Opinion
Civil Action No. SA-00-CA-0326 NN
September 28, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. Introduction
Defendants have moved for a FED. R. CIV. P. 12(b)(6) dismissal, or alternatively, for summary judgment, on all of plaintiff's causes of action. Docket Entry 45. Plaintiff has failed to file a response to defendants' motion. Because I have relied on matters outside the pleadings, I will dispose of defendants' motion as one seeking summary judgment pursuant to FED. R. CIV. P. 56. For the reasons discussed below, I hereby GRANT defendants' motion for summary judgment in its entirety. Defendants have demonstrated the absence of a genuine issue of material fact under the applicable legal standards such that plaintiff is entitled to no relief in this cause.
II. Factual Background
This is a civil rights lawsuit pursuant to 42 U.S.C. § 1983 filed by Lawrence James Webb ("Webb Sr."), appearing pro se, on behalf of his minor son, Lawrence James Webb, Jr., ("Webb Jr.") and himself. This action arises from a disciplinary meeting that Webb Sr. and defendant Beatriz Hammoudeh, Principal of Nelson Elementary, had on February 9, 2000 concerning Webb Jr.'s conduct at school. In essence, Webb Sr. alleges that defendant Hanunoudeh invaded his constitutionally protected privacy rights when she made a false report to his parole officer. According to Webb Sr., because of defendant Hammoudeh's complaint to his parole officer, the Parole Board revoked his annual reporting status, compelling him to report to his parole officer on a monthly basis. The record, however, shows that defendant Hammoudeh did not initiate contact with Webb Sr.'s parole officer, but that instead, the parole officer contacted her as part of his review of Webb Sr.'s parole status. Further, the undisputed record reveals that the main reason for the Parole Board revocation of Webb Sr.'s annual reporting status was his violation of a condition of his parole as shown by his urinalysis test on March 21, 2000 which tested positive for marijuana.
Webb Sr. originally filed his first request for appointment of counsel on June 9, 2000. Docket Entry 14. The request was denied on July 11, 2000 on the grounds that he did not use the proper form for his request. Docket Entry 22. Webb Sr. then properly moved for appointment of counsel on July 18, 2000, which the court denied on the merits on August 1, 2000. Docket Entry 27. Webb Sr. moved again for appointment of counsel on November 8, 2000 (Docket Entry 42), as well as for in forma pauperis ("IFP") status (Docket Entry 41). Webb Sr's second motion for appointment of counsel (Docket Entry 42) is hereby DENIED for the same reasons I articulated in my August 1, 2000 Order. With respect to his IFP application, the docket sheet in this case reflects that Webb Sr. obtained IFP status on April 12, 2000, shortly before the filing of his complaint. Docket Entry 3. As such, plaintiff's IFP application, filed November 8, 2000 (Docket Entry 41) is DENIED AS MOOT .
Docket Entry 4.
Docket Entry 4, at 4 Docket Entry 45, Exhibit A, Webb Sr.'s deposition, at 6 19.
Id.
Docket Entry 45, Exhibit B, Affidavit of Parole Officer Alfredo Rodriguez, at ¶ 6.
Id. at ¶ 8.
Webb Sr. also asserts a racial harassment claim on behalf of his son on the grounds that he overheard defendant Hammoudeh referred to her son as "that little nigger." It is undisputed, however, that Webb Jr. was not present when the comment was supposedly made nor is Webb certain that defendant Hammoudeh's comment was directed at his son.
Docket Entry 4, at 3-4 Docket Entry 45, Exhibit A, at 7-9.
Docket Entry 45, Exhibit A, at 8 41.
With respect to defendant Splitek, it appears that the only claim Webb Sr. asserts against him is his failure to respond to his telephone calls concerning defendant Hammoudeh's alleged actions and the Parole Board's proceedings.
Id. Exhibit A, at 6-7
Defendants seek summary judgment on all of plaintiff's claims on the ground that, as a matter of law, plaintiff fails to state a cognizable constitutional violation for which relief can be granted under 42 U.S.C. § 1983. I agree.
Docket Entry 45, at 5-12.
III. Jurisdiction
This court has original jurisdiction, in accordance with 28 U.S.C. § 1331.
IV. Analysis
A. Summary Judgment Standard
A party is entitled to summary judgment upon motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment; the requirement is that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Banc One Capital Partners Corp. v. Kneipper , 67 F.3d 1187, 1198 (5th Cir. 1995); Neff v. American Dairy Queen Corp ., 58 F.3d 1063, 1065 (5th Cir. 1995).
