Stuart v. Burgin

Filing 79

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: granting 72 MOTION to Dismiss , 76 Memorandum and Recommendations, dismissing 34 Plaintiff's Third Amended Complaint. Plaintiff's request for discovery is denied as moot. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROY ALAN STUART,
Plaintiff,
VS.
WILLIAM BURGIN, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-114
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant Brad Livingston’s motion to dismiss
Plaintiff’s § 1983 claims. D.E. 72. Defendant Livingston is the Executive Director of the
Texas Department of Criminal Justice (TDCJ).

On March 18, 2014, United States

Magistrate Judge B. Janice Ellington submitted a Memorandum and Recommendation
recommending that Defendant Livingston’s motion be granted. D.E. 76. Plaintiff filed
his objections on March 26, 2014. D.E. 77. Plaintiff’s objections are set out and
discussed below.
First, Plaintiff clarifies that he is suing Defendant Livingston in his individual as
well as official capacity. Supreme Court and Fifth Circuit precedent firmly establish that
the Eleventh Amendment bars any suit for money damages against Defendant Livingston
in his official capacity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 44 (1996)
(“The Eleventh Amendment presupposes that each State is a sovereign entity in our
federal system and that it is inherent in the nature of sovereignty not to be amenable to
the suit of an individual without a State's consent.”); Kentucky v. Graham, 473 U.S. 159,
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166 (1985) (stating that a suit against a state official in his official capacity is to be
treated the same as a suit against the state); Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2002) (“[T]he Eleventh Amendment bars recovering § 1983 money damages from TDCJ
officers in their official capacity.”). To the extent Plaintiff objects to the dismissal of
claims against Defendant Livingston in his official capacity for money damages, the
objection is OVERRULED.
Second, Plaintiff argues that Defendant Livingston, as the Executive Director of
the TDCJ, should not be able to shirk responsibility for the “torture” occurring in Texas
prisons simply by blaming his subordinates or claiming not to have personal knowledge
of certain situations that, in Plaintiff’s opinion, an Executive Director should be privy to.
D.E. 77, p. 2-3.
In response to the Magistrate Judge’s conclusion that Defendant Livingston had no
personal involvement in the acts and omissions Plaintiff complains of, Plaintiff’s
objections specifically allege that Defendant Livingston “did in fact participate in the
event denying Plaintiff his much needed medical [care] by failing to ensure that the funds
were available to pay for the [care].” D.E. 77, p. 2.

As evidence that the cause of the

alleged denial of medical care was a lack of funds, Plaintiff states that a nurse told him
that the reason his medical appointment was cancelled was because of budget problems.
D.E. 77, p. 2. Plaintiff also references a medical report to the same effect that he claims
was sent to him by the Attorney General’s office. D.E. 77, p. 2.
Even with his new allegation of participation, Plaintiff still fails to state a claim
under § 1983 because formulaic language and unsubstantiated assertions alone are not
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sufficient to survive a motion to dismiss. “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Aschroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers ‘labels and conclusions’ or a formulaic recitation of the
elements of a cause of action will not do.” Id. A complaint will not suffice “if it tenders
naked assertions devoid of further factual enhancement.”

Id.

A plaintiff must

demonstrate “a reasonably founded hope that [he] would be able to make a case.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 562 (2007).
Plaintiff’s complaint is comprised of precisely the type of bald assertions and
unsubstantiated conclusions that Iqbal and Twombly preclude. Plaintiff offers no support
for his suspicions that Defendant Livingston was a direct participant in any decision that
affected Plaintiff’s medical care or the lack thereof. The evidence Plaintiff references
would only indicate the existence of a budget problem—not any personal involvement by
Defendant Livingston in being deliberately indifferent to Plaintiff’s serious medical needs
by failing to provide sufficient funds for inmate care. Accordingly, Plaintiff’s allegations
are insufficient to satisfy the threshold requirements supplied by the Federal Rules and
Supreme Court precedent.
To the extent Plaintiff continues to rely on Defendant Livingston’s role as TDCJ’s
Executive Director as a basis for liability, such an imposition is squarely precluded by
Fifth Circuit precedent. See e.g., Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(“[Section] 1983 does not give a cause of action based on the conduct of subordinates.
Personal involvement is an essential element of a civil rights cause of action.”);
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Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001) (“Under section 1983,
supervisory officials are not liable for the actions of subordinates on any theory of
vicarious liability.”).
Because Plaintiff’s allegation that Defendant Livingston did not provide sufficient
funds for his medical care is conclusory and unsupported by any facts and because
vicarious liability is not a basis for relief in a § 1983 claim, Plaintiff’s allegations fail to
state a claim for relief against Defendant Livingston. Accordingly, Plaintiff’s second
objection is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendant Livingston’s motion to
dismiss (D.E. 72) is GRANTED, Plaintiff’s third amended complaint (D.E. 34) is
DISMISSED, and Plaintiff’s request for discovery is DENIED as moot.

ORDERED this 20th day of May, 2014.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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