Hoffman v. Thaler et al
Filing
144
MEMORANDUM OPINION AND ORDER - STRIKING 141 Motion for Reconsideration and in the alternative is DENIED. This case is DISMISSED WITH PREJUDICE and all other motions are DENIED AS MOOT - 140 Motion, 143 MOTION 135 Motion. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JASON HOFFMAN,
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Plaintiff
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v.
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RICK THALER,
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Texas Department of Criminal Justice
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Correctional Institutions Division Director, §
ET AL.,
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Defendants
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MEMORANDUM
Civil Action
No. SA-11-CA-1083-XR
Consolidated With Civil Action
Nos. SA-12-CA-148 and SA-12-CA-149
OPINION
Before the Court are Plaintiff Jason Hoffman’s consolidated 42 U.S.C. § 1983 Civil Rights
Complaints against more than forty State and County officials and officers claiming he was denied
due process in a 2011 parole revocation proceeding that was later dismissed and he complains about
the conditions of his custody at the Bexar County Adult Detention Center (BCADC) during that
time. Also before the Court is the Bexar County Defendants’ Motion to Dismiss (see Case 12-CA149 Entry # 9) for failure to state a claim pursuant to Fed. R. Civ. P 12(b)(6). In a previous Order
(Entry # 140), this Court consolidated these cases, dismissed Hoffman’s claims against various State
officials, and directed Hoffman to show cause why the parole officers and officials, the Bexar
County Defendants, and all other remaining Defendants should not be granted summary judgment.
This Court now addresses the remaining claims.
I.
In response to this Court’s Order directing Hoffman to show cause why the remaining
Defendants should not be granted summary judgment, Hoffman filed a Motion for Reconsideration.
(Entry # 141.) Because of Hoffman’s previous voluminous filings and to clarify the issues this Court
specifically reminded Hoffman (see Entry # 140 at 7) that any further filings should comply with
Local Court Rule CV-10 which requires that filings be double-spaced and not exceed twenty pages.
Hoffman’s Motion for Reconsideration is single-spaced and fifty pages.
The Motion for
Reconsideration shall be stricken for failing to comply with Local Rule CV-10. In the alternative
the Motion shall be denied; the Motion’s allegations are vague and conclusory and fail to present an
error of law or fact warranting reconsideration.
II.
To state a claim pursuant to Fed. R. Civ. P. 12(b)(6), plaintiff’s allegations must present
“enough facts to state a claim to relief that is plausible on its face,” i.e. the “[f]actual allegations must
be enough to raise a right to relief above the speculative level,” and “labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A conclusory complaint, one
that fails to refer to material facts, may be dismissed for failure to state a claim. See Rios v. City of
Del Rio, 444 F. 3d 417, 426 (5th Cir. 2006), cert. denied, 549 U.S. 825 (2006).
To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and show the alleged deprivation was committed by a
person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed.
2d 40 (1988). Hoffman’s Complaints fail to allege the violation of Hoffman’s constitutional or
federal rights, and thus Hoffman’s Complaints fail to state a claim.
Hoffman alleges the parole officers and officials denied him due process by detaining him on
a parole revocation warrant notwithstanding the related criminal proceedings were dismissed. Parole
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officials are entitled to absolute immunity arising from proceedings to revoke parole or to impose
additional conditions. See Cousin v. Small, 325 F. 3d 627, 635 (5th Cir. 2003), cert. denied, 540
U.S. 826 (2003); Hulsey v. Owens, 63 F. 3d 354, 356-57 (5th Cir. 1995); see also Coleman v. Dretke,
395 F. 3d 216, 219, n.2 (5th Cir. 2004), cert. denied, 546 U.S. 938 (2005). Therefore Hoffman failed
to state a claim against the parole hearing officer and other parole officials. Furthermore, the parole
proceedings and criminal proceedings were separate proceedings, and Hoffman failed to allege there
was not probable cause for his continued detention pursuant to the parole revocation warrant, and
thus he failed to allege a due process claim.
Hoffman also alleges his due process rights were violated when he was “negligently” held
beyond his “discharge date.” If this is a restatement of Hoffman’s claim that his detention pursuant
to the parole revocation warrant was unlawful, the claim is without merit for the reasons previously
discussed. Furthermore, negligence is not a basis for a civil rights action under § 1983. See Daniels
v. Williams, 474 U.S. 327, 329-336, 106 S. Ct. 662, 88 L. Ed.2d 662 (1986). If this claim is not a
restatement of the previously discussed claim, the claim is vague and conclusory, and therefore fails
to state a claim. Cf. Vulcan Materials v. City of Tehuacana, 238 F. 3d 382, 387 (5th Cir. 2001)
(“Here, the complaint did not contain a short and plain statement of the claim, only legal conclusions
of such generality as to fail to give fair notice.”).
