Perez et al v. Perry et al

Filing 1386

ORDER DENYING 1348 Motion to Substitute Party. Signed by Judge Xavier Rodriguez, Chief Judge Orlando L. Garcia and Judge Jerry E. Smith (aej)

In the United States District Court
for the
Western District of Texas
SHANNON PEREZ, ET AL.
v.
GREG ABBOTT, ET AL.

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SA-11-CV-360

ORDER ON THE NAACP PLAINTIFFS’
MOTION TO SUBSTITUTE PLAINTIFF INTERVENOR
On this date, the Court considered the NAACP’s Motion to Substitute
Plaintiff-Intervenor (Docket no. 1348), the State’s Response (Docket no.
1350), and the NAACP’s reply (Docket no. 1355). After careful consideration,
the motion is DENIED.
BACKGROUND
Dr. Juanita Wallace (“Dr. Wallace”) was a resident of Dallas County
who brought claims as one of the NAACP plaintiffs in this lawsuit, alleging
various violations of her right to vote. Docket no. 900 at 4. She resided in
CD30 and HD100. Id. Notably, she alleges a violation of 42 U.S.C. § 1983. 1
Dr. Wallace passed away on September 4, 2016. Docket no. 1347 at 2.
By its present motion, the NAACP seeks to substitute Juan Wallace
(“Wallace”), Dr. Wallace’s daughter and heir, as a plaintiff-intervenor in this

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The NAACP’s live complaint alleges violations of the Voting Rights Act in addition to a cause of action
under § 1983. For purposes of the present motion, the parties only address Dr. Wallace’s § 1983 claim, but the
following analysis would be the same even if the NAACP is bringing VRA claims separately from the § 1983 claim.

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action. Docket no. 1348. None of the pleadings indicate where Wallace
resides, but at the April 27 status conference, the NAACP indicated that she
lives in Mesquite, Texas, which is outside of her mother’s districts.
DISCUSSION
Federal Rule of Civil Procedure 25(a)(1) provides “If a party dies and
the claim is not extinguished, the court may order substitution of the proper
party” (emphasis added). The parties dispute whether Dr. Wallace’s § 1983
claim was extinguished upon her death. The Court finds that the claim was
extinguished, making substitution inappropriate.
I.

Whether Dr. Wallace’s claim survives her death depends on Texas
state law, not federal common law.
Defendants cast this dispute as a simple one regarding Texas’ state
survivorship law. The NAACP argues that Texas law allows Dr. Wallace’s
claim to survive, and also invokes survivorship rules of federal common law.
Initially, the Court dispels of the NAACP’s reliance on federal common

law. The NAACP argues that
[t]he Supreme Court held that notwithstanding [its prior
ruling in Robertson v. Wegmann, 436 U.S. 584 (1978) that
survival of actions brought pursuant to 42 U.S.C. § 1983 is to be
determined by the law of the forum state], the deterrence goals of
§ 1983 may require a court to allow an action to survive the death
of the Plaintiff even if the action would not survive under state
law. See Carlson v. Green, 446 U.S. 14, 24–25 (1980). In holding
that the Plaintiffs’ claims survived under federal common law,
the Carlson Court explained: “Robertson expressly recognized
that to prevent frustrations of the deterrence goals of § 1983 . . .

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‘[a] state official contemplating illegal activity must always be
prepared to face the prospect of a § 1983 action being filed
against him.’” . . .
Thus, . . . if the Defendants’ [sic] were correct that Dr.
Wallace’s claims do not survive under Texas state law, federal
law considerations in the circumstances of this case would
nonetheless mandate allowing the substitution of [Wallace].
Docket no. 1355 at 3–4 (citations and some alterations original) (quoting
Robertson, 436 U.S. at 592).
This argument misreads Carlson, which was based on Bivens, not §
1983. The Carlson Court expressly relied on the fact that “Bivens actions are
a creation of federal law” to reason that “the question whether [the estate’s]
action survived [the decedent’s] death is a question of federal law.” Carlson,
446 U.S. at 23. Carlson adopted the circuit court’s reasoning that survival of
a Bivens claim despite a state survival statute to the contrary was a “federal
common law rule.” Id. at 24.
Unlike a Bivens claim, for which the Supreme Court fashioned a federal
common law rule for survivorship, § 1983 claims are governed by a statute
that turns to state law survivorship rules. “In 42 U.S.C. § 1988, Congress
‘quite clearly instructs [federal courts] to refer to state statutes’ when federal
law provides no rule of decision for actions brought under § 1983.” Bd. of
Regents of Univ. of State of N. Y. v. Tomanio, 446 U.S. 478, 484 (1980)
(alterations original) (quoting Robertson and citing Carlson). According to the

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Fifth Circuit, § 1988 “provides that state common law is used to fill the gaps
in administration of civil rights suits,” including those brought under § 1983.
Pluet v. Frasier, 355 F.3d 381, 383–84 (5th Cir. 2004). For survival purposes,
§ 1988 requires that “a party must have standing under the state wrongful
death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and
1988.” Id. (emphasis added). Because § 1988 expressly directs the Court to
Texas’ survival statute, federal common law provides no basis for the
survivorship of Dr. Wallace’s claim. The Court now turns to whether Texas
law allows the claim to continue.
II.

