Sias v. Davis et al

Filing 125

ORDER GRANTING 111 Motion to Dismiss ; GRANTING 116 Motion to Dismiss ; DISMISSING 117 Motion to Stay. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DONALD SIAS,
Plaintiff,

§
§
§
V.
§
§
GENNY DAVIS, Investigator,
§
Texas Board of Nursing, and
§
KATHERINE A. THOMAS,
§
Executive Director, Texas Board of Nursing, §
Defendants.
§

A-18-CV-306-RP

ORDER
Before the Court are Plaintiff’s Second Amended Complaint (ECF No. 87), brought pursuant
to 42 U.S.C. § 1983, Defendant Thomas’s Motion to Dismiss (ECF No. 111), Defendant Davis’s
Motion to Dismiss (ECF No. 116), and Plaintiff’s Responses to the Defendants’ Motions to Dismiss
(ECF Nos. 118 & 121). Also pending is Defendants’ Motion to Stay (ECF No. 117), and Plaintiff’s
Response and Objection to Defendants’ Motion to Stay. (ECF Nos. 118 & 120). Plaintiff, proceeding
pro se, was granted leave to proceed in forma pauperis in this matter. (ECF No. 4).
I. BACKGROUND
At the time he filed his initial complaint, naming additional defendants and filed in the
United States District Court for the Eastern District of Texas, Plaintiff was incarcerated at the Texas
Department of Criminal Justice Billy Moore Unit.1 The complaint alleged Defendant Georgette
Jacobs, a licensed vocational nurse, and Defendant Ryan White, a registered nurse and “nurse
manager,” denied Plaintiff adequate medical care when he was confined at the Bradshaw State Jail
in Henderson, Texas. (ECF No. 1 at 4). Plaintiff further alleged that, after an unsuccessful grievance

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Plaintiff is currently confined at the Terrell Unit in Rosharon, Texas.

of this issue, he filed a complaint against Ms. Jacobs and Mr. White with the Texas Board of
Nursing. Plaintiff asserted Defendant Genny Davis, an employee of the Texas Board of Nursing,
inadequately investigated his complaints; concluded the investigation without allowing Plaintiff to
present witnesses; and destroyed the record of the investigation, all in violation of his right to due
process of law. (ECF No. 1 at 3).2 The complaint also named the Texas Board of Nursing, Defendant
Davis’s employer, as a Defendant. (ECF No. 1 at 1).
On July 25, 2017, the original complaint was stricken from the record and Plaintiff was
ordered to file an amended complaint. (ECF No. 11). Plaintiff filed an Amended Complaint, (ECF
No. 14), again naming as defendants Ms. Jacobs, Mr. White, Ms. Davis, and the University of Texas
Medical Branch, but substituting Katherine Thomas, the Executive Director of the Texas Board of
Nursing, as a defendant in place of the Board itself. (ECF No. 14 at 1).3 Plaintiff filed a Second
Amended Complaint in this matter, naming only Defendant Davis and Defendant Thomas as
defendants. (ECF No. 87). Plaintiff sues both of these Defendants in their individual and official

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Defendant Thomas alleges: “Investigators for the Texas Board of Nursing determined that [Ms. Jacobs
and Mr. White] had not committed a violation of the Nursing Practice Act and/or Board Rules and the case
was administratively closed.” (ECF No. 111 at 2).
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The case was bifurcated by the United States District Court for the Eastern District of Texas on
March 12, 2018; that court ordered Plaintiff’s claims against Defendants Davis and Thomas be severed into
a separate action and that action transferred the Western District of Texas. In an order docketed March 14,
2018, the Eastern District of Texas dismissed Plaintiff’s claims against the University of Texas Medical
Board, dismissed Plaintiff’s claims for monetary relief against Defendants Jacobs and White in their official
capacities, dismissed Plaintiff’s claim of deliberate indifference against Defendant White, and dismissed the
retaliation claims against Defendants Jacobs and White. Accordingly, the only claim remaining in the Eastern
District of Texas is Plaintiff’s claim against Defendant Jacobs in her individual capacity for violation of
Plaintiff’s Eighth Amendment rights by not providing him with medication at the “pill window” in February
of 2016. Plaintiff’s and Defendant Jacobs’ cross-motions for summary judgment in that matter are pending.
See Sias v. Jacobs, et al., No. 6:17-CV-413 RWS JDL (E.D. Tex.).

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capacities, seeking declaratory relief and unspecified compensatory, punitive, and nominal damages.
(ECF No. 87 at 13-14).
Defendants move to dismiss Plaintiff’s claims pursuant to Rule 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure, arguing his claims against them in their official capacities for
monetary damages are barred by the Eleventh Amendment. Defendants also assert Plaintiff’s claims
against them in their individual capacities must be dismissed for failure to state a claim on which
relief may be granted.
II. LEGAL STANDARDS
A.

