Doe et al v. Bailey et al, No. 4:2014cv02985 - Document 36 (S.D. Tex. 2015)
Court Description: MEMORANDUM AND ORDER GRANTING 10 Defendant Bailey's Amended Motion to Dismiss PURSUANT TO RULES 12(b)(1) AND 12(b)(6). Plaintiffs' claims against Defendant Bailey are DISMISSED on the merits. It is ORDERED that all claims of Plaintiff Prison Justice League are DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. DENIED AS MOOT is 29 Defendant Bailey's Motion for Protective Order. (Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
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Doe et al v. Bailey et al Doc. 36 IN THE UNITED STATES DI STRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION i .• " " JOHN DOE and PRISON JUSTICE LEAGUE , § § § § § § Plaintiffs , v. TRACY BAILEY , BRAD LI VINGSTON , JUAQUINE POPE , MICHAEL LEWIS , DI VEONLEA LOTT, MICHAEL KIRK, KENNETH CATHEY , KEVIN LLOYD, and TEXAS DEPARTMENT OF CRIMINAL JUSTICE , Defendants . CIVIL ACT I ON NO . H- 1 4-2985 § § § § § § § § MEMORANDUM AND ORDER Th i s ("Doe") is a prisoner civi l is an inmate Plaintiff John Doe rights case . incarcerat ed by the Texas Department of Criminal J ustice - Correctional Institutions Division ("TDCJ") . 1 Plaintiff Prison Justice " membership-based , League non - profit ("PJL") alleges that organization" with a it is mission a "to improve conditions of incarcerat ion through ' litigat i on , advocacy , and "Pla i ntiffs " ) Fourteenth [its ] membe rs .' " 2 a ll ege empowering violations Amendments under 42 Doe of and the U. S.C . § PJL (collectively, First, 1 983 Eighth , against and prison officers and supervisory officials , a nd v i o l at i ons of the Amer i cans with Disabilities Act , section 504 of the 42 U. S . C. 1973 §§ 12131 et seq. Rehabilitation Act , 29 ("ADA" ), U. S.C . and 79 4 § l See Docket Entry No . 8, Amended Complaint ("Am. Complt.") at 'll 57 . 2 Id . at 'll 9. Dockets.Justia.com ("Rehabilitation Act") against TDCJ directly. 3 ("Bailey") Warden Trac y Bailey has filed a motion to dismiss the claims against her pursuant to Rule 12 (b) ( 1) Civil Procedure and 12 (b) ( 6) (Docket Entry No. response (Docket Entry No. 13) . 10). of the Federal Rules of Plaintiffs have filed a After reviewing the pleadings, the motion, the response, and the applicable law, the Court concludes as follows. I . Doe's complaint stems Bac kground from an alleged use of force that occurred at the Estelle Unit, where the defendant guards and Warden Bailey are employed and where Doe was confined at the time of the alleged incident directly involving Doe. 4 Doe alleges that on January 25, 2014, he complained in writing to medical staffers that h e had lost 20 pounds since his placement on the high security wing. 5 A few days later, officers allegedly confiscated all h is belongings, including his c l othes, mattress, and blankets, and l eft him naked in a cold cell for three days withou t food. On January 30, Doe allegedly tried to get a 6 supervisor's attention to his plight by putting his arms in his food slot so 3 Id . at 'll'l 58 - 68. 4 I d. at 'll.'ll 10 , 12, 45, 57 . 5 Id . at 'I 46. 6 I d. 2 that it could not be closed . 7 action drew ("Pope") , the of then-Lieutenant Juaquine this Pope who allegedly emptied 14 ounces of pepper spray i nto Doe 's cell. s submit attention Instead of eliciting help , to Pope then allegedly demanded that Doe, already naked, a strip search justification for sending a in order " to create 'five-man team' an ostensible into his cell." 9 Doe claims tha t this five-man team , allegedly consisting of Defendants Michael Lewis, Diveonlea Lott, Michael Kirk, Kenneth Cathey, and Kevin Lloyd , overpowered Doe, who was already incapacitated by the pepper spray. 10 They allegedly knocked h im to the ground and struck him above the eye, causing a significant laceration. 11 that one officer then reached between his legs Doe alleges and violently twisted his genitals and briefly shoved an unknown object into his rectum while he screamed. 12 The guards then allegedly brought him out of his cell in leg irons and handcuffs, and a medical staffer determined that he should be seen in the medical area. 13 The guards allegedly wrapped a towel around Doe to conceal his nud i ty and escorted him to the infirmary where medical staff applied 1 I d . at 'II 47. This action is known as "jacking the food slot. 8 Id. at <J! Pope allegedly was later promoted to Captain. I d. 9 Id. at n 48. 49-50. 10 Id. at 'll'll 12, 50 - 51 . 11 Id . at 'II 51. 12 I d. at 'll 52. 13 Id . at '! 53. 