Under Texas law, Dr. Wallace’s § 1983 claim does not survive her
death.
The Texas Survival Statute provides that “[a] cause of action for

personal injury to the health, reputation, or person of an injured person does
not abate because of the death of the injured person or because of the death of
a person liable for the injury.” TEX. CIV. PRAC. & REM. CODE § 71.021(a).
Thus, Dr. Wallace’s claim is not extinguished and her daughter may be
substituted in this action only if her cause of action is for “personal injury to
[her] health, reputation, or person.” The Court holds that Dr. Wallace’s §
1983 voting rights claim is not such a claim.
Some courts have more broadly recognized that § 71.021 allows certain
civil rights claims to survive, particularly in the employment context. See,

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e.g., Upton Cty., Tex. v. Brown, 960 S.W.2d 808, 818 (Tex. App.—El Paso
1997, no pet.) (permitting survival of a § 1983 First Amendment retaliation
claim for damages under § 71.021); Hamilton v. Rogers, 573 F. Supp. 452, 452
(S.D. Tex. 1983) (permitting survival of Title VII claims for damages under §
71.021). But the NAACP does not provide any authority to show that a
violation of one’s voting rights is a “personal injury to [Dr. Wallace’s] health,
reputation, or person” within the meaning of the statute, and the Court has
found none. 2
Importantly, § 71.021 has only been extended to constitutional claims
seeking relief that can be meaningfully granted, such as constitutional claims
for damages. But where, as here, a voting rights plaintiff seeks prospective
injunctive relief based on a likelihood of future or continued injury, the
decedent cannot obtain relief. In this regard, Hamilton is illustrative. There,
the plaintiff brought a Title VII action for racial discrimination against his

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The NAACP quotes the following language from Caine v. Hardy, 943 F.2d 1406, 1411 (5th Cir. 1991)
(en banc): “[I]t is easy to conclude that all § 1983 actions are actions ‘for the recovery of damages for the
commission of an injury to the person’ within the scope of [a comparable Mississippi survival statute].” 943 F.2d at
1411 (emphasis added). There are several problems with applying this logic to this case. Initially, this language
appears to be dicta—before stating its rule, the Fifth Circuit analogized the specific employment law claim at issue
to a wrongful discharge claim, which it found was covered by the survival statute. Id. at 1410. Even if this statement
is not dicta, this Court is skeptical that the Fifth Circuit could have intended to pronounce such a broad, bright-line
rule. Finally, and most importantly, the Fifth Circuit spoke only of claims “for the recovery of damages.” Id. at
1411. As will be made clear, the Texas survival statute applies differently to claims for damages (as in Caine) than
claims for injunctive relief (as here). Indeed, the Caine court specifically drew this distinction—“Obviously, [the
deceased plaintiff’s] quest for reinstatement of his medical privileges does not survive his death. Whether his prayer
for money damages survives, on the other hand, is not such an easy question.” Id. at 1410.

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employer, seeking monetary and injunctive relief, 3 but died while the action
was pending. Hamilton, 573 F. Supp. at 452–53. On a motion substitute the
administratrix of the decedent’s estate, the court focused on § 71.021 because
“Texas does not have a survival statute tailored to cover the civil rights
guaranteed under Texas law, and no reported case has examined the survival
of civil rights under Texas law.” Id. at 453–54. The court allowed substitution
only for the decedent’s damages claims, and denied the motion to substitute
as to the claims for injunctive relief because “the injunctive relief requested
cannot be fashioned in a manner to benefit plaintiff’s successors.” Id. at 454.
As mentioned, the Fifth Circuit in Caine v. Hardy drew a similar distinction
while interpreting Mississippi’s survival statute. See 943 F.2d at 1410
(“Obviously, [the deceased plaintiff’s] quest for [injunctive relief in the form
of] reinstatement of his medical privileges does not survive his death.
Whether his prayer for money damages survives, on the other hand, is not
such an easy question.”). Here, Dr. Wallace sought only injunctive relief in
the challenged districts where she resided. Dr. Wallace did not seek damages.
Even if the Court were to order relief in Dr. Wallace’s districts, Dr. Wallace
cannot obtain or benefit from that relief due to her passing, just as the
deceased plaintiffs in Hamilton and Caine could not have possibly benefitted
post mortum from the injunctive relief that they sought. This logic is
“Plaintiff requested a preliminary and permanent injunction to enjoin the defendants from
continuing to abridge plaintiff's rights.” Hamilton, 573 F. Supp. at 454 n. 2.
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particularly forceful in this case, as Dr. Wallace’s daughter does not reside in
the challenged districts, such that even she cannot directly benefit from the
relief that her mother sought.
CONCLUSION
For the foregoing reasons, the NAACP’s Motion to Substitute PlaintiffIntervenor (Docket no. 1348) is DENIED.
It is so ORDERED.
SIGNED this 1st day of May, 2017.

________________/s/_______________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
ON BEHALF OF THE PANEL

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