Romero v. Owens

• Decision Date: 12 April 2016
• Docket Number: CIVIL NO. SA-15-CA-868-FB (HJB)
• Parties: ALFREDO ROMERO, TDCJ No. 1054039, Plaintiff, v. RISSIE OWENS, FRED SOLIS, ANTHONY RAMIREZ, and CHUCK SPEIER, Defendants.
• Court: U.S. District Court — Western District of Texas

ALFREDO ROMERO, TDCJ No. 1054039, Plaintiff, v. RISSIE OWENS, FRED SOLIS, ANTHONY RAMIREZ, andCHUCK SPEIER, Defendants.

CIVIL NO. SA-15-CA-868-FB (HJB)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

April 12, 2016

MEMORANDUM OPINION AND ORDER

The matters before the Court are (1) plaintiff's motion for appointment of counsel, filed January 27, 2016 (ECF no. 13), (2) plaintiff's motion for discovery, filed January 27, 2016 (ECF no. 14), (3) plaintiff's motion for continuance, filed January 27, 2016 (ECF no. 15), and (4) defendants' motion to dismiss, filed December 7, 2015 (ECF no. 9). For the reasons discussed below, all of plaintiff's motions will be denied and defendants' motion will be granted.

Background

Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on October 5, 2015 (ECF nos. 1 & 2), naming as defendants four supervisory state parole officials. He alleges his constitutional rights to equal protection of the laws and to freedom from cruel and unusual punishment have been violated by (1) the denial of his requests for parole on multiple occasions and (2) his exclusion from eligibility for participation in TDCJ educational programs - both because he has an ICE detainer lodged against him. In his memorandum in support of his complaint, plaintiff requests injunctive relief as well as monetary damages from each defendant (ECF no. 2, at pp. 11-12)..

Defendants' motion to dismiss argues (1) plaintiff possesses no constitutional interest in, or a state statutory right to, release on parole; (2) state statutes which exclude plaintiff from eligibility for release on parole do not violate equal protection principles or the eighth amendment's prohibition on cruel and unusual punishment; (3) the named defendants have no legal authority over the Windham School, which operates educational programs within facilities of the Texas Department of Criminal Justice's Institutional Division; (4) plaintiff has failed to allege any specific facts showing any of the named defendants were personally involved in, or possess personal knowledge of, any of the matters about which plaintiff complains in his pleadings in this lawsuit; and (5) defendants are entitled to relief from plaintiff's requests for monetary damages under the Eleventh Amendment, the doctrine of qualified immunity, and well-settled principle that supervisory official may not be held personally liable for damages under § 1983 (ECF no. 9).

Standard of Review Under Rule 12(b)(6), FED.R.CIV.P.

The pleading standard set forth in Rule 8(a)(2), FED.R.CIV.P., (which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief") does not require detailed factual allegations but it does demand more than a conclusory allegation from the plaintiff that he or she was unlawfully harmed by the defendant. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. at 678; Central States, Southeast and Southwest Areas Health and Welfare Fund ex rel. Bunte v. Health Special Risk, Inc., 756 F.3d 356, 360 (5thCir. 2014). "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. at 678; Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013), cert. denied, 134 S. Ct. 1935 (2014). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; see also Central States, Southeast and Southwest Areas Health and Welfare Fund ex rel. Bunte v. Health Special Risk, Inc., 756 F.3d at 360. A pleading which offers "labels and conclusions" or a "formulaic recitation of the elements of a cause of action" will not suffice. Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. Nor does a complaint suffice if it renders "naked assertions" devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly, 550 U.S. at 557.

Section 1983 Generally

Title 42 U.S.C. Section 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). There are two essential elements to a Section 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); see also Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (holding that constitutional claim of discrimination requires proof of purposeful discrimination; disparate impact is insufficient; and absence of discriminatory purpose precludes constitutional violation).

In order to state a cause of action under Section 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. 2011) (to show there is state action by an otherwise private entity, plaintiff must show either (1) private entity's action represents an official city policy or custom or (2) defendant's action in enacting and enforcing 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 that non-governmental defendants acted in concert with governmental entity to deprive plaintiff of his or her rights). 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 or she misuses "power" possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law). 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. 2010), cert. denied, 562 U.S. 893 (2010).

Plaintiff alleges the defendants failed to comply with a variety of state statutes and code provisions. However, 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 Section 1983. See Jones v. Lowndes County, Mississippi, 678 F.3d 344, 352 (5th Cir. 2012) ("[A]n alleged violation of a state statute does not give rise to a corresponding § 1983 violation, unless the right encompassed in the state statute is guaranteed under the United States Constitution."); Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) (holding alleged violations of TDCJ procedural rules regarding notice and right to call witnesses and present documentary evidence at disciplinary hearing did not present arguable basis to support due process claim); Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (holding prison official's failure to follow prison's own policies, procedures, and regulations does not constitute violation of due process if constitutional minima are nevertheless met); Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (holding a mere failure to accord procedural protection called for by state law or regulation does not of itself amount to a denial of due process), cert. denied, 516 U.S. 860 (1995); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) (holding that state's failure to follow its own procedural regulations does not constitute violation of due process "if constitutional minima are nevertheless met"); Murray v. Mississippi Department of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990) (holding alleged violations of state statute did not give rise to federal constitutional claims), cert. denied, 498 U.S. 1050 (1991); Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) ("A state's failure to follow its own procedural regulations does not establish aviolation of due process, because 'constitutional minima may nevertheless have been met.'"); Brown v. Texas A&M University, 804 F.2d 327, 335 (5th Cir. 1986) (holding state agency's violations of its own internal regulations did not establish due process violation or otherwise give rise to constitutional claim). Therefore, insofar as plaintiff alleges merely that the defendants failed to comply with state jail rules and regulations and state statutes, those allegations, standing alone, do not provide a basis for recovery or for a...