3 II Id. a dermabond bandage to the laceration above his eye and scheduled him for an x-ray. 14 him to the Doe alleges that TDCJ staff later refused to take appointments "refusing " treatment. 15 and falsely represented that he was Doe a lleges that his wound continued to bleed for several days. 16 Doe alleges tha t the guards returned Doe to his pepper- sprayladen cell wi t hout cleaning it, allegedly contrary to TDCJ policy and in violation of the ADA. 17 Doe alleges that he suffers from Chronic Obstructive Pulmonary Disease ("COPD") and that the copious amounts of pepper ?pray used , along with the failure to clean his ce ll, severely aggravated his condition . 1 8 Regarding PJL, it claims that it has standing to sue for injunctive relief on behalf of its members who are confined at Estelle Unit . 19 Plaintiffs do not allege that Doe is a member of PJL in their amended complaint, although PJL points to Doe as an example of the alleged "ongoing," "rife" violence and excessive force at the Estelle Unit . 20 Plaintiffs do not allege that Bailey saw what happened to Doe in particular, 14 Id . at H 15 Id . at 16 Id. )7 Id . at 18 Id. at 'li 56 . 19 I d. at 'II 9 . 20 Id. at 'll1 1, 5 . 53-54. 54 . 55 . 4 directed the action, or actively participated in the incident involving Doe. Plaintiffs generally allege that officers at the Estelle Unit "routinely exercise unbridled discretion to use physical force on inmates that is unnecessary to maintain discipline on the unit striking them, twisting arms, slamming them into walls, or throwing them to the ground. " 21 Citing comments made by District Judge William Wayne Justice in connection with the Ruiz class action lawsuit , Plaint iffs contend that supervisory officials in TDCJ have "abdicated" their responsibility to oversee the use of force in the past and that "nothing has changed. " 22 Plaintiffs also allege that members of PJL have been abused by guards in the past. 23 Plai ntiffs contend that Bailey routinely reviews grievances filed by inmates and was thus "on notice" of "excessive retaliation" at the Estelle Unit, it." 24 force and systemic "but she has not tried to fix Plaint iffs also believe that Bailey has seen inciden ts involving the excessive use of force at the Estelle Unit and is aware of officers excessive amounts forming of five-man pepper spray. 25 extraction teams Plaintiffs and using contend that "Bailey had received many complaints about Joaquin Pope and one or 21 Id. at '11 17. 22 Id. at 1 18 (citing and quoting from Ruiz v . Johnson, 37 F. Supp . 2d 855, 929 (S . D. Tex. 1999), rev'd sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001)). 23 Id . at '1'11 20-24 . 24 Id . at 'I 35. 25 Id. at 'll'll 40 - 41. 5 more of t he other officers who assault [ed] John Doe regardi ng excessive force" but took no action to punish or restrain them. 26 Because she was "fully aware [that] excessive force is common in the [Estelle] unit," as well as retaliation, Plaintiffs claim that Bailey is liable as a supervisory official for failing to protect Doe and PJL members from harm and that her acquiescence permitted ongoing retaliation against them. 27 Doe seeks damages from Bailey for failing to protect him from officers known to be dangerous and an injunction preventing TDCJ from returning him to Estelle and an injunction preventing Defendants from retaliating against him for filing suit . 28 seeks injunctive relief and damages a lleged violations of the ADA. against He also TDCJ directly for PJL seeks declaratory judgment that Estelle Unit officers generally are violating their First, Eighth, and Fourteenth Amendment rights and t hat TDCJ's use of pepper spray violates the ADA and Rehabilitation Act. 29 Bailey now moves to dismiss PJL as a party for lack of standing and to dismiss Doe's claims against her in her official and individual capacities for failure to state a claim for which 26 I d. at 1 42. 27 I d. at '11'1. 60, 28 Id . at 1'J[ 70, 73 . 63. 29 PJ L does not seek specific injunctive relief, but only a general declaration that the Estelle Unit is violating the Eighth, First, and Fourteent h Amendments with respect to excessive force and retaliation and violating the ADA with regard to its use of pepper spray. See Am . Cornplt. at '1l 72 . 6 relief may be granted. 30 II. A. Rule 12(b) (1) Motion to Dismiss Standard of Review Federal courts are "courts of limited jurisdiction , having 'only the authority endowed by the Constitution and that conferred by Congress. ' " Halmekangas v. State Farm Fire and Cas. Co., F . 3d 290, 292 (5th Cir. 2010) (citations omitted) . 