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247 (1986).
Anderson v. Liberty Lobby, Inc ., 477 U.S. at 248; Thomas v. LTV Corp ., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc ., 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co ., 58 F.3d 193, 195 (5th Cir. 1995); MacMillian v. United States , 46 F.3d 377, 380-81 (5th Cir. 1995).
Anderson v. Liberty Lobby, Inc ., 477 U.S. at 249; Kunin v. Feofanov , 69 F.3d 59, 61 (5th Cir. 1995); Banc One Capital Partners Corp. v. Kneipper , 67 F.3d at 1198.
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. However, Rule 56 does not require that the moving party support its motion with evidentiary materials negating the opponent's claim. Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Thus, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party may not rest upon the mere allegations or denials in his pleading. Rather, the nonmoving party's response must set forth facts showing that there is a genuine issue for trial. If the nonmovant does not so respond, the court must enter summary judgment against him. B. Plaintiff's Section 1983 Claims Fail as a Matter of Law 42 U.S.C. § 1983 of the Civil Rights Act provides that any citizen may seek redress in this court by way of damages against any person who, under color of state law or custom, intentionally deprives that citizen of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Accordingly, in order to establish a claim under § 1983, Webb Sr. must show that defendants Splitek and Hammoudeh, under color of law, violated a clearly established constitutional right. This he cannot do.
Celotex Corp. v. Catrett , 477 U.S. at 323; Wise v. E.I. DuPont Nemours Co ., 58 F.3d at 195; Burfield v. Brown, Moore, Flint, Inc ., 51 F.3d 583, 588 (5th Cir. 1995).
Edwards v. Aguillard , 482 U.S. 578, 595 n. 16 (1987); Celotex Corp. v. Catrett , 477 U.S. at 323.
Id.
FED.R.CIV.P. 56(e); Anderson v. Liberty Lobby, Inc ., 477 U.S. at 250; State of Texas v. Thompson , 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. at 324; Neff v. American Dairy Queen Corp., 58 F.3d at 1065; Engstrom v. First Nat'l Bank , 47 F.3d 1459, 1462 (5th Cir. 1995).
Lujan v. National Wildlife Federation , 497 U.S. 871, 884 (1990); Celotex Corp. v. Catrett , 477 U.S. at 323.
See Dahl v. Akin , 360 F.2d 277, 279-80 (5th Cir. 1980).
i. Racial Harassment Claim
Webb Sr. alleges that in February of 2000 he attended a meeting with defendant Hammoudeh to discuss his son's unacceptable behavior at school and the disciplinary action the school district was considering imposing on him. Apparently, after the meeting ended and plaintiff and his son left the meeting room, plaintiff returned to the room, leaving his son in the hallway outside the room. Upon reentering the room, plaintiff alleges that he overheard defendant Hammoudeh's conversation with another school employee in which she apparently said "that little nigger." According to his deposition testimony, Webb Sr. is not certain whether defendant Hammoudeh was referring to his son, but nevertheless believes that the racial slur was directed at his son as it was made a few minutes after they had left the room. It is undisputed that Webb Jr. was in the hallway outside the room and did not hear the remark. This is the only racial remark Webb Sr. alleges defendant Hammoudeh made regarding his son. Even assuming, arguendo, that plaintiff's allegations are true, as I must do in a summary judgment proceeding, I find that the utterance of a single racial slur made outside the presence of plaintiff's son, does not rise to the level of a constitutional violation for purposes of establishing a claim under § 1983.
According to plaintiff's deposition testimony, any disciplinary action taken by the school district against his son is not the basis of the claims alleged in this case. Docket Entry 45, at 5 fn. 1 Exhibit A, at 20.
Id. Exhibit A, at 7-9 13-17.
Id. at ¶ Exhibit A, at 8.
Id. Exhibit A, at 8.
Id. Exhibit A, at 8.
Id. Exhibit A, at 6, 8 41.
In seeking summary judgment on this claim, defendants rely on a case from the Tenth Circuit which clearly disposes of plaintiff's claim. In Abeyta v. Chama Valley Independent School District, a twelve year old student, by and through her next friends, brought a § 1983 action against her school district based on one of her teacher's actions in calling her a prostitute in front of her class and allowing other students to do the same for a period of several months. The plaintiff alleged that the teacher's actions violated her substantive due process rights to be free from invasion of her personal security by sexual abuse and harassment by psychological abuse.
