Opinion
6:23-CV-00285-ADA-DTG
01-29-2024
BRENDA ELAINE KING, Plaintiff, v. BRYAN COLLIER, TDCJ Executive Director, Defendant.
HONORABLE ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE
REPORT AND RECCOMENDATION ON ECF NOS. 7 AND 25
DEREK T. GILLILAND UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Dismiss and Defendant's Motion to Strike Plaintiff's Amended Complaint. ECF Nos. 7 & 25, respectively. After careful consideration of the briefs, arguments of the Parties, and the applicable law, the Court RECOMMENDS that Defendant's Motion to Dismiss (ECF No. 7) be GRANTE and that Defendant's Motion to Strike Plaintiff's Amended Complaint (ECF No. 25) be GRANTED.
In its Reply, Defendant dropped the portion of its Motion complaining of inadequate service of process. ECF No. 15 at 2. As that argument was withdrawn, the Court need not address it.
I. FACTUAL BACKGROUND
This case arises from Plaintiff, Brenda Elaine King's incarceration by the Texas Department of Criminal Justice. ECF No. 1 at 3. Plaintiff contends that Defendant violated her constitutional rights by keeping her incarcerated after she first became eligible for parole in 2015 and did not release her until 2022. ECF No. at 3-4. At a status hearing on September 28, 2023, Plaintiff clarified that she became eligible for parole in 2015, and expected to be released then, but was not paroled until May of 2022, which was still short of the maximum incarceration allowed under her prior conviction. See ECF No. 1-2 at 2 (stating a “MAXIMUM EXPIRATION DTE: 10/22/2022); 1-5 at 2 of 13.
In response, Defendant filed a motion to dismiss. That Motion asserted that Plaintiff had not been properly served Defendant and that Plaintiff's claims should be dismissed based on sovereign immunity, on Plaintiff's failure to articulate facts showing Defendant's personal involvement, and on qualified immunity. ECF No. 7. Defendant moved for dismissal on alternative bases because the Complaint did not clearly assert liability against Defendant in his official or individual capacity. Id. After Defendant filed its motion, Plaintiff effected proper service, and Defendant withdrew its Motion to Dismiss for Insufficient Service of Process. ECF No. 15 at 2. Thus, the Court need only address Defendant's Motion to Dismiss for sovereign immunity, failure to state a claim, and for qualified immunity.
The Court held a status conference on September 28, 2023. At the conference, the Court heard from both parties regarding the pending motions, denied Plaintiff's two motions for default judgment (ECF Nos. 28 and 31), and took the other pending motions under advisement.
II. ANALYSIS
The Court evaluates Plaintiff's Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) governs motions to dismiss for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Defendant challenges Plaintiff's Complaint under Rule 12(b)(1) based on sovereign immunity. ECF No. 7 at 6. Rule 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Defendant challenges Plaintiff's Complaint under Rule 12(b)(6) for failing to allege any facts that raise a possibility of liability under section 1983. ECF No. 7 at 8-10. Finally, Defendant asserts that Plaintiff's claims should be dismissed because he is entitled to qualified immunity. ECF No. 7 at 10-11. As it is not entirely clear which approach Plaintiff is pursuing, the Court considers all of Defendant's alternative grounds for dismissal.
Plaintiff's complaint does not clearly assert its basis for the claim against defendant- whether it's in his official or personal capacity. Plaintiff's complaint simply identifies “Defendant No. 1” as “Bryan Collier” “(TDCJ) Executive Director.” ECF No. 1 at 2. The Complaint alleges the suit is against “State or local officials (a § 1983 claim)” and asserts that Plaintiff is suing under the “Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Texas Constitution.” Id. at 3. The Complaint also alleges that “The Texas Department of Criminal Justice (TDCJ) woman's prison facility held me in illegal detention as a hostage against my will knowingly from 2015 thru 2022.” Id. at 4. While the Complaint does not clearly identify specific individuals involved, it appears to allege that Plaintiff qualified for release on July 31, 2015, when her “Parole Time Credits (“street credits”)” reached “6 years 3 months 9 days.” Id. This is supported by Plaintiff's passing cite to Texas Government Code section 508.145, which states that an “inmate is eligible for release on parole when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” Tex. Gov't Code § 408.145(f). As Plaintiff's Complaint notes, however, she was not released on parole until May 3, 2022-when her alleged “illegal detention” ended. ECF No. 1 at 7. The Complaint does not clearly address in what capacity Defendant is sued, and so the Court addresses all of Defendant's asserted bases for dismissal.