603 As such , the existence of subject matter jurisdiction may be challenged at any stage in the litigation and may be raised by the district court on i ts own motion . See Nguyen v . Dist . Director , Bureau of Immigration and Customs Enforcement , 400 F.3d 255 , 260 (5th Cir . 2005) (citations omitted) . Under Rule 12(b) (1) , a party can seek dismissal of an action for lack of subject matter j urisdiction. FED. R. Crv. P . 12 (b) ( 1) . The burden of establishing subject matter jurisdiction is on the party seeking to invoke it . See Ramming v. United States , 281 F.3d 158 , 161 (5th Cir. 2001). When a Rule 12 (b) (1) motion is filed along with other Ru l e 12 motions , the court should first consider the Rule 12(b) (1) motion. Id. B. Standinq Article III of the jurisdiction of federal Susan B. Anthony List v. H United States Constitution limits the courts to "Cases" and "Controversies ." Driehaus , Docket Entry No. 10 . 7 134 S. Ct. 2334 , 2341 (2014) (quoting U.S. CONST., Art . III , 2). § To show standing, a plaintiff must p l ead facts to indicate (1) an injury-in-fact that is concrete and particularized and actual or imminent; (2) a sufficient causal connection between the injury and the alleged harm; and injury is likely to be redressed by a favorable decision . The United States Supreme Court has recognized (3) the Id . that "an association has standing to bring suit on behalf of its members when : (a) its members wou l d otherwise have standing to sue in their own right ; (b) the interests it seeks to protect are germane to the organizat i on's purpose; and ©neither the claim asserted nor the relief requested requires the participation of individual memb.ers in the lawsuit." S . Ct. 2434 , 2441 Ass'n of Am. , Expl osives, Hunt v . Washington State ApPle Adver. Comm ' n, 97 (1977) Inc. 700 v. F . 3d (emphasis added); Bureau of Alcohol, 185, 191 (5th see also Nat' 1 Rif l e Tobacco, Cir. 2012); Firearms , and Ass'n Am. of Physicians and Surgeons v . Tex. Med. Bd., 627 F.3d 547, 550 Cir . 2010) . The party invoking federa l jurisdiction bears (5th the u l timate burden to establish standing with the "manner and degree of evidence required at the successive stages of the litigation." Lugan v. Defenders of Wildlife, 112 S . Ct. 2130, 2136 (1992) . At the pleading stage of this litigation , PJL has pled facts facia l ly to support the first two prongs of associational standing with respect relief. to PJL PJL ' s alleges requests that for it 8 injunctive brings this and declaratory action through "organizational standing, relying on the standing of its members . " 31 PJL further alleges that it is "a membership-based , incorporated non-profit organization" which has a mission "to improve cond i tions of incarceration through [its) members.'" 32 It ' litigation , and empowering contends that over 100 of its members are confined at the Estelle Unit. 33 it advocacy, PJL alleges facts to indicate that seeks relief on behalf of its members and that the rel ief it seeks is germane to PJL's mission. To determine whether an association meets the third prong that the participation of individual members is not required for the proper adjudication of the case - the Court examines both the relief requested and the c la ims asserted . See Harris v. McRae, 100 S. Ct. 2671, 2690 (1 980); Friends for Am. Free Enter . Ass'n v. WalMart Stores, 284 F.3d 575 , 577-78 (5th Cir. 2002) . In the Fifth Circuit, the key inquiry regarding whether the c l aims require the participation of the individua l adjudication of the claim members centers on whether the can representative in j ured members, be proven by evidence from or whether the claim requires a "fact-intensive-individual inquiry." Ass 'n of Am. Physicians and Surgeons , 627 F.3d at 552. PJL claims that the guards at Estelle use excessive force and 31 Am. Compl. 32 Id. 33 Id. at '11 9 . 9 retaliate against its members in violation of its members' Eighth, First, and Fourteenth Amendment rights, and seeks a declaration from this Court that the Estelle Unit is violating those rights. As discussed below, excessive force, retaliation, and whether the use of pepper spray is appropriate in a situation are highly factintensive inquiries requiring the participation of any individual making such claims. PJL relies on Association of American Physicians and Surgeons to argue that it has standing claiming that it alleged "similar Al though both cases has involve to sue some on its members' facts" assertion retaliation, the similarities end there . behalf, to that case. 34 First Amendment of The members of PJL are not physicians seeking redress from an allegedly defamatory and capricious medical board; these are prison inmates who individually and under subject to discipline and t he use of force to maintain order and security in a prison . all sorts of varied circumstances are Sorting out whether the discipline and force used passes constitutional muster requires a case-by-case, fact-intensive review of the individual circumstances surrounding each inc iden t in question, inquiring whether the force was applied in a "good faith effort to maintain or restore sadistical ly to cause harm." discipline , maliciously Hudson v . McMillian, 112 999 (1992). or Docket Entry No. 13 at 5. 