Hill v. Perry et al

Filing 3

ORDER - re 1 Complaint filed by Rocky Hill is DISMISSED WITHOUT PREJUDICE for failure to state a claim, as frivolous, for failure to prosecute and for failure to comply with this Court's Show Cause Order. CASE NO LONGER REFERRED to Magistrate Judge Henry J. Bemporad. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROCKY HILL,
TDCJ No. 1596897,

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Plaintiff,
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V.
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RICK PERRY, Governor,
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GREG ABBOTT, Attorney General,
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BRAD LIVINGSTON, Executive Director, §
Texas Department of Criminal Justice, and §
Dr. LINETTE LINTHICUM, Director,
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Texas Department of Criminal Justice
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Health Services Division,
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Defendants.
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CIVIL NO. SA-15-CA-73-XR (HJB)

ORDER
Plaintiff Rocky Hill, currently an inmate at the Texas Department of Criminal Justice’s John
B. Connally Unit in Kenedy, Texas, has filed this civil rights action pursuant to 42 U.S.C. Section
1983 naming as defendants the former Governor of Texas, the former Attorney General and current
Governor of Texas, and a pair of supervisory officials with the Texas Department of Criminal Justice
and requests injunctive relief in the form of an order from this Court directing the defendants to
furnish Plaintiff with pure water and more fresh fruits and vegetables. For the reasons set forth
hereinafter, Plaintiff’s claims will be dismissed.
I. Background
Plaintiff’s Section 1983 complaint was accompanied by neither the appropriate filing fee nor
an In Forma Pauperis (IFP) application. Nor did Plaintiff submit a certified copy of his TDCJ inmate
trust account setting forth the average monthly balance and average monthly deposits in his inmate

trust account for the past six months, as required by 28 U.S.C. § 1915(a)(2). In a Show Cause Order
issued February 6, 2015 (ECF no. 2), the Magistrate Judge directed Plaintiff to either pay the filing
fee or submit a complete IFP application, together with a certified copy of his TDCJ inmate trust
account statement for the past six months as required by Section 1915(a)(2). The Magistrate Judge’s
Show Cause Order also identified numerous substantive deficiencies in Plaintiff’s original Section
1983 complaint and directed Plaintiff to file an amended complaint setting forth specific factual
allegations showing the named defendants had been personally involved in the alleged deprivations
of Plaintiff’s purported federal constitutional rights. Plaintiff has made no effort to date to respond
in any manner to the Magistrate Judge’s Show Cause Order and the deadline for doing so has long
since passed.
II. Standard for Review Under Sections 1915(e) (2) (B) & 1915A
When Congress enacted the Prisoner Litigation Reform Act of 1996 (“PLRA”), it specifically
amended 28 U.S.C. Section 1915(e)(2)(B)(i) and added new Section 1915A to provide that a
complaint filed by a prisoner could be dismissed as frivolous regardless of whether any filing fee or
portion thereof had been paid. Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Therefore,
Plaintiff’s claims herein are subject to review under Section 1915(e) and may be dismissed as
frivolous regardless of whether he paid any portion of the filing fee in this cause. See Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998) (holding the federal district courts are required to dismiss
any action brought by a prisoner that is frivolous, malicious, fails to state a cause of action, or seeks
monetary damages from a defendant who is immune from such relief); 42 U.S.C. §1997e(c).
In an action filed IFP, a court may raise sua sponte the issue of whether an action is malicious
or frivolous under Section 1915(e). Neitzke v. Williams, 490 U.S. 319, 327 (1989). Dismissal of a
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claim as frivolous under Section 1915(e) is permissible where the claim lacks an arguable basis
either in law or in fact. Neitzke, 490 U.S. at 325; Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013). A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal
theory. Rogers, 709 F.3d at 407; Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009); Harris v.
Hegmann, 198 F.3d 153, 156 (5th Cir. 1999); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A
complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present
additional facts when necessary, the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992); Rogers, 709 F.3d at 407; Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir.
2009) (holding dismissal as frivolous appropriate after the plaintiff is given an opportunity to amend
or allege additional facts through answers to a post-complaint questionnaire), cert. denied, 560 U.S.
944 (2010); Samford, 562 F.3d at 678.