Sovereign immunity bars Plaintiff's claims against defendant in his official capacity. As the Supreme Court has explained, a suit against a state official in his official capacity is a suit against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). And the Constitution does not allow suits against States. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). The Eleventh Amendment bars damage suits against States, and there must be a waiver of sovereign immunity for a suit to proceed. Kentucky v. Graham, 473 U.S. 159, 160 (1985). If Plaintiff sued Defendant in his capacity as the Executive Director of TDCJ-which is how he is identified in the Complaint-she has attempted to sue the state of Texas. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Neither Plaintiff nor this Court have identified any basis for waiver of sovereign immunity by the State of Texas. See Quern v. Jordan, 440 U.S. 332, 345 (1979)(holding that section 1983 does not override the Eleventh Amendment for suits against states); Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007)(holding that the State of Texas has not waived sovereign immunity for section 1983 claims). Thus, sovereign immunity bars any claims against Defendant in his official capacity.
Plaintiff's Complaint also fails to allege facts that would state a claim for relief as there is no allegation of Defendant's personal involvement in any of the relevant conduct. Under section 1983, Plaintiff must allege specific facts showing the Defendant's personal involvement in the wrongful conduct. Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992); Jacquez v. Pronunier, 801 F.2d 789, 793 (5th Cir. 1986). Plaintiff could do so by alleging that Defendant either participated in the acts complained of or implemented unconstitutional policies that resulted in Plaintiff's injury. Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008); see also Bowen v. Watkins, 669 F.2d 979, 988 (5th Cir. 1982); Hobart v. City of Stafford, 916 F.Supp.2d 783, 799 (S.D. Tex. 2013). For Plaintiff to hold Defendant responsible for conduct of his subordinates, she would have to show that he acted with deliberate indifference to constitutional violations committed by subordinate. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates, 537 F.3d at 435). Plaintiff's Complaint fails to allege any involvement by Defendant that would raise the possibility of liability. None of the materials provided by Plaintiff demonstrate personal involvement of Defendant in any of the alleged conduct or the conduct of his subordinates. As Defendant notes, his name appears only three times throughout the complaint, and even then, it is merely part of a request to “[R]EPORT my illegal detention to the (TDCJ) Executive, Bryan Collier and Chairman.” EFC No. 1-5 p. 3. None of these allegations are enough to raise any inference that Defendant is liable for any purported constitutional violations. Thus, Plaintiff's should be dismissed for failure to state a claim under Rule 12(b)(6).
The Court also agrees that the Texas Constitution provides no avenue of recovery for Plaintiff. Plaintiff's Complaint makes a single reference to Article I, Section 9 of the Texas Constitution-which prohibits unreasonable searches and seizures-and Plaintiff provides no detail as to how that provision allegedly applies to her case. See ECF No. 1 at 3. As Defendant argued, the Texas Constitution contains no provision for recovery like section 1983 and provides no general private claim under the Texas Constitution. See Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995)(noting that Texas has no case or statute similar to 42 U.S.C. § 1983); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 469 (Tex. App.-Fort Worth 1997, writ denied); Daniels v. City of Arlington, Tex., 246 F.3d 500, 507 (5th Cir. 2001)(affirming a district court ruling because “tort damages are not recoverable for violations of the Texas Constitution.”). Any alleged claim under the Texas Constitution is nonexistent and should be dismissed.