10 s. and Ct . 995, 1. Excessive Force Excessive f orce in the prison context requires the evaluation of the nature and amount of force used , the extent of the injury suffered, and whether the force was used to keep order or for a malicious purpose, among other things. See Wilkins v. Gaddy, 130 S. Ct. 1175 , physical 117 7-79 (2010) injury is a (rejecting the notion that significant necessary element of an Eighth Amendment excessive force claim but noting that the extent of the injury suffered is "one factor" suggesting whether the use of force could plausibly have been thought necessary in a particular situation). "Excessive force claims are necessarily fact-intensive; whether t he force used is 'excessive' or 'unreasonable' depends on 't he facts and circumstances of each particular case. ' " Deville v. Marcantel , 567 F . 3d 156, 167 (5th Cir. 2009} (discussing Fourth Amendment excessive force claims}; see also Carter v. Wilkinson , Civ. A. No. 1:06-cv-02150, 2010 WL 5125499 , at *2 (W.O . La. Dec. 9, 2010} (quoting Deville and discussing Eighth Amendment excessive force claims}. Because excessive force claims require individualized, fact-based details of particular situations, participation of the individual members who were allegedly subjected to the harm is necessary for the proper adjudication of each claim. Moreover, the participation of each allegedly harmed member would be crucial to determining the viability of affirmative defenses such as exhaustion of remedies and to fashioning the scope 11 of injunctive relief appropriate to each case. Wal-Mart $ee Stores , 284 F . 3d at 577-78 (finding that the scope of injunctive relief that defenses, was were appropriate, different and for the each available affirmative plaintiff , participation of the individual members). requiring For example, Doe seeks an injunction against ever being placed back at Estelle. 35 For another inmate , moving to another wing might be sufficient, if he were to prevail in his case with adequate proof . Proper injunctive relief in another particular guard, case could and so on. involve an injunction against a In the context of fact-intensive cases like this one , injunctive relief still requires individual participation; PJL cannot c l aim automatic associational standing solely because it seeks only injunctive or declaratory relief. See Wal-Mart Stores, 284 F.3d at 577-78. Although PJL alleges a few incidents with anonymous inmates and unnamed guards on unspecified dates, each of those c l aims must be examined individually, and the proper plaintiffs to prosecute those claims are the individuals who were allegedly subjected to the excessive force and retaliation. See, e . g. , Amnesty America v. County of Allegheny , 822 F . Supp. 297, 301 (W.O. Pa . 1993) (finding that "serious allegations of excessive force and sexual assault require the participation of individual 'members' in this actionu 35 See Am. Compl t. at '11 73. 12 and rejecting Amnesty's associational standing arguments) . 36 Retaliation 2. To state a claim for retaliation in the prison context, an inmate must allege the violation of a specific const i tutional right and be prepared to establish that , but for the retaliatory motive , Woods the complained-of incident wou l d not have occurred. Smith, 60 F . 3d 1161 , 1166 (5th Cir. 1 995). Here, v. PJL genera l ly alleges that its unnamed members file unidentified grievances and are then at some unspecified time sub j ected to discipline . whether a prisoner requires grievance has individualized chronol ogy p l ausibly of be adverse act . events inferred , been from and retaliated which a against assessments a retaliatory for of filing a causation, motive more-than-de-minimus Again , could retaliatory See , e.g . , Richard v. Martin , 390 F. App ' x 323 , 325- 26 (5th Cir . 