Opinion
Civil Action No. 3:01-CV-2668-L
November 6, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Under the authority of 28 U.S.C. § 636(b), the District Court referred Defendant Terry Laskie's "Motion to Dismiss, filed September 3, 2002, for a recommendation for disposition of the motion. The conclusions and recommendation of the United States Magistrate Judge follow:
Background
Plaintiff, Dietrich D. Hurd, filed this civil rights action on December 18, 2001. He alleges Defendants violated his civil rights by detaining him forty-five days past the expiration of his state court sentence. Defendant Terry Laskie ("Laskie") filed a Motion to Dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), on the grounds that Plaintiffs complaint is frivolous, and pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim.
Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
The terms of 28 U.S.C. § 1915(e)(2)(B)(i) authorize a federal court to dismiss an action in which the Plaintiff is proceeding informa pauperis before service if the court determines that the action is frivolous or malicious. Under this standard, a district court may review a complaint and dismiss sua sponte those claims premised on meritless legal theories and those which clearly lack any basis in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319 (1989). In this case, United States Magistrate Judge Jane Boyle reviewed Plaintiffs causes of action against Defendants under 28 U.S.C. § 1915(e)(2)(B)(i) and determined that the case should be served against all of the named defendants. See Order of Feb. 5, 2002. Implicit in Judge Boyle's decision to serve Defendants is a finding that the claims against them are not frivolous. Nothing has changed that would require that the case now be dismissed as frivolous. Accordingly, Defendant Laskie's Motion to Dismiss the claims against her as frivolous should be denied.
Dismissal Pursuant to Rule 12(b)(6)
A. Official Capacity Claims
Laskie claims that to the extent Plaintiff may be attempting to sue her in her official capacity, she is entitled to Eleventh Amendment immunity. Plaintiff has not specified whether he seeks money damages against Laskie in her official capacity as Supervisor of Records for the Texas Department of Criminal Justice. However, to the extent he may be attempting to do so, such claims are barred by Eleventh Amendment immunity. The Eleventh Amendment bars federal lawsuits by a U.S. citizen against a state agency or department, unless the state has expressly waived its immunity. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Neuwirth v. Louisiana State Bd of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986). When an action for money damages is brought against a state official in his official capacity, the claims are deemed to be a suit against the state. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Texas has not waived Eleventh Amendment immunity with regard to suits against the Texas Department of Criminal Justice. See TEX. GOV'T CODE ANN. § 492.010(c). Section 1983 does not override the Eleventh Amendment. Voisin's Oyster House, 799 F.2d at 186; see also Sherwinski v. Peterson, 98 F.3d 849, 852 (5th Cir. 1996) (holding that the Texas Tort Claims Act does not waive Eleventh Amendment immunity to suit in federal courts; state immunity encompasses not only the issue of whether a state may be sued but also where it may be sued; the Texas Tort Claims Act waives sovereign immunity only in state court actions). Accordingly, Plaintiffs claims against Laskie, to the extent he seeks money damages against her in her official capacity, are barred by Eleventh Amendment immunity and should be dismissed with prejudice.
B. Oualifled Immunity
Laskie contends the claims against her should be dismissed because she is entitled to qualified immunity. Government officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff is not required to anticipate the defense of qualified immunity and provide great specificity in his complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (per curiam) (citing Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc)). Instead, a two-step procedure applies. The plaintiff must initially "file a short and plain statement of his claim pursuant to Rule 8(a)(2)." Id. This pleading is then "followed by a more particularized reply pursuant to Rule 7." Id. Where, as here, the public official "pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail." Schultea, 47 F.3d at 1433. "The reply must be tailored to the assertion of qualified immunity and fairly engage its allegations." Id. Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff['s] injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). Whether a Rule 7(a) reply is appropriate in any particular case requires the court to review the plaintiffs complaint and to determine if it alleges with the requisite specificity any acts, conduct, or omissions that would overcome the defendant's claim of qualified immunity. See, e.g., Henrise v. Horvath, 94 F. Supp.2d 765, 766 (N.D. Tex. 2000); Wallace v. Dallas Indep. Sch. Dist., 2000 WL 575219, *6 (ND. Tex. May 11, 2000)(Lindsay, J.).
See also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) (discussing the Schultea's heightened pleading standard and holding that it does not apply in civil rights cases alleging municipal liability).
The Court has reviewed Plaintiffs complaint as well as his responses to United States Magistrate Judge Boyle's questionnaire. Although he provides some detail with respect to the events surrounding his complaint, his filings lack the requisite specificity to overcome Laskie's qualified immunity defense. Additionally, some of the facts seem to contradict others. For example, Plaintiff states in his interrogatory answers that his sentence correction records were sent to the TDCJ Supervisor numerous times and that she and her staff ignored them. In his Rule 7(a) reply with respect to his allegations against Jim Hamlin, he states that the order was not sent to TDCJ until July 12, 2000.
To survive dismissal, a plaintiffs pleadings must portray an objectively unreasonable violation of clearly established . . . law." Warnock v. Pecos County, 116 F.3d 776, 778 (5th Cir. 1 997) (quoting Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985). Additionally, a plaintiff may not succeed against a defendant solely on the grounds of respondeat superior. Supervisory officials cannot be held vicariously liable for a subordinate's actions under § 1983. See Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (1) affirmatively participate in acts that cause constitutional deprivation, or (2) implement unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985). Under some circumstances supervisory officials can be held liable for acts of omission, such as failure to train or supervise. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) (a supervisory official's failure to supervise or train his subordinates may amount to deliberate indifference that causes the violation of a constitutional right).
To the extent Plaintiff is attempting to hold Laskie liable under the doctrine of respondeat superior, Plaintiff fails to state a claim. Plaintiffs complaint lacks the specificity necessary to overcome Laskie's qualified immunity defense. Accordingly, Plaintiff should be granted leave to file a reply pursuant to Rule 7(a) detailing Laskie's conduct that violated his constitutional rights. Plaintiffs reply must show that Laskie personally participated in the violation of Plaintiffs clearly established constitutional rights and that her conduct was objectively unreasonable, or that she knew about misconduct by her staff but was deliberately indifferent to such misconduct. The District Court should decline to dismiss Plaintiffs personal capacity claims against Laskie at this juncture and allow Plaintiff to file a Rule 7(a) reply.
RECOMMENDATION
Defendant Laskie's Motion to Dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) should be denied. Defendant Laskie's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be granted in part and denied in part. The motion should be granted to the extent that any claims against Laskie in her official capacity should be dismissed with prejudice as barred by Eleventh Amendment immunity. The motion should be denied without prejudice in all other respects and the District Court should permit Plaintiff to file a Rule 7(a)