Opinion
CIVIL ACTION NO. 3:00-CV-2004-G.
September 17, 2001.
MEMORANDUM ORDER
Before the court is the motion of the defendant Gary Johnson ("Johnson"), filed August 15, 2001, to dismiss the plaintiff's claims against him on a variety of grounds. The plaintiff has not responded to the motion within the time prescribed by the local rules of this court. See LR 7.1(e) Local Civil Rules, Local Rules of the United States District Court for the Northern District of Texas ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed.").
This is a pro se suit for money damages arising out of a prisoner's claim that he has been wrongfully incarcerated. Johnson asserts an Eleventh Amendment immunity to such damages to the extent relief is sought against him in his official capacity and qualified immunity to the extent that relief is sought against him personally. He also contends that the plaintiff has not alleged the kind of involvement by him personally required to subject him to liability under 42 U.S.C. § 1983.
The plaintiff filed a separate case in this court seeking habeas relief on the same facts. Waites v. Baker, No. 3:00-CV-1859-M. That case was dismissed on December 4, 2000 for failure to exhaust state remedies. A certificate of appealability was denied by the district court on January 2, 2001 and by the Court of Appeals on April 2, 2001.
These are all meritorious defenses or jurisdictional bars to the success of the plaintiff's claims. Accordingly, the motion to dismiss the plaintiff's claims against the defendant Johnson is GRANTED.