Romero v. Owens

Filing 16

MEMORANDUM OPINION AND ORDER, Defendant's Motion to Dismiss is GRANTED; all of Plaintiff's claims are DISMISSED WITH PREJUDICE 9 Motion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Fred Solis, Rissie Owens, Anthony Ramirez, Chuck Speier, DENIED 13 MOTION to Appoint Counsel filed by Alfredo Romero, DENIED 15 MOTION to Continue filed by Alfredo Romero, DENIED 14 MOTION for Discovery filed by Alfredo Romero.IT IS FU RTHER ORDERED that the Clerk of Court shall send a copy of this Memorandum Opinion and 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. It is Finally Ordered that this case is CLOSED. Signed by Judge Fred Biery. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ALFREDO ROMERO,
TDCJ No. 1054039,
Plaintiff,
V.
RISSIE OWENS,
FRED SOLIS,
ANTHONY RAMIREZ, and
CHUCK SPEIER,
Defendants.

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§ CIVIL NO. SA-15-CA-868-FB (HJB)
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MEMORANDUM OPINION AND ORDER
The matters before the Court are (1) plaintiff’s motion for appointment of counsel, filed
January 27, 2016 (ECF no. 13), (2) plaintiff’s motion for discovery, filed January 27, 2016 (ECF no.
14), (3) plaintiff’s motion for continuance, filed January 27, 2016 (ECF no. 15), and (4) defendants’
motion to dismiss, filed December 7, 2015 (ECF no. 9). For the reasons discussed below, all of
plaintiff’s motions will be denied and defendants’ motion will be granted.
Background
Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on October 5, 2015
(ECF nos. 1 & 2), naming as defendants four supervisory state parole officials. He alleges his
constitutional rights to equal protection of the laws and to freedom from cruel and unusual
punishment have been violated by (1) the denial of his requests for parole on multiple occasions and
(2) his exclusion from eligibility for participation in TDCJ educational programs - both because he

has an ICE detainer lodged against him. In his memorandum in support of his complaint, plaintiff
requests injunctive relief as well as monetary damages from each defendant (ECF no. 2, at pp. 11-12)..
Defendants’ motion to dismiss argues (1) plaintiff possesses no constitutional interest in, or
a state statutory right to, release on parole; (2) state statutes which exclude plaintiff from eligibility
for release on parole do not violate equal protection principles or the eighth amendment’s prohibition
on cruel and unusual punishment; (3) the named defendants have no legal authority over the
Windham School, which operates educational programs within facilities of the Texas Department
of Criminal Justice’s Institutional Division; (4) plaintiff has failed to allege any specific facts
showing any of the named defendants were personally involved in, or possess personal knowledge
of, any of the matters about which plaintiff complains in his pleadings in this lawsuit; and (5)
defendants are entitled to relief from plaintiff’s requests for monetary damages under the Eleventh
Amendment, the doctrine of qualified immunity, and well-settled principle that supervisory official
may not be held personally liable for damages under § 1983 (ECF no. 9).
Standard of Review Under Rule 12(b)(6), FED.R.CIV.P.
The pleading standard set forth in Rule 8(a)(2), FED.R.CIV.P., (which requires only “a short
and plain statement of the claim showing that the pleader is entitled to relief”) does not require
detailed factual allegations but it does demand more than a conclusory allegation from the plaintiff
that he or she was unlawfully harmed by the defendant. 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.” Ashcroft v. Iqbal, 556 U.S. at 678; Central States, Southeast and Southwest
Areas Health and Welfare Fund ex rel. Bunte v. Health Special Risk, Inc., 756 F.3d 356, 360 (5th
2

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.”
Ashcroft v. Iqbal, 556 U.S. at 678; Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013), cert.
denied, 134 S. Ct. 1935 (2014). “Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; see also Central States,
Southeast and Southwest Areas Health and Welfare Fund ex rel. Bunte v. Health Special Risk, Inc.,
756 F.3d at 360. A pleading which offers “labels and conclusions” or a “formulaic recitation of the
elements of a cause of action” will not suffice. Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atlantic
Corp. v. Twombly, 550 U.S. at 555. Nor does a complaint suffice if it renders “naked assertions”
devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v.
Twombly, 550 U.S. at 557.
Section 1983 Generally
Title 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, 134 S. Ct. 1789 (2014); Southwestern Bell
Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008); Hernandez ex rel. Hernandez
v. Texas Department of Protective and Regulatory Services, 380 F.3d 872, 879-80 (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 v. Hanna, 726 F.3d
631, 638 (5th Cir. 2013), cert. denied, 134 S. Ct. 1935 (2014); Romano v. Greenstein, 721 F.3d 373,
3