2010) (looking to all of the particular a l legations made by an inmate and determining that he had stated a claim for retaliation based on specific facts to establish p l ausible causation and adverse retaliatory action in his case). The need for close scrutiny of individua l reta l iation claims is especia ll y keen in the prison context . admonished district courts: "To assure The Fifth Circuit has that prisoners do not 36 At least one of the alleged incidents of excessive force pled by PJL bears a striking simi l arity to a separate case brought by an individual inmate a t the Estelle Unit, who is represented by the same lawyer who represents Plaintiffs here . Cf. Am . Complt. at 'll 21 (fourth example ) with Hastings v. Williams , Civi l Action H-15-0239, at Docket Entry No. 1, at 'lli 10- 15 (Atlas, J. presiding) . 13 inappropriately insulate themse lves from disciplinary actions by drawing the shield of retaliation around them, tr ia l courts must carefully scrutinize these claims." PJL' s putative Woods , 60 F . 3d at 1166. retaliation claims, wherein it seeks a Thus, general declaration covering t he whole Estelle Unit rather than a remedy for a specific incident or applied against a specific guard, is inappropriate for adjudication through associational standing . Notions of fairness and the right to defend oneself against accusations require the participation of each individual allegedly harmed and the opportunity of defendants against whom such wrongs are alleged to raise a defense, including any affirmative defenses, in each individual case. 3. Pepper Spray Likewise, PJL's general request for a declaration that "TDCJ's custom and practice with rights under the ADA using pepper spray v iolates and Section 504" 37 requires inmates' individual participation of members and a case-by-case evaluation rather than a blanket declaration against TDCJ . Prison officials may reasonably use pepper spray or similar chemica l agents to maintain or restore order, and whether the use was reasonable depends on the facts and circumstances of each individual case. See, e.g ., Scott v. Hanson , 330 F. App'x 490, 491 (5th Cir. 2009) , cert . denied, 130 S . Ct. 638 (2009) ; Thomas v. Comstock, 222 F. App'x 439, 442 (5th 31 Am . Complt. at 72. 14 Cir. 2007) situation (citations to reasonably, support omitted) the including that (noting finding the several that facts officer in used officer warned the the spray inmate, had ensured that inmate had no health problems that would be aggravated by the spray, infirmary) . upon the and immediately allowed inmate to go to the Whether the use of pepper spray is appropriate depends circumstances sensitivities of each of each potential case and the plaintiff . particular Such a claim necessarily requires the participation of each member inmate who claims to have been harmed. PJL seeks "a declaratory judgment that Estelle Unit officers are violating their First , Eighth, and Fourteenth Amendment rights, and that TDCJ' s custom and practice with using pepper spray violates inmates' rights under the ADA," and hence, it prays for "appropriate injunctive relief." 38 alleging excessive force, Because these claims of PJL retaliation, and practices of using pepper spray require, as observed above, individualized assessments and fact-intensive participation of inquiries each into member adjudication of this case. is each member's necessary for claims, the the proper Concomitantly, PJL lacks standing to bring suit based on such fact-intensive individual i zed claims of 38 Am. Complt. a t 'll'll 72, 74 (C}. 15 its members, and PJL will t herefore be dismissed from this suit. 39 C. Officia1 Capacity against Bai1ey The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State , or by Citizens or Subjects of any Foreign U.S. State . " CONST. amend XI. Federal court jurisdiction is limited by the Eleventh Amendment and the principle See Semi nole Tribe of of sovereign immunity that it embodies . Fl orida v. Fl orida , 116 Pennhurst State Sch . (1984) (explaining & S. Ct. Hosp. v . that the 1 11 4, 1122 Halderman, El eventh (1996); 104 S. Ct . Amendment see 900, acts jurisdictional bar to suit against a state in federa l also 908 as a court) . Unless express l y waived, the Eleyenth Amendment bars an action in federal court by, inter alia, a citizen of a state against his or her own state, including a state agency. See Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 574 (5th Cir . 