectively. See ECF No. 1 at 3. Collectively, these four Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 35.

Pack proceeds in forma pauperis under 28 U.S.C. § 1915. ECF No. 9. He has not responded to the Motion to Dismiss despite the Court's ordering him to do so. See ECF No. 45.

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

Rule 12(b)(1) permits motions to dismiss a case for lack of subject-matter jurisdiction. See also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). “Federal courts are courts of limited jurisdiction” that “possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citation omitted). A court thus “properly dismisse[s] for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). It must presume a case falls outside its limited jurisdiction, as “the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

Rule 12(b)(1) motions present either “facial” or “factual” attacks to the Court's jurisdiction. Brown v. Peterson, No. 7:03-cv-0205, 2006 WL 349805, at *4 (N.D. Tex. Feb. 3, 2006). Where, as here, the defendants challenge the pleadings alone and do not support their motion with evidence, the attack is considered facial. Lowe v. ViewPoint Bank, 972 F.Supp.2d 947, 953-54 (N.D. Tex. 2013); see also Parks v. Hinojosa, No. 4:21-cv-00111-O, 2021 WL 1720219, at *2 (N.D. Tex. Apr. 30, 2021) (explaining that Rule 12(b)(1) motions are presumptively facial attacks). The Court must “merely decide whether the allegations in the complaint, taken as true, sufficiently state a basis for subject matter jurisdiction.” Lowe, 972 F.Supp.2d at 953.

A dismissal for lack of subject matter jurisdiction “should be made without prejudice.” Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020). Further, “[w]hen 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.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)).

B. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) permits motions to dismiss a case for “failure to state a claim upon which relief can be granted.” See also Fed. R. Civ. P. 8(a)(2) (requiring the complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief”). These motions serve “to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990). Accepting “all well-pleaded facts as true” and “viewing them in the light most favorable to the plaintiff, ” the Court considers “whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.'” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The Court may consider “the complaint, its proper attachments, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'” Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008)). In the prisoner litigation context, the Court must also “look beyond the inmates' formal complaint and [] consider as amendments to the complaint those materials subsequently filed.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Those materials include any responses to a court-issued questionnaire, which “is a useful means by which the court can develop the factual basis for the prisoner's complaint.” Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976); see also Eason v. Holt, 73 F.3d 600, 602 & n.14 (5th Cir. 1996) (explaining that questionnaire responses supplement the inmate's complaint). A pro se prisoner's complaint “must be read in a liberal fashion and should not be dismissed unless it appears beyond all doubt that the prisoner could prove no set of facts under which he would be entitled to relief.” Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir. 1976).

III. ANALYSIS

Title 42 U.S.C. § 1983 creates a remedy against any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

A. The Court should grant Defendants' Motion under Rule 12(b)(1).

State officials acting in their official capacities are not “persons” under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Instead, a § 1983 claim seeking damages “against a person in his official capacity is treated as a suit against the governmental entity that employs him.” Caldwell v. Dall. Cnty. Sheriff, No. 3:04-cv-2166-L, 2006 WL 298128, at *1 (N.D. Tex. Feb. 2, 2006). If the governmental entity is an instrumentality of one of the United States, then the Eleventh Amendment's sovereign immunity doctrine deprives the Court of jurisdiction to review that claim. See id.; see also Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996) (“Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to hear a suit against a state.”). The TDCJ is one such instrumentality. Harris v. Angelina Cnty., Tex., 31 F.3d 331, 337 n.7 (5th Cir. 1994).

Pack sues TDCJ officers for compensatory and punitive damages. ECF No. 1 at 5. As Defendants observe, the Complaint does not specify the capacities in which he sues them. ECF No. 35 at 2. So Defendants raise sovereign immunity as a defense to the extent applicable. Id. at 2-3. It appears Pack seeks at least some damages from Defendants in their official capacities. ECF No. 13 at 16. He does not allege, nor is the Court aware, that any exception to the sovereign immunity doctrine applies here. See Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 473-74 (1987) (explaining waiver and abrogation exceptions). Thus, to the extent Pack seeks damages from any Defendant who is a TDCJ employee sued in his or her official capacity, the Court lacks subject-matter jurisdiction to review his claims, which should be dismissed without prejudice. See Warnock, 88 F.3d at 343.

B. The Court should grant Defendants' Motion under Rule 12(b)(6)...