377 (5th Cir. 2013); Wyatt v. Fletcher, 718 F.3d 496, 517 (5th Cir. 2013); see also Walker v. City
of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (holding that constitutional claim of discrimination
requires proof of purposeful discrimination; disparate impact is insufficient; and absence of
discriminatory purpose precludes constitutional violation).
In order to state a cause of action under Section 1983, a plaintiff must allege facts
establishing that an otherwise private defendant acted “under color” of state law. Rundus v. City of
Dallas, Texas, 634 F.3d 309, 312 (5th Cir. 2011) (to show there is state action by an otherwise
private entity, plaintiff must show either (1) private entity’s action represents an official city policy
or custom or (2) defendant’s action in enacting and enforcing restriction is “fairly attributable” to
the city), cert. denied, 132 S. Ct. 107 (2011); Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir.
2001) (holding no §1983 liability could exist with regard to private defendants absent allegations
that non-governmental defendants acted in concert with governmental entity to deprive plaintiff of
his or her rights). Stated somewhat differently, a claim for relief under 42 U.S.C. § 1983 must
contain two elements: (1) that plaintiff has been deprived of a right secured by the Constitution or
laws of the United States; and (2) that the defendant acted under color of state law. Kovacic v.
Villarreal, 628 F.3d 209, 213 (5th Cir. 2010), cert. denied, 131 S. Ct. 2995 (2011); Bustos v. Martini
Club Inc., 599 F.3d 458, 464 (5th Cir. 2010) (a person acts under color of state law if he or she
misuses “power” possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law). Thus, not all actions of a state official are necessarily taken
under color of state law; where the actor’s motivation was personal and the actor did not invoke or
use any official authority, there is an absence of a showing of action “under color of state law.”

4

Bryant v. Military Department of Mississippi, 597 F.3d 678, 686-87 (5th Cir. 2010), cert. denied,
562 U.S. 893 (2010).
Plaintiff alleges the defendants failed to comply with a variety of state statutes and code
provisions.

However, absent some showing that the defendants violated plaintiff’s federal

constitutional rights, complaints about the violation of state statutes or state agency regulations are
insufficient as a matter of law to support a claim for relief under Section 1983. See Jones v. Lowndes
County, Mississippi, 678 F.3d 344, 352 (5th Cir. 2012) (“[A]n alleged violation of a state statute
does not give rise to a corresponding § 1983 violation, unless the right encompassed in the state
statute is guaranteed under the United States Constitution.”); Black v. Warren, 134 F.3d 732, 734
(5th Cir. 1998) (holding alleged violations of TDCJ procedural rules regarding notice and right to
call witnesses and present documentary evidence at disciplinary hearing did not present arguable
basis to support due process claim); Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (holding
prison official’s failure to follow prison’s own policies, procedures, and regulations does not
constitute violation of due process if constitutional minima are nevertheless met); Giovanni v. Lynn,
48 F.3d 908, 912 (5th Cir. 1995) (holding a mere failure to accord procedural protection called for
by state law or regulation does not of itself amount to a denial of due process), cert. denied, 516 U.S.
860 (1995); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) (holding that state’s failure to
follow its own procedural regulations does not constitute violation of due process “if constitutional
minima are nevertheless met”); Murray v. Mississippi Department of Corrections, 911 F.2d 1167,
1168 (5th Cir. 1990) (holding alleged violations of state statute did not give rise to federal
constitutional claims), cert. denied, 498 U.S. 1050 (1991); Jackson v. Cain, 864 F.2d 1235, 1251
(5th Cir. 1989) (“A state's failure to follow its own procedural regulations does not establish a
5

violation of due process, because ‘constitutional minima may nevertheless have been met.’”); Brown
v. Texas A&M University, 804 F.2d 327, 335 (5th Cir. 1986) (holding state agency’s violations of
its own internal regulations did not establish due process violation or otherwise give rise to
constitutional claim). Therefore, insofar as plaintiff alleges merely that the defendants failed to
comply with state jail rules and regulations and state statutes, those allegations, standing alone, do
not provide a basis for recovery or for a finding that plaintiff has stated a claim for relief under 42
U.S.C. § 1983.
Finally, mere negligence by a state official does not give rise to § 1983 liability. Daniels v.
Williams, 474 U.S. 327, 332-35 (1986). A showing of merely negligent conduct by an official is
insufficient to overcome the defense of qualified immunity. Whitley v. Hanna, 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); Estate of Davis ex rel. McCully v. City of North Richland
Hills, 406 F.3d 375, 381 (5th Cir. 2005) (holding the same). Negligent failure to supervise or train
does not satisfy the “deliberate indifference” standard and will likewise not support a § 1983 cause
of action against a municipal entity. City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989)
(holding that only showing of deliberate indifference by municipal policy makers will support
Section 1983 liability based on failure-to-train claim); Zarnow v. City of Wichita Falls, Texas, 614
F.3d 161, 170 (5th Cir. 2010) (“‘Unintentionally negligent oversight’ does not satisfy the deliberate
indifference standard.”), cert. denied, 131 S. Ct. 3059 (2011); Valle v. City of Houston, 613 F.3d
536, 542 (5th Cir. 2010) (holding the same), cert. denied, 563 U.S. 935 (2011).
6

