Davis v. Thaler et al
Filing
63
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR RULE 7(a) REPLY re 52 .(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TEDDY NORRIS DAVIS, ET AL.,
Plaintiffs,
v.
RICK THALER, ET AL.,
Defendants.
§
§
§
§
§
§
CAUSE NO. 2:12-cv-166
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR RULE 7(a) REPLY
Pending is defendant Madeline Ortiz’s motion for Rule 7(a) reply (D.E. 52); neither
of the two plaintiffs has filed an objection to the motion.1 For the reasons stated herein, Ms.
Ortiz’s Rule 7(a) motion is granted. Plaintiff s are ordered to answer the questions set forth
herein within thirty (30) days of the date of entry of this Order and to serve a copy on Ms.
Ortiz.
I. Background
In this prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, plaintiffs Teddy
Norris Davis and Robbie Dow Goodman allege that defendants have violated, and continue
to violate, their right to practice their Native American religion, in violation of provisions of
the Religious Land Use and Institutionalized Persons Act (“RLUPIA”), 42 U.S.C. § 2000cc,
and the First Amendment. Plaintiffs seek injunctive and declaratory relief from the Texas
Department of Criminal Justice, Criminal Institutions Division (“TDCJ-CID”) to: (1) hire
more Native American chaplains; (2) have security personnel available to supervise the
1
Pursuant to Local Rule 7.4, failure to respond is taken as a representation of no opposition.
Native American religious ceremonies until such time that more Native American chaplains
can be hired; (3) allow plaintiffs to grow their hair or allow them to grow a kouplock; (4)
smoke the ceremonial pipe at pipe ceremonies; (5) wear their medicine bags at all times; (6)
damages for violations of their First Amendment rights; and (7) and court costs. (See D.E.
1, 16).
Plaintiffs have sued Ms. Ortiz in both her individual and official capacities. (D.E. 16
at 2). Plaintiffs identify Ms. Ortiz as the Director of Rehabilitative Programs for the TDCJ,
and claim that the Chaplaincy Department falls under her supervision. Plaintiffs contend that
she approved the decision to prohibit traditional pipe ceremonies, in conflict with McConnell
Unit policy, and in violation of RLUIPA and the First Amendment. Plaintiff Davis also
testified that he wrote letters to Ms. Ortiz concerning the pipe ceremonies, but that she did
not answer his inquiries and simply forwarded them to defendant Clint Morris. (See D.E. 26,
June 21, 2012 Evidentiary Hearing Transcript at p. 31, line 8 - p. 32, line 10).
On August 27, 2012, Madeline Ortiz filed her answer and raised the defense of
qualified immunity. (D.E. 30).
II. Rule 7(a) Request
In her request for a Rule 7(a) reply, Madeline Ortiz points out that, except for plaintiff
Davis’s brief testimony at the evidentiary hearing, neither Davis nor Goodman has stated
with any specificity in either the original or amended complaint any facts that explain what
acts or omissions of Madeline Ortiz in her individual capacity violated plaintiffs’ First
Amendment rights. Indeed, Ms. Ortiz contends that plaintiffs’ claims against her arise solely
2
from her supervisory role in the TDCJ, which fails to state a cognizable § 1983 claim. See
Monell v. Department of Social Services, 436 U.S. 658, 690-92 (1978) (section 1983 will not
support a claim based on respondeat superior or vicarious liability.”).
III. Discussion
Rule 7(a) of the Federal Rules of Civil Procedure authorizes the district court to
“order a reply to an answer.” The Fifth Circuit has held en banc that an individual defendant
who pleads immunity to a federal civil action is entitled to have the plaintiff ordered to reply
under Rule 7. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). The
Schultea Court stated:
Such an order will require the Plaintiff to reply to that
[immunity] defense in detail. By definition, the reply must be
tailored to the assertion of qualified immunity and fairly engage
its allegations... . [The] Plaintiff [must] support his claim with
sufficient precision and factual specificity to raise a genuine
issue as to the illegality of the defendant’s conduct at the time of
the alleged acts.
Id., 47 F.3d at 1434. “A plaintiff cannot overcome a qualified immunity defense with mere
conclusory allegations [but] must plead specific facts with sufficient particularity ... to negate
the defense of qualified immunity.” Burns-Toole v. Byrne, 11 F.3d 1270, 1274, cert. denied,
512 U.S. 1207 (1994) (citing Elliott v. Perez, 751 F.2d 1472, 1479, 1482 (5th Cir. 1985)).
The Fifth Circuit continues to require that plaintiffs suing governmental officials in
their individual capacities must allege specific conduct giving rise to a constitutional
violation. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). That
is, in order to survive, § 1983 actions against defendants in their individual capacities “must
3
be pled with factual detail and particularity, not mere conclusory allegations.” Id.
Ms. Ortiz has raised the defense of qualified immunity. (D.E. 30). She argues that,
encompassed within this defense, is the right to be informed of the allegations against her in
a fact- specific way. As it stands now, plaintiffs have failed to identify any specific date,
time, or place in which Ms. Ortiz personally denied either plaintiff the right to practice his
religion. So that Ms. Ortiz might properly respond to plaintiffs’ allegations, plaintiffs are
each hereby ORDERED to answer the following questions within thirty (30) days of the
date of entry of this Order:
(1)
List all dates (and times, if available) that you personally met with Ms. Ortiz
regarding any aspect of the practice of your Native American beliefs, including
pipe ceremonies, kouplocks, possession of medicine bags, and chaplain
availability. Describe the meetings with as much detail as you can remember,
such as if you were in your cell, or her office. Were other inmates around that
can confirm the conversation took place?
(2)
List all dates that you corresponded with Ms. Ortiz, via letter, grievances, I60s, or any other manner concerning the practice of your Native American
religion. Submit a copy of the correspondence if available, and if not, describe
the nature of the communication. Describe any response you received from
Ms. Ortiz or any other prison official.
(3)
In what manner do you believe Ms. Ortiz acted unreasonably regarding your
First Amendment rights? What actions do you believe she should have taken?
Label your pleading “Rule 7(a) Reply.” In addition, include the following declaration
at the end of your reply. “I declare, under penalty of perjury under the laws of the United
States of America, that the foregoing is true and correct. See 28 U.S.C. § 1746.” The
declaration must be dated and signed, and each plaintiff must submit his own individual Rule
7(a) reply.
4
In lieu of complying with this order, should either plaintiff desire to dismiss his First
Amendment claims against Madeline Ortiz in her individual capacity, he may sign and return
the attached motion for voluntary dismissal.
ORDERED this 15th day of November, 2012.
____________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
5
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TEDDY NORRIS DAVIS, ET AL.,
Plaintiffs,
v.
RICK THALER, ET AL.,
Defendants.
§
§
§
§
§
§
CAUSE NO. 2:12-cv-166
MOTION FOR VOLUNTARY DISMISSAL
I, (circle one) Teddy Norris Davis / Robbie Dow Goodman, a plaintiff herein, seek
voluntary dismissal of my First Amendment claims against Madeline Ortiz in her individual
capacity pursuant to Rule 41(a)(2), Fed. R. Civ. P., because I do not want to prosecute these
claims against her. I understand that this is a dismissal with prejudice.
________________________________
Plaintiff
________________________________
Date
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?