III. Failure to State a Claim for Relief
The pleading standards do not require detailed factual allegations but they do demand more
than an unadorned, the defendant unlawfully harmed me accusation. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678; Central States, Se. & Sw. Areas Health &
Welfare Fund ex rel. Bunte v. Health Special Risk, Inc., 756 F.3d 356, 360 (5th Cir. 2014). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678;
Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1935,
188 L. Ed. 2d 960 (2014). “Factual allegations must be enough to raise a right to relief above the
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speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Twombly, 550 U.S. at 555; Health Special Risk, Inc., 756 F.3d at 360. A pleading that
offers “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” will
not do. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Nor does a complaint suffice if it renders
“naked assertions” devoid of further factual enhancement. Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 557.
IV. Section 1983 Generally
42 U.S.C. Section 1983 does not create any substantive rights, but instead was designed to
provide a remedy for violations of federal statutory and constitutional rights. Sepulvado v. Jindal,
729 F.3d 413, 420 n.17 (5th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1789, 188 L. Ed. 2d
771 (2014); Sw. Bell Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008);
Hernandez ex rel. Hernandez v. Texas Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 87980 (5th Cir. 2004). There are two essential elements to a Section 1983 action: (1) the conduct in
question must be committed by a person acting under color of state law; and (2) the conduct must
deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Whitley,
726 F.3d at 638; Romano v. Greenstein, 721 F.3d 373, 377 (5th Cir. 2013); Wyatt v. Fletcher, 718
F.3d 496, 517 (5th Cir. 2013).
A prisoner seeking to recover a judgment under Section 1983 must exhaust available
administrative remedies before resort to the federal courts. See Clifford v. Gibbs, 298 F.3d 328, 330
(5th Cir. 2002).
Finally, mere negligence by a state official does not give rise to Section 1983 liability.
Daniels v. Williams, 474 U.S. 327, 332-35 (1986). A showing of merely negligent conduct by an
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official is insufficient to overcome the defense of qualified immunity. Whitley, 726 F.3d at 643
(“Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not
amount to deliberate indifference and thus do not divest the official of qualified immunity.”);
Zarnow v. City of Wichita Falls, Texas, 500 F.3d 401, 410 (5th Cir. 2007 (negligence will not
support the denial of qualified immunity).
V. Supervisory Liability Under Section 1983
Plaintiff has named as defendants the former Governor of Texas, the former Attorney General
and current Governor of Texas, and two supervisory TDCJ officials but has not alleged any specific
facts showing any of these defendants were personally involved in any of the matters about which
Plaintiff complains in this lawsuit. Specifically, Plaintiff alleges no facts showing any of the
defendants have ever had any personal involvement in the provision of water or food to Connally
Unit inmates.
Vicarious liability does not apply to Section 1983 claims. See Iqbal, 556 U.S. at 676
(government officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior). Under Section 1983, supervisory officials are not liable for
the actions of subordinates on any theory of vicarious liability; the doctrine of respondeat superior
does not apply to such actions. See Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011)
(under Section 1983, a government official may be held liable solely for his own conduct). Only the
direct acts or omissions of government officials, not the acts of subordinates, will give rise to
individual liability under Section 1983. See Jones v. Lowndes County, Miss., 678 F.3d 344, 349 (5th
Cir. 2012) (“A Section 1983 claimant must ‘establish that the defendant was either personally
involved in the deprivation or that his wrongful actions were causally connected to the
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deprivation.’”); Zarnow, 614 F.3d at 169 (“To support a supervisory liability claim, the misconduct
of a subordinate must be conclusively linked to the action or inaction of the supervisor.”).
Generally, a supervisor may be held liable only if there exists either (1) his personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation, such as where the supervisor
implemented or enforced unconstitutional policies which actually resulted in the plaintiff’s injuries.
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011). A supervisor may be held personally liable for
inadequate supervision or a failure to train subordinates only where the failure to train or supervise
amounts to deliberate indifference and is a proximate cause of a constitutional violation. See id., 659
F.3d at 446 (“A supervisor may also be liable for failure to supervise or train if: ‘(1) the supervisor
either failed to supervise or train the subordinate official; (2) a causal link exists between the failure
to train or supervise and the violation of the plaintiff’s rights; and (3) the failure to train or supervise
amounts to deliberate indifference.’”); Brown v. Callahan, 623 F.3d 249, 254 n.1 (5th Cir. 2010)
(supervisor may be held liable under Section 1983 for failure to train or supervise subordinates if (1)
the supervisor failed to train or supervise, (2) a causal link exists between the failure and violation
of plaintiff’s rights, and (3) the failure to train or supervise amounts to deliberate indifference).
