Leeper v. Travis County Sheriff's Office et al

Filing 47

ORDER re 36 Sealed Motion for Summary Judgment filed filed by Prince, Travis County, Texas, Joshua J. Johnson, Amy Smith, Claudia Garcia, Greg Hamilton, Bradley Ellis Payne. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROCKY LEEPER,
Plaintiff,
v.
TRAVIS COUNTY, TEXAS, et al.,
Defendants.

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1:16-CV-819-RP

ORDER
Before the Court is a motion for summary judgment, (Dkt. 36), filed by Defendants Travis
County, Texas (“Travis County”), Greg Hamilton (“Hamilton”), Joshua Johnson (“Johnson”),
Bradley Payne (“Payne”), Amy Smith (“A. Smith”), Claudia Garcia (“Garcia”), Nurse Prince
(“Prince”), Dawn Kline (“Kline”), and Kathryn Smith (“Smith”) (collectively, “Defendants”).
Having considered the parties’ arguments, the evidence, and the relevant law, the Court will grant
the motion in part and permit Leeper to file a supplemental response.
I. BACKGROUND
Plaintiff Rocky Leeper (“Leeper”) was incarcerated in the Travis County Correctional
Complex for more than two months in the summer of 2014. (Mot. Summ. J., Dkt. 36, at 3). Leeper
is a person with disabilities who uses a wheelchair to get around. (Id.). In his amended complaint,
Leeper alleges that Defendants committed a varied collection of abusive acts over the course of his
incarceration, such as denying him necessary medical care, using excessive force, and housing him in
a unit that did not accommodate his disability. (Am. Compl., Dkt. 30, at 2–9). Some of these
allegations are isolated incidents involving individual defendants; others allege concerted action by
multiple defendants. (Id.). Out of these allegations, Leeper asserts a number of different causes of
action, including claims under 42 U.S.C. § 1983 (“Section 1983”), the Americans with Disabilities
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Act, 42 U.S.C. §§ 12102 et seq. (“ADA”), and an unidentified provision of the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”). (Id. at 6–8, 9-13).
Defendants ask the Court to grant summary judgment in their favor on each of Leeper’s
claims. (Mot. Summ. J., Dkt. 36, at 46). Defendants assert qualified immunity with respect to each of
Leeper’s claims. (See Am. Answer, Dkt. 33, ¶ 85; Mot. Summ. J., Dkt. 36, at 7–8). Leeper filed an
untimely response, which the Court will consider in light of his pro se status. See W.D. Tex. Loc. R.
CV-7(e)(2) (requiring parties to file responses to dispositive motions within 14 days); Johnson v.
Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (disapproving of an automatic grant of a dispositive
motion for failure to comply with local rules).
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “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). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the
outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
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.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The “burden of production at trial ultimately rests on the nonmovant” and the movant
must merely show an “absence of evidentiary support in the record for the nonmovant’s case.”
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010). The nonmoving party must then
come forward with specific facts showing that there is a genuine issue for trial. Id. There is “no issue