2002) . As a damages state agency , under the TDCJ is Eleventh immune Amendment from a un l ess it suit is for money waived or 39 Because PJL's associational standing arguments fail on the t hird prong of t he analysis, it is not necessary for the Court to decide, in this case, whet her and how Bailey's allegations o f unethical behavior in PJL' s formation and Texas Civil Rights Project's advocacy might disqualify PJL, or whether PJL possesses the requisite characteri st ics to qualify as an "association" within the meaning of Hunt and its progeny. See Hunt, 97 S . Ct. at 2442 (finding t hat t he state agency, although not a formal "association , " was an association for purposes of associational s tanding because it bore the " i ndicia of membership" of voting in, fina ncing , and serving on the board of the agency} . 16 abrogated by Congress. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). It is also settled that the Eleventh Amendment bars a recovery money of damages under 42 employees in their official capacity . U.S.C. 1983 § from state See Oliver v. Scott, 276 F . 3d 736, 742 (5th Cir. 2001); Aguilar v. Texas Deo't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Doe seeks monetary damages against Bailey To the extent that in this case, the Eleventh Amendment bars his claims against Bailey in her official capacity as a state employee. Nonethe l ess, Doe contends that official immunity does not apply to claims seeking prospective injunctive relief. It is true that an exception to Eleventh Amendment immunity exists for suits brought against individuals in their official capacity , as agents of the state or a state entity, where the injunctive in nature and prospective in effect. F. 3d at 1 054 (citing Ex parte Young, discussed at length above, relief sought is See Aguilar, 160 28 S . Ct. 441 (1980)). As PJL l acks standing in this case, and therefore its claims for injunctive relief are j urisdicti onally barred. A review of the pleadings and Plaintiffs' response indicates that Doe seeks injunctive relief in this lawsuit in the form of an injunction prevent ing TDCJ from returning him to the Estelle Unit and from retaliation for filing suit. This reques t does not name Bailey as the person with the a u thority to assign or transfer prisoners. Bailey represents in her motion that she does 17 not have the authority to transfer prisoners in or out of Estelle, and Doe does not controvert t his in his response nor does he argue for injunctive relief against Bailey separate from the injunction he seeks against TDCJ. Accordingly, the official capacity claims against Bailey are dismissed. III . Individual Capacity against Bailey Bailey also moves to dismiss the claims against her in her individual or personal capacity under Rule 12(b) (6) of the Federal Rules of Civil Procedure. 40 In particul ar , Bailey argues that Doe has failed to state a claim against her in her individual capacity and that she is entitled to qualified immunity from suit because Doe has not alleged facts establishing that she had any personal involvement in the assault which forms the basis of his complaint and he does not otherwise establish that she is liable as a supervisory official. A. Standard of Review Rule 12(b) (6) provides for dismissal of an action for "failure to state a claim upon which re lief can be granted . " FED. R. Crv. P. 12(b)(6). When a district court reviews the sufficiency of a complaint before it receives any evidence either by affidavit or 40 Doe's claims against Warden Bailey are quite similar in their premise and at times iden tical in their wording to the claims made by the plaintiff in Hastings v . Williams, Civ . A. No. 4:15-cv-00239, at Docket Entry No. 1 (S . D. Tex., Jan. 27, 2015) (Atlas, J .) . Both complaints are signed by the same attorney. The legal reasoning and analysis by the Honorable Nancy Atlas, who dismissed plaintiff Hastings's complaint against Bailey, are equally applicable here and require the like dismissal of Doe's action against Bailey for failure to state a claim. See id. at Docket Entry No. 11. 18 admission, its task is inevitably a l imited one . Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974) , abrogated on other grounds by Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982) . The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id. I n considering a motion to dismiss under Rule 12 (b) ( 6) , the district court construes the allegations in the comp l aint favorably to the pleader and accepts as true al l well-pled facts in the complaint. La Porte Construction Co. v . Bayshore Nat ' l Bank of La Porte, Tex., 805 F . 2d 12 54, 1255 (5th Cir. 1986). To survive dismissal, a comp l aint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v . Twombly , 127 S. Ct . 