Standard Under Rule 12(b)(1)
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to

challenge the subject matter jurisdiction of the district court to hear a case. See Fed. R. Civ. P.
12(b)(1). The Federal Rules of Civil Procedure require this court to dismiss a cause for lack of
subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate
the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). Because a claim for monetary damages against a state official in her official capacity is a suit
against the official’s office, it is no different than a claim against the state. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Because
neither a state nor a state official acting in their official capacity is a “person” who may be sued
pursuant to section 1983, Will, 491 U.S. at 71, a claim for monetary damages against a state official
acting in their personal capacity may be dismissed pursuant to Rule 12(b)(1) for want of jurisdiction.
See Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir. 2014); Stotter v. University of Tex. at San
Antonio, 508 F.3d 812, 821 (5th Cir. 2007).
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B.

Standard Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a case for failure to state

a claim upon which relief can be granted. When evaluating a motion to dismiss under Rule 12(b)(6)
the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must
be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). To defeat a motion to dismiss
under Rule 12(b)(6), a plaintiff’s complaint “must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint may be dismissed if
a plaintiff fails to “nudge [his] claims across the line from conceivable to plausible.” Twombly, 550
U.S. at 570.
C.

42 U.S.C. § 1983
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
“The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of

a right ‘secured by the Constitution and the laws.’” Baker v. McCollan, 443 U.S. 137, 140 (1979);
Green v. State Bar of Tex., 27 F.3d 1083, 1087 (5th Cir. 1994). “By its terms, of course, the statute
creates no substantive rights; it merely provides remedies for deprivations of rights established
elsewhere.” Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (citing Baker, 443 U.S. at 140, 144

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n.3). Even after the plaintiff has established a deprivation of a constitutional right, he must still show
that the defendant was the “person” who caused the plaintiff’s deprivation. Id. at 817.
III. ANALYSIS
A.

Liability Under 42 U.S.C. § 1983
Plaintiff alleges Defendant Davis, assigned to investigate his complaints regarding his

medical care, “covered up” Ms. Jacobs and Mr. White’s violations of state regulations promulgated
by the Texas Board of Nursing. (ECF No. 87 at 4). Plaintiff alleges that the improper investigation
of his claims, the denial of a hearing on his claims, and the denial of his “right” to present witness
testimony in support of his claims, deprived him of a liberty interest and his rights to equal protection
and due process. (ECF No. 87 at 5-7, 9). He asserts he was “entitled to review the investigation
report before [Defendant Davis] destroyed the file” in violation of Texas Penal Code § 38.15, and
that the purported destruction of the investigation file also violated Texas Penal Code § 37.09,
prohibiting the tampering with or fabricating physical evidence. (ECF No. 87 at 6, 8). Plaintiff also
asserts Defendant Thomas violated “several” state and federal laws and his civil rights because she
failed to respond when informed of Defendant Davis’s actions. (ECF No. 87 at 10-11). Plaintiff
argues Defendant Thomas was personally involved in the violation of his rights because she failed
to supervise or train “her employees.” (ECF No. 87 at 12).
The first inquiry in any § 1983 suit is whether the plaintiff has been deprived of a right
‘secured by the Constitution and the laws.’” Baker, 443 U.S. at 140; Green, 27 F.3d at 1087. The
Supreme Court has held that a prisoner “has a liberty interest only in freedom from restraint . . .
imposing atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The Fifth Circuit, relying on Sandin, has
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held a prisoner has no federally protected liberty interest in having grievances investigated or
favorably resolved. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005); Propes v. Mays, 169
F. App’x 183, 184-85 (5th Cir. 2006). See also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996) (“[A] state’s inmate grievance procedures do not give rise to a liberty interest protected by the
Due Process Clause.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he constitution creates
no entitlement to grievance procedures or access to any such procedure voluntarily established by
the state.”). Because Plaintiff lacked a protected liberty interest in having the Texas Board of Nursing
complaint resolved to his satisfaction, due process protections were not triggered, and his claims that
Defendants violated his constitutionally-protected rights fail as a matter of law. Beall v. Johnson, 54
F. App’x 796, 2002 WL 31845615 at *1 (5th Cir. 2002) (citing Bulger v. United States Bureau of
Prisons, 65 F.3d 48, 50 (5th Cir. 1995)).
B.