Id. at 8-9
77 F.3d 1253 (10th Cir. 1996).
Id. at 1254.
Id.
In reversing the district court's denial of defendant's motion for summary judgment, the court first considered whether the plaintiff stated a viable cause of action under § 1983. The court in that regard held that no actionable cause of action for invasion of personal security existed in the case. The court based its decision on the fact that plaintiff did not plead, nor prove, that any physical invasion of her person occurred in the case. The court also held that while defendant's claim maybe actionable under Title VII if the conduct occurred in an employment context, "[m]ore is required to state a claim for a constitutional violation — the standard we must apply here — than for a statutory claim under Title VII." Regarding the allegation of harassment by psychological abuse, the court held the defendant's actions did not rise to the level of a constitutional deprivation of rights.
Id. at 1255-56.
Id.
Id.
Id. at 1256.
Id. at 1257.
Likewise, in the instant case, which presents far less egregious conduct than in Abeyta , there are no allegations that Webb Jr. suffered any invasion of his person. There are no allegations of physical abuse in this case or that he was damaged in any way. Significantly, there is no evidence that Webb Jr. even heard the alleged single racial slur. In fact, there is unrebutted evidence, through plaintiff's own deposition testimony, that plaintiff's son was not even present at the time the alleged comment was made. Because the allegations in this case do not state a cognizable claim of a constitutional violation for which relief can be granted under § 1983, defendants' motion for summary judgment on plaintiff's claim for racial harassment on behalf of his son is GRANTED .
Docket Entry 45, at 9 Exhibit A, at 8.
Id. Exhibit A, at 8 41.
ii. Invasion of Privacy Claim
Next, Webb Sr. alleges that defendant Hammoudeh violated his privacy rights when she made a false report to his parole officer which resulted in the revocation of his annual reporting status and requirement that he pay "restitution for the rest of his life. Plaintiff claims that his request for 1.5 million dollars in damages does not even begin to meet the damage he has suffered as a result of defendants' unlawful actions. Plaintiff's claims have no merit in law or in fact.
Docket Entry 4, at 3-4 Agreed Pre-Trial Order submitted by plaintiff on October 30, 2000, at 6.
Id.
According to the summary judgment evidence of record, plaintiff has been on parole since his release from the Texas Department of Criminal Justice, Institutional Division, in 1985. Due to the nature of his offense ( i.e., Delivery of a Controlled Substance), plaintiff was assessed with lifetime" parole. This means that plaintiff is subject to any requirements imposed by the Texas Board of Pardons and Paroles for the rest of his life.
Docket Entry 45, at ¶ Exhibit A, at 13.
Id. at Exhibit B, at ¶ 4.
Docket Entry 45, at 6.
Prior to the events made the basis of the instant lawsuit, plaintiff was on annual reporting status. Based on the sworn affidavit of Alfredo Rodriguez, a Parole Officer with the San Antonio Parole Office, that meant that plaintiff was only required to report to the Parole Office on an annual basis. According to Mr. Rodriguez' testimony, "[a]nnual reporting status is a privilege, not a right, and can be voided by the Board of Pardons and Parole at anytime, for any reason. If a parolee's annual reporting status is voided, the parolee must report to his/her parole office once a month for the term of his/her parole."
Id. Exhibit A, at 14-16.
Exhibit B, at ¶ 5. According to the parole officer, the Board of Pardons and Paroles eliminated annual reporting status for all future parolees in 1999. Id.
Regarding the specific allegations concerning the voiding of plaintiff's annual reporting status, he alleges that in February of 2000, defendant Hammoudeh contacted the San Antonio Parole Office, and falsely accused him of slamming a book onto a table at a teacher/student conference. Plaintiff alleges that as a result of the false report made by defendant Hammoudeh, he was ordered to report to the Parole Office, whereupon he was given a urinalysis. Plaintiff failed the urinalysis as it tested positive for marijuana. As a result of the failed urinalysis, plaintiff's annual status was voided and he was returned to monthly reporting status.
Docket Entry 45, Exhibit A, at 13 41.
Id. Exhibit A, at 14 17.
Id. Exhibit B, at ¶ 8.
Id.
