Ortega, Jr. v. Simpson et al

Filing 35

MEMORANDUM AND ORDER GRANTED 34 MOTION for Summary Judgment. This civil action is DISMISSED with prejudice. (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RODOLFO ORTEGA,
Plaintiff,
vs.
LIEUTENANT LEKISHA
HUNTER,
Defendant.

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May 20, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2811

MEMORANDUM AND ORDER
The plaintiff, Rodolfo Ortega (TDCJ #1522268), filed a prisoner civil rights
complaint under 42 U.S.C. § 1983, concerning the conditions of his confinement in
the Texas Department of Criminal Justice – Correctional Institutions Division
(“TDCJ”) [Doc. # 1]. After reviewing a more definite statement provided by Ortega
[Doc. # 18], the Court dismissed all of his claims except for his allegation that
Lieutenant Lekisha Hunter retaliated against him in violation of his constitutional
rights [Doc. # 19]. Lieutenant Hunter has now filed a motion for summary judgment
[Doc. # 34], arguing that Ortega’s claims against her fail as a matter of law. Ortega
has not filed a response and his time to do so has expired. After considering all of
the pleadings and the applicable law, the Court will grant Lieutenant Hunter’s
motion for summary judgment and dismiss this case for reasons set forth below.

I.

BACKGROUND
On July 27, 2017, Ortega was incarcerated by TDCJ at the Carol Vance Unit

when he submitted a grievance about conditions at the facility [Doc. # 1, at 7]. On
August 3, 2017, Senior Warden Troy Simpson conducted a walk-through of Ortega’s
dorm and allegedly warned Ortega to stop filing grievances. Id. Shortly thereafter,
Ortega claims that Lieutenant Hunter and two other officials harassed him by asking
him multiple questions. Id. On August 6, 2017, Ortega filed a grievance, alleging
that he had been harassed in retaliation for filing grievances. Id.
After complaining about the retaliation, Ortega contends that he was charged
with prison disciplinary violations for refusing to work and disobeying an order. Id.
After the disciplinary charges were filed, Ortega was transferred from the Carol
Vance Unit to the Jester III Unit and placed in pre-hearing detention on August 21,
2017. Id. Ortega claims that he was denied access to his personal property,
including personal hygiene item, religious materials, and legal books until
September 8, 2017. Id. at 7-8. Ortega blames Lieutenant Hunter for the deprivation
of his personal property during this time and claims that it was in retaliation for filing
grievances. Id. at 8. He requests nominal and unspecified punitive damages.1 Id.

Lieutenant Hunter argues that Ortega’s claims for monetary damages must be dismissed
because he does not demonstrate that a physical injury occurred as required to recover

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Lieutenant Hunter has filed a motion for summary judgment, arguing that she
is entitled to official immunity from any claim for monetary damages against her in
her official capacity as a state employee. [Doc. # 34, at 4]. Lieutenant Hunter argues
further that she is entitled to qualified immunity from claims against her in her
individual or personal capacity because Ortega does not show that she retaliated
against him or that she violated his constitutional rights. Id. at 8-12.
II.

STANDARD OF REVIEW
The defendant’s motion is governed by Rule 56 of the Federal Rules of Civil

Procedure, which provides that a reviewing court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if its
resolution in favor of one party might affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
“genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party. Id.
under 42 U.S.C. § 1997e(e), which precludes recovery of compensatory damages for
mental or emotional harm in the absence of physical injury [Doc. # 34, at 5]. Because
§ 1997e(e) does not prohibit claims for nominal or punitive damages, the Court does not
address this argument further. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999)
(holding that while § 1997e(e) does bar a prisoner from recovering compensatory damages
absent a showing of physical injury, it does not apply to prisoners seeking nominal or
punitive damages).
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If the movant demonstrates the absence of a genuine issue of material fact, the
burden shifts to the non-movant to provide “specific facts showing the existence of
a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). A reviewing court “must view the evidence introduced and
all factual inferences from the evidence in the light most favorable to the party
opposing summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417
(5th Cir. 2016). However, a non-movant cannot avoid summary judgment simply
by presenting “conclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation.”

Jones v.

Lowndes Cnty., Miss., 678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a non-movant
cannot demonstrate a genuine issue of material fact with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence).
III.

DISCUSSION
A.

Official Immunity

Unless expressly waived, the Eleventh Amendment bars an action in federal
court by a citizen of a state against his own state, including a state agency. See
Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002). The
Eleventh Amendment bars a suit for money damages against TDCJ, as a state
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agency, under 42 U.S.C. § 1983. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.
1998). The Eleventh Amendment also bars a suit for money damages against TDCJ
employees in their official capacity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2001); Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998). To the extent that Ortega sues Lieutenant Hunter for actions taken during the
course of her employment with TDCJ, the claims against her in her official capacity
as a state employee are barred by the Eleventh Amendment. Accordingly, the
motion for summary judgment on this issue will be granted.
B.