Eleventh Amendment
Plaintiff’s claims against Defendants acting in their official capacities are claims against the

Texas Board of Nursing, a state entity. The Fifth Circuit has held that official-capacity suits seeking
monetary damages are in reality suits against the governmental entity. Goodman v. Harris Cnty., 571
F.3d 388, 396 (5th Cir. 2009). Because such suits are barred by the doctrine of sovereign immunity,
Plaintiff’s claim for monetary damages against Defendants acting in their official capacities are
barred by the Eleventh Amendment and must be dismissed pursuant to Rule 12(b)(1). Oliver v. Scott,
276 F.3d 736, 742 (5th Cir. 2002); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 2002). Because
Plaintiff does not have a constitutionally-protected right to any particular procedure as the
complainant in an investigation into his claims of improper nursing care, he is unable to establish

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at least one of the three requirements for asserting a claim for declaratory or injunctive relief against
Defendants acting in their official capacities, and these claims must be dismissed.
C.

Qualified immunity
Section 1983 claims against public officials in their individual capacities are subject to the

defense of qualified immunity. Foley v. University of Houston Sys., 355 F.3d 333, 338 (5th Cir.
2003). The doctrine of qualified immunity protects government officials from liability for civil
damages if their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214, 220 (5th Cir. 2018). In order to overcome the
qualified immunity defense, a plaintiff must allege a violation of a constitutional right and show that
the right was clearly established in the specific context of the case. Pearson v. Callahan, 555 U.S.
223, 235-36 (2009); Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). When a
state actor claims qualified immunity, a court must make two separate inquiries: “(1) whether the
defendant’s conduct violated a constitutional right, and (2) whether the defendant’s conduct was
objectively unreasonable in light of clearly established law at the time of the violation.” Terry v.
Hubert, 609 F.3d 757, 761 (5th Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Plaintiff claims Defendant Davis failed to adequately investigate and satisfactorily resolve
his complaints against the nurses who allegedly denied him medical care, in violation of his right to
due process of law. However, Plaintiff fails to appreciate that the due process protections afforded
in an investigative process that may result in punitive measures are directed toward the individual
who is being investigated, not the individual bringing the complaint. Furthermore, the narrowing of
prisoner due process protection announced in Sandin leaves Plaintiff without a federally-protected

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right to have his grievances investigated and resolved. Any right of that nature is grounded in state
law or regulation and the mere failure of an official to follow state law or regulation, without more,
does not violate the Constitution’s due process doctrine. See, e.g., Baker v. McCollan, 433 U.S. 137,
146-47 (1979); Murray v. Mississippi Dep’t of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990);
Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir. 1989). A prisoner has no constitutionally protected right
to have his grievances investigated or resolved because resolution of the grievance does not involve
a “significant hardship . . . in relation to the ordinary incidents of prison life.” Beall, 54 F. App’x
796, 2002 WL 31845615, at *1. See also Taylor v. Cockrell, 92 F. App’x 77, 78 (5th Cir. 2004)
(same).
IV. CONCLUSION
Plaintiff’s claims for monetary damages against Defendants in their official capacities are
barred by the doctrine of sovereign immunity and must be dismissed pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Additionally, taking all of the allegations alleged in the Second
Amended Complaint as true, Plaintiff fails to assert the violation of a federal constitutional right and,
accordingly, his claims against Defendants must be dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim on which relief may be granted. Because
it appears Plaintiff has been able to present his “best case” in his Second Amended Complaint, the
claims against Defendants are dismissed with prejudice. See Jones v. Greninger, 188 F.3d 322, 327
(5th Cir. 1999); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Defendants’ Motion to Stay (ECF No. 117) asks the Court to stay further proceedings in this
matter until the Court decides the Motions to Dismiss. Because those motions have now been
decided, the Motion to Stay will be dismissed as moot.

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Accordingly,
It is ORDERED that Defendant Thomas’s Motion to Dismiss (ECF No. 111) and Defendant
Davis’s Motion to Dismiss (ECF No. 116) are both GRANTED.
It is further ORDERED that Plaintiff’s Second Amended Complaint is DISMISSED WITH
PREJUDICE for failure to state a claim on which relief may be granted, pursuant to Rule 12(b)(6),
Federal Rules of Civil Procedure.
It is further ORDERED that Plaintiff is warned that if Plaintiff files more than three actions
or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state
a claim on which relief may be granted, then he will be prohibited from bringing any other actions
in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
It is further ORDERED that the Clerk of Court shall e-mail a copy of the Court’s Order and
Judgment to the keeper of the three-strikes list.
It is finally ORDERED that Defendants’ Motion to Stay (ECF No. 117) is DISMISSED as
moot.
SIGNED on December 14, 2018.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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