1955, 1974 (2007). "A c l aim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant misconduct a lleged." Ashcroft (2009) . Pleadings that are v. Iqbal , no more 129 S. than entit l ed to the assumption of truth." is liable for Ct. 1937 , conclusions Id. at the 1949 "are not 1950. While a complaint "does not need detailed factual allegations [the] al l egations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the compl aint are true (even if doubtful in fact)." Twombly, 127 S. Ct. at 1965 (citations and internal footnote omitted). 19 I I B. I Qualified Immunity Public officials acting within the scope of their authority generally are shielded from civil liability by the doctrine of qualified immunity. See Harlow, 102 S . Ct . at 2738 . Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law.u Malley v. (1986). unless As a result, "existing courts will not deny qualified immunity precedent placed constitutional question beyond debate.u S. Ct. 2074, 2083 106 S. Ct. 1092 , 1096 (2011). show: a plaintiff " ( 1) that violated a statutory or constitutional right , right was 'clearly established' at statutory or Ashcroft v. al - Kidd, 131 Therefore , overcome qualified irnrnuni ty must the seeking to the official and ( 2) that the the time of the challenged conduct .u Id. at 2080 (citat ion omitted). C. Supervisory Liability Personal involvement is an essential element of a civil rights cause of action in an individual capacity claim . Kellar, 950 F. 2d 2 90, 292 (5th Cir. 1992) See Murphy v. (plaintiff bringing a section 1983 action must "specify the personal involvement of each defendantu). In that respect, section 1983 does not create vicarious or respondeat superior liability for the wrongdoing of others. See Monell v. 2036-38 (1 978) vicarious ly Dep ' t of Social Servs. , 98 S . Ct. 2018, (holding that supervisory officials cannot be held l iabl e for their 20 subordinates ' actions under section 1983); see also Iqbal, 129 S. Ct . at 1 949 (" ' [S]upervisory liability' is a Absent misnomer . Government official, vicarious liability , his or her title notwithstanding , l iable for his or her own misconduct.") each is only (citation omitted); Al ton v. Texas A&M Univ ., 168 F.3d 196, 200 (5 th Cir . 1999) ("Supervisory officers . . . cannot be held liable under § 1983 for the actions . on any theory of vicarious liability."). of subordinates . Because vicarious liability is inapplicable in a section 1983 suit, "a plaintiff must plead that each Government-officia l defendant , through the official ' s own individual actions , Constitution." has violated the Iqbal, 129 S . Ct . at 1948. In this circuit , supervisory officials can be held liable only if the plaintiff demonstrates eithe r one of the fol l owing : (1) the supervisor's deprivation , persona l or (2) a invol vement in the constitutional sufficient causal connection between the supervisor ' s wrongfu l conduct and the deprivation. See Thompkins v. Be l t , 828 F. 2d 298 , 303- 04 (5th Cir. 1987) ; see also Southard v . Texas Bd . of Criminal Justice, 114 F.3d 539, 550 (5th Cir . 1997) ("[T ] he misconduct of the subordinate must be affirmatively linked to the action or liability exists inaction without of the overt supervisor ." ) . personal Supervisory partici pation in an offensive act only if the supervisory official implements a policy " so deficient constitutional that the rights ' policy and 'itself is ' the is a moving repudia tion force of of the constitutional vio l ation. '" Thompkins, 828 F.2d at 30 4 (quotations omitted) ; see also Porter v . Epps , 21 659 F.3d 440, 446 (5th Cir . 2011) ("A supervisory official may be held l iable [under § 1983] . . . if . . . he implements unconstitutional policies that causa ll y result in the constitutional in juryu) . Doe does not allege that Bailey had any personal involvement in the use of force that forms t he basis of his complaint. Likewise, Doe does not allege facts showing that Bailey implemented an unconstitutional violation. Instead, policy that resulted in a constitutional Doe's primary allegation is that Bailey is liable in her individual capacity as a supervisor because she was aware that there is an "atmosphereu of excessive force at the Estelle Unit, and she acquiesced to or permitted the use of force to occur . 41 This allegation fails to state a claim for two reasons. First, Doe alleges no more than knowledge or acquiescence in general misconduct acquiescence on a by subordinates. supervisor's part supervisory liability under § 1983. Mere is knowledge insufficient to and create See Iqbal , 129 S . Ct. at 1949 (rejecting an argument that government officials may be held liable merely because they had subordinate's misconduct) . knowledge or There must acquiesced be an between the injury and the defendant's conduct. F . 