Qualified Immunity

Public officials acting within the scope of their authority generally are
shielded from liability for monetary damages by the doctrine of qualified immunity.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity shields
federal and state officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow, 457 U.S. at 818). “Qualified
immunity is a complete defense, and [a defendant is] entitled to summary judgment
on the basis of qualified immunity unless [the plaintiff] can show triable issues as to
whether [the defendant] violated a clearly established right of which a reasonable
officer would have been aware.” Brewer v. Hayne, 860 F.3d 819, 824 (5th Cir. 2017)
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(citing Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)).
In resolving questions of qualified immunity at summary judgment, courts
engage in a two-pronged inquiry. “The first asks whether the facts, ‘[t]aken in the
light most favorable to the party asserting the injury . . . show the officer’s conduct
violated a [federal] right.’” Brewer, 860 F.3d at 823 (quoting Tolan v. Cotton, 134
S. Ct. 1861, 1865 (2014)). “The second prong of the qualified-immunity analysis
asks whether the right in question was ‘clearly established’ at the time of the
violation.” Id. As discussed below, Ortega does not overcome Lieutenant Hunter’s
entitlement to qualified immunity because he does not demonstrate that she violated
his constitutional rights by engaging in improper retaliation.
C.

Retaliation

To prevail on a retaliation claim an inmate must establish (1) a specific
constitutional right; (2) the defendant’s intent to retaliate against the inmate for his
exercise of that right; (3) a retaliatory adverse act; and (4) causation. McDonald v.
Stewart, 132 F.3d 225, 231 (5th Cir. 1998); see also Bibbs v. Early, 541 F.3d 267,
270 (5th Cir. 2008). The Fifth Circuit regards claims of retaliation by prisoners with
skepticism. See Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). An inmate
must allege more than his personal belief that he is the victim of retaliation. See
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (citing Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)). Conclusionary allegations of
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retaliation are not sufficient to establish a claim. See id.
Lieutenant Hunter argues that she was not involved in the prison disciplinary
proceedings lodged against Ortega that resulted in his placement in pre-hearing
detention or the deprivation of personal property that occurred at the Jester III Unit
[Doc. # 34, at 7, 11]. In support, Lieutenant Hunter has provided records of the
disciplinary charges, which confirm that she was not involved in those proceedings.
The record shows that disciplinary charges were filed against Ortega at the
Carol Vance Unit on August 23, 2017, in Case No. 20170378581, for failure to obey
an order [Doc. # 34-1, at 16]. The charges were filed by Officer Okunde, who stated
in his Offence Report that he ordered Ortega to wait in the dayroom, but that Ortega
failed to obey [Doc. # 34-1, at 17]. At a disciplinary hearing held at the Jester III
Unit on September 6, 2017, the hearing officer concluded that Ortega was guilty as
charged and imposed the following punishment: loss of commissary privileges; loss
of contact visitation privileges for through October 1, 2017; and a reduction in
classification status from S3 to S4 [Doc. # 34-1, at 16].
According to Ortega, his personal property was returned to him on September
8, 2017, and he was released from prehearing detention on September 15, 2017, to
return to the Carol Vance Unit [Doc. # 1, at 8]. After Ortega returned to the Carol
Vance Unit, he was charged with another disciplinary violation for failing to turn
out for work on October 10, 2017, in Case No. 20180038617 [Doc. # 34-1, at 24].
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Those charges were filed by Officer Dorsey, who stated in his Offence Report that
Ortega failed to obey an order to report for work without a legitimate reason [Doc.
# 34-1, at 25]. The disciplinary hearing officer found Ortega guilty as charged and
imposed the following punishment: loss of commissary and recreational privileges
for 45 days; loss of contact visitation privileges through November 20, 2017, and a
reduction in classification status from S4 to L1 [Doc. # 34-1, at 24].
Ortega does not demonstrate Lieutenant Hunter had any personal involvement
with the disciplinary charges filed against him in either Case No. 20170378581 or
20180038617. Likewise, Ortega does not show that Lieutenant Hunter caused the
temporary deprivation of personal property that occurred at the Jester III Unit, while
he was in prehearing detention for Case No. 20170378581. Ortega’s bare allegation
that the disciplinary charges were filed as the result of retaliation are not sufficient
to rebut a properly supported motion for summary judgment. See McDonald, 132
F.3d at 231; see also Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (“Mere
conclusionary [sic] allegations of retaliation will not withstand a summary judgment
challenge.”).
Ortega, who has not filed a response to the motion for summary judgment
filed by Lieutenant Hunter, fails to raise a genuine issue of material fact on whether
he was subjected to disciplinary charges and deprived of his personal property as the
result of improper retaliation. Because Ortega does not establish that he was
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retaliated against in violation of his constitutional rights, his allegations are not
sufficient to overcome Lieutenant Hunter’s assertion of qualified immunity.
Accordingly, Lieutenant Hunter is entitled to summary judgment on this issue.
IV.

CONCLUSION AND ORDER
Accordingly, the Court ORDERS as follows:
1. The Motion for Summary Judgment filed by Lieutenant Lekisha Hunter
[Doc. # 34] is GRANTED.
2. This civil action is DISMISSED with prejudice.
The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas on May 20, 2019.

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NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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