According to Parole Officer Rodriguez, he was assigned to plaintiff's case in March of 2000 and was instructed to investigate any complaints about plaintiff to determine if his parole status needed to be reevaluated. As part of his investigation, Rodriguez contacted and interviewed persons he considered necessary for purposes of properly investigating plaintiff's status. Although Texas law precludes Rodriguez from disclosing the names of the persons he contacted in furtherance of his investigation, he specifically stated in his affidavit that defendant Hammoudeh "did not call or write the Parole Division regarding Mr. Webb."
Id. at ¶ 4.
Id. at ¶ 7.
Exhibit B, at ¶¶ 6 7.
Parole Officer Rodriguez then directed plaintiff to the Parole Office to discuss his parole reporting status. Plaintiff was ordered to submit to a urinalysis, which he failed. Based in large part upon the failed urinalysis test, Parole Officer Rodriguez prepared a report to the Texas Board of Pardons and Paroles in which he recommended that plaintiff's annual reporting status be voided and plaintiff be ordered to report on a monthly basis. The Board of Pardons and Paroles adopted Rodriguez' recommendation and changed plaintiff's reporting status to monthly reporting. Contrary to plaintiff's assertion, there is no legal basis for holding defendant Hammoudeh responsible for plaintiff's own shortcomings.
Id. at ¶ 8.
Id.
Id. at ¶ 9.
In order to sustain his claim under § 1983 that defendant Hammoudeh violated his constitutional rights when she made the alleged false report to the parole officer, plaintiff must first demonstrate the specific federal constitutional or statutory provision that defendant Hammoudeh violated in making her alleged statements.
Defendants have moved for summary judgment on this claim and have provided relevant case authority in support of their argument that defendant Hammoudeh's actions, even if true as plaintiff alleges, do not relate to her official role as principal of Nelson Elementary; and thus, they were not performed "under color of law." I, however, need not address this issue as plaintiff has failed to present evidence that any alleged statements made by defendant Hammoudeh caused the alleged violation of a federal law and/or constitutional provision.
Docket Entry 45, at 9-11.
The uncontroverted summary judgment record demonstrates that the decision to void plaintiff's annual reporting status was made in large part for plaintiff having failed an urinalysis test. Plaintiff simply cannot demonstrate that defendant Hammoudeh's alleged statements to the parole office directly caused his parole status to be voided. Furthermore, there is no federal law or constitutional provision that guarantees the right of a parolee to an annual reporting status. The evidence is clear that "[a]nnual reporting status is a privilege, not a right, and can be voided by the Board of Pardons and Parole at anytime, for any reason. If a parolee's annual reporting status is voided, the parolee must report to his/her parole office once a month for the term of his/her parole."
Exhibit B, at ¶ 5.
Accordingly, because plaintiff has failed to state a cognizable claim of constitutional violation for which relief can be granted under 42 U.S.C. § 1983, defendants' motion for summary judgment is GRANTED . To the extent that defendant Hammoudeh has asserted the defense of qualified immunity, I need not address the issue because plaintiffs claims are not actionable.
iii. Does Failure to Return Telephone Calls Rise to the Level of a Constitutional Violation?
The sole claim plaintiff makes against defendant Dr. Splitek is that he did not return his telephone calls. During the review of plaintiff's parole status, plaintiff apparently made numerous telephone calls to Dr. Splitek's office to complain about defendant Hammoudeh's actions.
Docket Entry 45, at 7 Exhibit A, at 6-7 19.
As with the allegations against defendant Hammoudeh, in order for plaintiff to prevail against defendant Dr. Splitek, he must demonstrate that Dr. Splitek violated a specific federal law or constitutional provision. Plaintiff's only allegation against him is that he failed to return his telephone calls. Neither federal statutory or constitutional law mandate the return of telephone calls to anyone.
Accordingly, because plaintiff cannot provide the specific federal law or constitutional provision violated by Dr. Splitek with respect to his alleged failure to return plaintiff's telephone calls, plaintiff's § 1983 claim against this defendant fails as a matter of law.
V. Conclusion
Based on these findings, the court hereby GRANTS defendants' motion for summary judgment (Docket Entry 45) on the grounds that plaintiff has failed to state a cognizable constitutional violation for which relief can be granted under 42 U.S.C. § 1983. Defendants have demonstrated the absence of a genuine issue of material fact under the applicable legal standards such that plaintiff is entitled to no relief in this cause. Accordingly, this action is DISMISSED WITH PREJUDICE . The parties shall bear their own costs. Any other motion currently pending is hereby DENIED AS MOOT .