Hoffman next complains BCADC staff interfered with his mail because it contained “terrorist
threats.” These allegations fail to state a claim. Prison regulations that infringe on prisoners’ First
Amendment Rights are valid “if it is reasonably related to legitimate penological interests.” O’Lone
v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987). Because of
security concerns and to prevent abuse of “legal mail” privileges, jails and detention facilities are
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authorized to inspect prisoner mail and this policy serves a legitimate and reasonable penological
interest. See Brewer v. Wilkinson, 3 F. 3d 816, 824 (5th Cir. 1993) (“[I]n determining the
constitutional validity of prison practices that impinge upon a prisoner's rights with respect to mail,
the appropriate inquiry is whether the practice is reasonably related to a legitimate penological
interest.”), cert. denied, 510 U.S. 1123 (1994). There is no constitutional right to use the mail for
“terrorist threats.”
Hoffman also complains BCADC has a policy of monitoring detainee’s telephone calls, which
Hoffman claims violates his right to counsel. This claim is vague and conclusory and Hoffman fails
to allege how he was harmed by this policy, and thus he failed to state a claim. In any event, the
monitoring of prisoner’s phone calls serves the obvious penological interest of promoting
institutional security and is constitutional. See U.S. v. Amen, 831 F. 2d 373, 379 (2d Cir. 1987), cert.
denied, 485 U.S. 1021 (1988); Martin v. Tyson, 845 F. 2d 1451, 1456-58 (7th Cir. 1988), cert.
denied, 488 U.S. 863 (1988). This policy does not offend Hoffman’s right to counsel because he had
other means of communicating with his attorney, such as in person meetings.
Hoffman’s suit against the BCADC officers for denying his grievances does not state a claim.
Failure to resolve his grievances to his satisfaction is not a basis for a civil rights claim. See Geiger
v. Jowers, 404 F. 3d 371, 374 (5th Cir. 2005).
Hoffman alleges the Bexar County Defendants violated his First Amendment rights by refusing
his request for a King James Bible, though he acknowledges he was furnished a Bible, while he was
in BCADC custody. He also claims that refusing his request for a King James Bible, while
furnishing other Bibles on request, violates his equal protection rights. These claims are without
merit. BCADC is not required to furnish prisoners with religious materials. See Frank v. Terrell,
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858 F. 2d 1090, 1090-91 (5th Cir. 1988). The First Amendment does not require that every religious
group regardless of size be treated similarly. See Baranowski v. Hart, 486 F. 3d 112, 123 (5th Cir.
2007), cert. denied, 552 U.S. 1062 (2007).
Hoffman failed to allege purposeful religious
discrimination, and therefore has no basis for a claim. Id. Hoffman was free to obtain a King James
Bible on his own.
Hoffman next complains BCADC has a policy of requiring publications be sent directly from
the publisher to detainees, and this policy prevented him from receiving some religious publications.
This claim is vague and conclusory because he fails to state facts in support of this claim, such as
what religious materials he was denied and on what occasions. In any event the policy obviously
serves the legitimate and reasonable penological interest of assuring that persons do not introduce
contraband into BCADC hidden in books or other publications, and thus does not violate Hoffman’s
First Amendment rights. See O’Lone v. Estate of Shabazz, 482 U.S. at 349. Hoffman was still free
to receive publications directly from the publisher in conformance with the BCADC policy.
Hoffman has no claim under the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. §§ 2000cc - 2000cc-5, because he fails to allege facts showing a substantial interference with
his religious beliefs or practices. See Baranowski v. Hart, 486 F. 3d at 123-26.
In a § 1983 civil rights action a plaintiff must allege the defendant was personally involved in
the actions plaintiff complains of, or is responsible for the policy or custom giving rise to the
constitutional deprivation. See Murphy v. Kellar, 950 F. 2d 290, 292 (5th Cir. 1992); McConney v.
Houston, 863 F. 2d 1180, 1184 (5th Cir. 1989); Reimer v. Smith, 663 F. 2d 1316, 1323 (5th Cir.
1981); Howell v. Tanner, 650 F. 2d 610, 615 (5th Cir. 1981), cert. denied, 456 U.S. 918 & 919
(1982). An employer cannot be held liable under § 1983 on a respondeat superior theory, i.e. an
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employer is not liable under § 1983 solely because it employs a tortfeasor. Monell v. Dept. Soc.
Servs. City New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Plaintiff fails to
allege how the individual Defendants were personally involved in the violation of his federal or
constitutional rights and thus Hoffman failed to allege a non-frivolous claim against the defendants.