Merely negligent or incompetent supervision cannot form a basis for liability under Section 1983;
the supervisor’s actions or inactions must rise to the level of “deliberate indifference.” Id.
VI. Qualified Immunity
As public officials performing discretionary roles, the named defendants are entitled to the
benefits of the doctrine of qualified immunity. Even when a state official or other person acting
under color of state law engages in constitutionally impermissible conduct, the defendant may
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nevertheless be shielded from liability for civil damages if the defendant’s actions did not violate
“clearly established statutory or constitutional rights of which a reasonable person would have
known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft
v. al–Kidd, ___ U.S. ___, ___, 131 S. Ct. 2074, 2085, 179 L. Ed. 2d 1149 (2011); McCreary v.
Richardson, 738 F.3d 651, 655 (5th Cir. 2013).
A party seeking damages from an official asserting qualified immunity bears the burden of
overcoming that defense. McCreary, 738 F.3d at 655; Wyatt v. Fletcher, 718 F.3d 496, 802 (5th Cir.
2013); Crostley v. Lamar County, Texas, 717 F.3d 410, 422 (5th Cir. 2013). The Fifth Circuit has
authorized the dismissal as frivolous of civil rights claims which fail to establish a violation of the
plaintiff’s “clearly established” federal rights. See Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir.
1999) (affirming summary dismissal of complaint against state prison officials as frivolous on
qualified immunity grounds). An official acts within his discretionary authority when he performs
non-ministerial acts within the boundaries of his official capacity. Tamez v. City of San Marcos,
Texas, 118 F.3d 1085, 1091-92 (5th Cir. 1997). An official acts within the scope of his authority if
he discharges the duties generally assigned to him. Id. at 1091-92. For executive officers in general,
qualified immunity is the norm. Malley v. Briggs, 475 U.S. 335, 340 (1986); Harlow v. Fitzgerald,
457 U.S. 800, 807 (1982).
Whether the conduct of which the plaintiff complains violated clearly established law is
essentially a legal question. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In a Section 1983
lawsuit, the relevant inquiry is whether the legal right which the plaintiff asserts was violated was
clearly established under federal law. Pierce v. Smith, 117 F.3d 866, 871 n.5 (5th Cir. 1997).
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Whether an official protected by qualified immunity may be held personally liable for an allegedly
unlawful act or omission generally turns on the “objective legal reasonableness” of the act or
omission assessed in the light of the legal rules that were “clearly established” at the time it was
taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987). For the legal rules to be considered
“clearly established,” the contours of the right alleged to have been violated “must be sufficiently
clear that a reasonable official would understand that what he is doing violates the right”; that is, “in
the light of preexisting law the unlawfulness must be apparent.” Id. at 640. While there need not
have been a specific ruling squarely on point on the issue in question, the law must have been
sufficiently clear to put the official on notice of the impropriety of his actions. Kinney v. Weaver, 367
F.3d 337, 372 (5th Cir. 2004); Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998). The Fifth
Circuit has directed courts to initially examine Supreme Court and Fifth Circuit precedent, i.e.,
“controlling authority,” in the course of determining whether a legal principle is “clearly
established”; the law of other Circuits may be considered when “a consensus of cases of persuasive
authority [is] such that a reasonable officer could not have believed that his actions were lawful.”
McClendon v. City of Columbia, 305 F.3d 314, 328 (5th Cir. 2002) (en banc).
The second step in the qualified immunity analysis is the determination of the objective
reasonableness of the defendant’s act or omission. Objective reasonableness is assessed in light of
the legal rules clearly established at the time of the incident; an officer’s conduct is not objectively
reasonable when all reasonable officials would have realized the particular challenged conduct
violated the constitutional provisions sued on. See Hogan v. Cunningham, 722 F.3d 725, 735 (5th
Cir. 2013) (recognizing qualified immunity in excessive force case required not only examination
of clearly established Fourth Amendment standards but also whether a right to remain free of the
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degree of force used in a given situation was clear to a reasonable officer at the scene). The qualified
immunity standard gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law. Hunter v. Bryant, 502 U.S. 224, 229 (1991);
Malley v. Briggs, 475 U.S. 335, 343 (1986). In addition, merely negligent conduct on the part of a
government official cannot meet the rather stringent standard for liability under 42 U.S.C. §1983.