2d at 304; Cir. 1983) in affirmative th eir link See Thompkins, 828 see also Thompson v. Steele, 709 F . 2d 381, 382 (5th (citing Rizzo v. Goode, 423 U.S. 362, 371-72 (1976)). Absent facts establishing the defendant's persona l involvement or implementation of a constitutionally defective policy tha t pertains 41 Am. Complt . at <i<Jl 39-43. 22 I I to the specific incident that forms the basis of the comp l aint, Doe's claim against Bailey rests on a theory of vicarious liability or respondeat superior, which is not a basis for recovery under section 1983 . Second, Doe does not a llege facts in support of his assertion that Bailey was specifical l y aware that Pope or any of the other guards invo l ved in the incident with Doe posed a substantial risk of serious harm to others. Al t hough Doe makes general reference to previous gr i evances against Pope and other guards, he does not describe the i r content or indicate when t hey were filed. Ot her allegations by Doe, s u c h as those concerning the . Ruiz l itigation, are remote in time and do not Bailey . c l early involve actions taken by Doe does not o t herwise al l ege facts in support of his assertion that Pope and other offi cers have engaged in a pattern of misconduct simi l ar to the assau l t that forms the basis of t he complaint or that they have used violence "routine l y" while Bai l ey has occupied a supervisory role at t h e Estelle Unit. As such, Doe's bare assertion that Bailey knew that Pope or one of the other g uards involved in the a lleged incident posed a danger or that she was fu lly aware of " r ife" violence at the Estelle Unit are not entitled to be assumed true. these circumstances , See Iqbal, 129 S . Ct . a t 1 950 . Under Doe does not p l ead facts to establish that Bailey had notice that Pope posed a substantia l risk of serious harm to Doe or that she was de l iberate l y indifferent to such a risk i for purposes an Eighth , First, or Fourteenth Amendment viola t ion . 23 I See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Thus, Bailey is entitled See to qualified immunity from suit. Livingston, 381 F . App'x 477, 480 (5th Cir. 2010) Walker v. (concluding in a failure-to-protect case that supervisory officials were entitled to qualified immunity absent facts showing a likelihood of actual subjective awareness of the specific risk to the prisoner). Doe cites Williams v. Hampton, 562 F. App'x 192 , 197 (5th Cir. 2014) , to support his claim against Bailey, but the Fifth Circuit recently superseded its opinion in Williams, reversing i ts decision on rehearing en bane. Cir. July . 28, 2015) See Williams v . Hampton, 797 F.3d 276 (5th (en bane) (ho l ding t hat the prison guard's actions or omissions did not, as a matter of law, rise to the level of deliberate Circuit On rehearing en bane , indifference) . reiterated Punishmen ts Clause, tha t to "violate the Cruel a prison official must have a culpable state of mind the and Fifth Unusual 'sufficiently that state of mind is one of 'deliberate indifference' to inmate health or safety . '" Id. at 280 (citing Farmer, 114 S. Ct. at 1977) . Deliberate indifference is an "'extremely high standard to meet ' " because it "requires a showing that the prison official 'knows of and disregards' the substantial risk of serious harm facing the inmate." App'x 321, 326 (5th Cir. 2012) Morga n v. Hubert, 459 F. (quoting Farmer, 114 S. Ct. at 197 9) . Doe has failed to articulate facts demonstrating the requisite personal involvement or de l ibe rate i ndiffe rence on Bailey's part 24 and has failed to state a c l aim upon which relief may be granted against her in her individual capacity . Accordingly, Bailey ' s motion to dismiss under Rule 12(b) (6) will be granted. IV . ORDER Based on the foregoing , the Court ORDERS that the motion to dismiss ·GRANTED, filed by Warden Tracy Bailey and Plaintiffs' claims (Docket Entry No . against Defendant 10) Bailey is are DISMISSED on the merits; it is further ORDERED that all c l aims of Plaintiff Prison Justice League are DISMISSED without prejudice for lack of j u risdict ion ; it is further ORDERED that Defendant Bailey ' s Motion for Protective Order (Docket Entry No . 29) is DENIED as moot . The Clerk of Cour t wi l l provide a copy of this Order to all the parties of record . SIGNED at Houston , Texas, on September 2015. WERLE I N, JR . • ES DI STRICT JUDGE 25 I
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