Furthermore, because administrators and supervisors are not liable for the acts of their subordinates,
Hoffman failed to state a claim against the various administrators and supervisors.
Qualified immunity extends to government officials performing discretionary functions
"insofar as 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, 102 S.
Ct. 2727, 73 L. Ed. 2d 396 (1982). Determination of qualified immunity claims require a court to
examine: whether the facts a plaintiff alleges or has shown make out a constitutional violation; and
whether the constitutional right allegedly violated was “clearly established” at the time the events
in question occurred. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565
(2009). Where a plaintiff fails to show the violation of a constitutional right or the right was “clearly
established” at the time, the public official is protected by qualified immunity. Id. at 236.
Defendants in their individual capacities are entitled to invoke qualified immunity and Hoffman
failed to allege particular facts sufficient to show Defendants are not entitled to qualified immunity.
Thus Hoffman failed to state a claim against the parole officers and officials, the Bexar County
Defendants, or any of the other remaining Defendants, and he failed to allege particular facts
sufficient to overcome their qualified immunity, and therefore these Defendants are entitled to
dismissal.
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III.
A district court may enter summary judgment sua sponte provided the affected party has prior
notice to come forward with evidence in opposition to summary judgment. Celotex Corp. v. Catrett,
477 U.S. 317, 326, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Summary judgment pursuant to Fed.
R. Civ. P. 56(a) is appropriate where the record shows there is no genuine issue of material fact and
a party is entitled to judgment as a matter of law. A party against whom summary judgment is
sought may not rest on the allegations or denials of his pleadings, but must come forward with
sufficient evidence to demonstrate a “‘genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute concerning a material fact is
“genuine” and sufficient to overcome a summary judgment motion “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. Summary judgment may be
granted “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. at 322.
To overcome summary judgment a plaintiff must present evidence in support of his claims, and
incompetent, subjective, or conclusory sworn allegations are not sufficient to meet this burden. See
Hall v. Thomas, 190 F. 3d 693, 698 (5th Cir. 1999) (“[a prisoner’s] subjective complaints,
unsupported by evidence, are insufficient to defeat . . . summary judgment”); Marshall v. East
Carroll Parish Hosp. Serv. Dist., 134 F. 3d 319, 324 (5th Cir. 1998) (affidavits stating legal
conclusions without reference to material facts are not competent); Orthopedic & Sports Injury
Clinic v. Wang Lab., Inc., 922 F. 2d 220, 225 (5th Cir. 1991) (affidavits setting forth “ultimate or
conclusory facts and conclusions of law” not competent).
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This Court directed Hoffman to show cause (see Entry # 140) why the parole officers and
officials, the Bexar County Defendants, and all other remaining Defendants should not be granted
summary judgement. Hoffman failed to respond as ordered, and therefore there is no material issue
of fact for trial and these Defendants are entitled to summary judgment. Furthermore, even it
Hoffman’s Motion for Reconsideration (see Entry # 141) is liberally construed as a response to this
Court’s Order, the Motion for Reconsideration has been stricken because it fails to conform to Local
Rule CV-10, and thus it fails to present a material issue for trial. Furthermore, if the Motion is
intended to be a response to this Court’s Order, it is not sworn or verified under penalty of perjury,
and thus is incompetent, and therefore fails to present a material issue of fact for trial. See Fed. R.
Civ. P 56(c)(4); 28 U.S.C. § 1746. Moreover, the filing’s allegations are vague and conclusory and
fail to present a material issue of fact, and therefore are not sufficient to overcome summary
judgment. In a filing titled “Motion to Rebut” (Entry # 143), Plaintiff requests that the Court set a
date so that he can present evidence. Plaintiff is not automatically entitled to a hearing. Plaintiff was
required to file any competent summary judgment evidence to rebut the motion for summary
judgment and he has failed to do so.
IV.
Accordingly, Hoffman’s Motion for Reconsideration (Entry # 141) is STRICKEN and in the
alternative is DENIED; the Bexar County Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(6)
(see Case 12-CA-149 Entry # 9) is GRANTED; the parole officers and officials, the Bexar County
Defendants, and all other remaining Defendants are GRANTED SUMMARY JUDGMENT; and
because Hoffman’s claims against the other Defendants have been previously dismissed (see Entry
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# 140) this case is DISMISSED WITH PREJUDICE. All other pending motions are DENIED
as moot.
Federal Rule of Civil Procedure 11 provides that monetary sanctions may be imposed against
those that burden the federal courts with frivolous filings. Hoffman’s claims in these cases fail to
present an arguable basis for federal civil rights relief and thus are frivolous. Hoffman is warned
that further frivolous filings will be met with sanctions.
It is so ORDERED.
SIGNED this 23rd day of October, 2012.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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