Plaintiff's claims are also barred by qualified immunity. When a government official acts within his discretionary authority and does not violate clearly established statutory or constitutional law, qualified immunity will protect the official from liability. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Evaluating the first step of the qualified immunity analysis, Plaintiff has failed to point to any statutory or constitutional right that was violated by failure to parole her before the full term of incarceration was complete. See Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004) (holding that the first step of evaluating qualified immunity requires the Court to “assess whether a statutory or constitutional right would have been violated on the facts alleged.”). Additionally, Plaintiff has failed to assert specific facts to raise an inference that Defendant's conduct “violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Id. (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The allegations in Plaintiff's Complaint fail both steps of the test and fail to allege even a plausible possibility of finding a waiver of qualified immunity. As such, the Court is persuaded that Plaintiff's Complaint should be dismissed under Defendant's qualified immunity.
Plaintiff cited, without explanation, Texas Government Code § 408.145, but that provision only discusses when parole is allowed-not required.
Plaintiff's claims are also barred by Supreme Court precedent as her incarceration resulted from a valid conviction. Plaintiff's Complaint alleges unlawful or unconstitutional incarceration because she was not released on parole earlier. She was eligible for release as early as 2015 but was not ultimately released until 2020-five months before her full sentence of incarceration expired. As Plaintiff complains of the time she spent during incarceration, she can only seek recovery for damages if she can show the conviction that led to the incarceration was overturned. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)(holding that “to recover damages for allegedly unconstitutional conviction or imprisonment, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”). Plaintiff also filed several habeas petitions, but none of those have called her conviction into question. See King v. Davis, Case No. 6:19-cv-004-ADA, ECF No. 9 (W.D. Tex. Mar. 6, 2019)(noting that Plaintiff never appealed her underlying conviction to the Texas Court of Criminal Appeals); see also King v. Wainwright, Case No. 6:19-cv-674-ADA (W.D. Tex.), King v. Davis, Case No. 1:20-cv-740-RP (W.D. Tex.), King v. Collier, Case No. 6:21-cv-869-ADA (W.D. Tex.). Plaintiff has not shown or alleged that her underlying conviction has been reversed, expunged, or called into question by a writ of habeas corpus, her incarceration was lawful. Thus, Plaintiff's § 1983 claims based on her incarceration as a result of that conviction are barred.
None of these conclusions would change if this Court considered Plaintiff's Amended Complaint. As noted by Defendant, the Amended Complaint was filed late and would leave Plaintiff without a prayer for relief. ECF No. 25 at 1-2. None of the allegations in the Amended Complaint add allegations of involvement or deliberate indifference by Defendant. ECF No. 24. The Amended Complaint makes detailed allegations about the lack of an individual treatment plan and repeats the allegations that Plaintiff should have been released on parole in 2015-even though her maximum sentence did not expire until October 22, 2022. Compare ECF No. 24 at 2 (“Plaintiff should have been released from Prison on Parol (2015).”) with ECF No. 24 at 5 (“MAX EXP DATE; 10/22/2022”). The additional allegations in the Amended Complaint fail to mention Defendant or demonstrate a reasonable inference that Plaintiff's constitutional rights were violated. See ECF No. 24. As such, Plaintiff's Amended Complaint fails to demonstrate good cause because Plaintiff offered no explanation for the untimely filing and any additional factual allegations in the Amended Complaint lack any importance to Plaintiff's case. See Filgueira v. U.S. Bank Nat. Ass 'n, 734 F.3d 420, 422 (5th Cir. 2013) Thus, the Court also recommends granting Defendant's Motion to Strike Plaintiff's Amended Complaint. ECF No. 25.
III. RECOMMENDATION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that Defendant's Motion to Dismiss (ECF No. 7) be GRANTED for lack of jurisdiction because of sovereign immunity, for failure to state a claim under Rule 12(b)(6), and for qualified immunity.
The Court also recommends that Defendant's Motion to Strike Plaintiff's Amended Complaint (ECF No. 25) be GRANTED as untimely and lacking good cause.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.