Daniels v. Williams, 474 U.S. 326, 331-34 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48
(1986).
VII. Deficiencies in Plaintiff’s Original Complaint
As explained by the Magistrate Judge in the Court’s Show Cause Order, the initial problem
with Plaintiff’s claims in this lawsuit is Plaintiff’s failure to allege specific facts showing any of the
named defendants were personally involved in the alleged denial of pure water and adequate food
to Plaintiff. Nor has Plaintiff alleged any specific facts showing any of the named defendants ever
displayed deliberate indifference to any of Plaintiff’s physical or medical needs. The second problem
with Plaintiff’s original complaint is Plaintiff has failed to identify any clearly established federal
constitutional right which he alleges the defendants have violated. As explained above, to prevail
on a Section 1983 claim, a Plaintiff must establish that a state official was personally involved or
displayed deliberate indifference to a violation of Plaintiff’s clearly established federal constitutional
rights. Plaintiff has failed to allege any specific facts linking any of the named defendants personally
to any act or omission which violated any of plaintiff’s clearly established federal constitutional
rights. Under such circumstances, plaintiff’s claims herein not only fail to state a claim for relief,
they are subject to summary dismissal without prejudice as frivolous pursuant to Section
1915(e)(B)(i).
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VIII. Plaintiff’s Failure to Comply with the Court’s Show Cause Order
Plaintiff’s Section 1983 complaint was not accompanied by a complete IFP application or
the appropriate filing fee. Plaintiff has failed to comply with the portion of this Court’s Show Cause
Order directing him to comply with the financial responsibility provisions of the Prisoner Litigation
Reform Act, including 28 U.S.C. Section 1915(a)(2). See Santee v. Quinlan, 115 F.3d 355, 357 (5th
Cir. 1997) (recognizing the duty on prisoners to furnish all necessary documentation to qualify for
In Forma Pauperis status). The Court will, alternatively, dismiss this lawsuit for failure to prosecute
and failure to comply with the Show Cause Order, pursuant to Rule 41(b).
“Rule 41(b) authorizes the district court to dismiss an action sua sponte for failure to
prosecute or comply with a court order.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014);
Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996). A Rule 41(b) dismissal is appropriate where
there is a clear record of delay or contumacious conduct and when lesser sanctions would not serve
the best interest of justice. Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008). Dismissal
with prejudice is appropriate where a federal habeas petitioner demonstrates “a clear record of
contumacious conduct and delay.” Id. at 404. In making such a determination, the federal courts
may take judicial notice of prior habeas proceedings brought by the petitioner in connection with the
same conviction. Id. Plaintiff has not demonstrated the type of contumacious conduct or delay
justifying dismissal of his claims with prejudice. Nonetheless, Plaintiff has failed to comply with
an Order of this Court and has failed to either the filing fee or file an application for leave to proceed
IFP. Under such circumstances, this Court will, alternatively, dismiss this cause without prejudice
to Plaintiff’s right to re-file his civil action provided he either pays the filing fee or establishes he
does not possess sufficient financial resources to do so. Plaintiff is admonished the PLRA’s
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financial responsibility provisions, including 28 U.S.C. Section 1915(a)(2), apply as long as Plaintiff
remains a prisoner.
IX. ORDER
Accordingly, it is hereby ORDERED that:
1. The referral of this cause to the Magistrate Judge is WITHDRAWN.
2. Plaintiff’s original complaint is DISMISSED WITHOUT PREJUDICE for failure to state
a claim, as frivolous under sections 1915(e)(B)(i) and 1915A(b), for failure to prosecute under Rule
41(b), and for failure to comply with this Court’s Show Cause Order.
3. All pending motions are DISMISSED AS MOOT.
4. The Clerk of Court shall send a copy of this Order and the Final Judgment in this case to
the Pro Se Staff Attorney, Attn.: Keeper of the “Three Strikes List,” U.S. District Court for the
Eastern District of Texas for the Tyler Division, 211 West Ferguson, Tyler, Texas 75702, so that this
case may be recorded in the “Three-Strikes List."
5. The Clerk of this Court shall transmit a Certified copy of this Order and the Final
Judgment in this cause to the TDCJ Office of General Counsel, P.O. Box 13084, Austin, Texas
78711.
It is so ORDERED.
SIGNED this 16th day of March, 2015.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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