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for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The nonmovant “must identify specific evidence in the record and articulate the manner in
which that evidence supports that party’s claim.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task
Force, 379 F.3d 293, 301 (5th Cir. 2004) (citation omitted). The nonmoving party cannot survive a
summary judgment motion by resting on the mere allegations of its pleadings. Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010); see also Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991)
(“Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment
evidence.”). Summary judgment “cannot be granted by default even if there is a complete failure to
respond to the motion, much less when an attempted response fails to comply with Rule 56(c)
requirements.” Fed. R. Civ. P. 56(e) advisory committee’s note. Rather, if a party fails to properly
address the opposing party’s assertion of fact, a court should take an action designated by Rule 56(e).
Fed. R. Civ. P. 56(e). “The choice among possible orders should be designed to encourage proper
presentation of the record,” and courts should “take extra care with pro se litigants, advising them of
the need to respond and the risk of losing by summary judgment if an adequate response is not
filed.” Fed. R. Civ. P. 56(e) advisory committee’s note.
III. DISCUSSION
Defendants have met their initial burden under Rule 56: in their motion for summary
judgment, which applies to each of Leeper’s claims against each Defendant, they have informed the
Court of the basis for its motion and identified the portions of the pleadings that demonstrate the
absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Accordingly, the burden
shifts to Leeper to identify facts that demonstrate a genuine issue of material fact for trial. Cuadra,
626 F.3d at 812. Leeper cannot rely on the allegations in his unsworn amended complaint, nor on
statements made in his unsworn response to Defendants’ motion. Duffie, 600 F.3d at 371; Larry, 929
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F.2d at 211 n.12. Leeper’s summary judgment evidence is therefore limited to the fifteen-page
attachment to his response. (Dkt. 40-1). The few documents in the attachment do not address most
of the facts asserted in Defendants’ motion.
However, Leeper’s unsworn amended complaint and response do contain assertions of fact
that, if they were competent summary judgment evidence, would dispute many of the facts asserted
in Defendants’ motion. Because Leeper has failed to address most of Defendants’ assertions of fact
with appropriate summary judgment evidence, the Court has several options under Rule 56(e). In
order to promote a proper presentation of the record and taking care to advise a pro se litigant of the
need to respond appropriately, the Court will give Leeper the opportunity to properly address the
facts in Defendants’ motion that his unsworn amended complaint and response fail to address.
However, the Court will address several arguments in Defendants’ motion whose resolution
does not turn on factual determinations. Defendants ask the Court to grant summary judgment on
Leeper’s ADA causes of action against individual defendants. (Mot. Summ. J., Dkt. 36, at 6–7). Title
II of the ADA, which applies to public services, 42 U.S.C. § 12132, does not allow actions against a
person in his individual capacity. See DeLeon v. City of Alvin Police Dep’t, No. CIV.A. H-09-1022, 2009
WL 3762688, at *3 (S.D. Tex. Nov. 9, 2009) (concluding that Title II does not impose liability
against government officials in their individual capacities); Albritton v. Quarterman, No. 6:08CV268,
2009 WL 585659, at *10 (E.D. Tex. Mar. 6, 2009) (same); see also Lollar v. Baker, 196 F.3d 603, 609
(5th Cir. 1999) (holding that a plaintiff cannot bring a Rehabilitation Act claim against a government
official in her individual capacity); Pena v. Bexar Cty., Texas, 726 F. Supp. 2d 675, 689 (W.D. Tex.
2010) (“District courts in the Fifth Circuit have uniformly applied Lollar to claims under the
ADA.”). Accordingly, the Court agrees that summary judgment is appropriate with respect to
Leeper’s ADA causes of action against Defendants A. Smith, Johnson, Garcia, Payne, and Prince in
their individual capacities. Similarly, Leeper’s HIPAA claim against Prince must be dismissed
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because “there is no private cause of action under HIPAA.” Acara v. Banks, 470 F.3d 569, 572 (5th
Cir. 2006).
VII. CONCLUSION
For these reasons, the Court ORDERS that Defendants’ Motion for Summary Judgment,
(Dkt. 36), is GRANTED IN PART. Specifically, Defendants’ motion is granted with respect to
Leeper’s ADA claims against persons in their individual capacities and Leeper’s HIPAA claim
against Prince. Those claims are DISMISSED WITH PREJUDICE.
With respect to Leeper’s remaining claims, Leeper shall be given the opportunity to properly
address the facts in Defendants’ motion that his unsworn amended complaint and response fail to
address. Leeper shall file a supplemental response to Defendants’ motion on or before June 22,
2018. That response shall be no longer than 15 pages, excluding exhibits. The Court will not
consider arguments made on pages that exceed that limitation. Defendants shall file a supplemental
reply, if at all, within seven days of Leeper’s supplemental response. That reply shall be no longer
than 10 pages, excluding exhibits. The Court will not consider arguments made on pages that
exceed that limitation.
Finally, in light of this supplemental briefing schedule, the jury trial currently scheduled for
July 9, 2018, is VACATED. The Court will reschedule the trial at a later date following the parties’
supplemental briefing.
SIGNED on May 31, 2018.
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ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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