Qualified Immunity
As public officials performing discretionary roles, 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 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, 131 S. Ct.
2074, 2085 (2011); McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013).
The defense of qualified immunity first recognized in Harlow v. Fitzgerald, 457 U.S. 800
(1982), is neither a complete barrier to recovery nor a true affirmative defense. Rather, its invocation
serves to shift the burdens of pleading and proof in federal civil rights lawsuits brought against
public officials for actions or omissions attending their performance of official duties. A party
seeking damages from an official asserting Harlow qualified immunity bears the burden of
overcoming that defense. McCreary v. Richardson, 738 F.3d at 655; Wyatt v. Fletcher, 718 F.3d
496, 802 (5t5h Cir. 2013); Crostley v. Lamar County, Texas, 717 F.3d 410, 422 (5th Cir. 2013).
Once a government official or employee has asserted qualified immunity and established that the
allegedly wrongful acts were undertaken within the scope of his discretionary authority, the burden
shifts to the party seeking damages to show that qualified immunity does not bar recovery. 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
7

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), cert. denied, 522 U.S. 1125 (1998);
Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (qualified immunity shields
government officials acting within their discretionary authority from liability when their conduct
does not violate clearly established statutory or constitutional law of which reasonable person would
have known), cert. denied, 558 U.S. 1148 (2010); Gates v. Texas Department of Protective and
Regulatory Services, 537 F.3d 404, 418 (5th Cir. 2008) (holding the same); Waltman v. Payne, 535
F.3d 342, 346 (5th Cir. 2008) (holding the same).
An official acts within the scope of his authority if he discharges the duties generally assigned
to him. Tamez v. City of San Marcos, Texas, 118 F.3d 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. at 807.
[Q]ualified immunity operates “to ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S., at 206,
121 S. Ct. 2151. For a constitutional right to be clearly established, its contours
“must be sufficiently clear that a reasonable official would understand that what he
is doing violates that right. This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held
unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12, 105 S. Ct. 2806, 86 L.
Ed. 2d 411; but it is to say that in the light of pre-existing law the unlawfulness must
be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed.
2d 523 (1987).
Officers sued in a civil action for damages under 42 U.S.C. § 1983 have the same
right to fair notice as do defendants charged with the criminal offense defined in 18
U.S.C. § 242. Section 242 makes it a crime for a state official to act “willfully” and
under color of law to deprive a person of rights protected by the Constitution. In
United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997), we
held that the defendant was entitled to “fair warning” that his conduct deprived his
8

victim of a constitutional right, and that the standard for determining the adequacy
of that warning was the same as the standard for determining whether a constitutional
right was “clearly established” in civil litigation under § 1983.
Hope v. Pelzer, 536 U.S. at 739-40.
The Supreme Court has admonished district courts that Harlow qualified immunity is an
immunity from suit rather than a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). The Supreme Court and the United States Court of Appeals for the Fifth Circuit have also
strongly encouraged district courts to consider §1983 lawsuits in which qualified immunity claims
are apparent from the pleadings without resort to cumbersome and expensive discovery. See Siegert
v. Gilley, 500 U.S. 226, 231-302 (1991) (holding that discovery should not be allowed until
determination is made that plaintiff’s clearly established constitutional rights were violated);
Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (recognizing one purpose of qualified
immunity is to protect public officials from broad-ranging discovery that can be peculiarly disruptive
of effective government); Mitchell v. Forsyth, 472 U.S. at 526-27 (holding denials of qualified
immunity are subject to immediate appellate review because protection afforded by qualified
immunity is one from suit, not just liability); Harlow v. Fitzgerald, 457 U.S. at 818 (“If the law at
that time was not clearly established, an official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct
not previously identified as unlawful. Until this threshold immunity question is resolved, discovery
should not be allowed.”).
Once a defendant raises qualified immunity, the judge must first determine whether the
plaintiff has asserted a violation of a constitutional right, then whether the defendant’s actions were
objectively reasonable in light of the law that was clearly established at the time the contested action
9

occurred; until this threshold is resolved, discovery should not be allowed. Siegert v. Gilley, 500 U.S.
at 232-33; Harlow v. Fitzgerald, 457 U.S. at 818. Currently applicable constitutional standards are
used in making the determination as to whether the defendant's conduct violated a plaintiff’s “clearly
established” constitutionally-protected right. Siegert v. Gilley, 500 U.S. at 231; Easter v. Powell, 467
F.3d 459, 462 (5th Cir. 2006). If the plaintiff passes this threshold, the Court must determine
whether the defendant's conduct was “objectively reasonable” under legal principles as they existed
at the time of the defendant’s acts or omissions. See Wyatt v. Fletcher, 718 F.3d at 502 (noting that
constitutional right is clearly established only if its contours are sufficiently cleat that a reasonable
official would understand that what he is doing violates that right); Easter v. Powell, 467 F.3d at 462
(“First, we determine whether, under current constitutional standards, the plaintiff has alleged a
violation of a clearly established constitutional right. If so, we then decide if the defendant’s conduct
was objectively reasonable in light of the clearly established law at the time of the incident.”); Spann
v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1992) (“The contour, or standard, for a constitutional right
may expand after the time of the alleged violation, and may be the benchmark for proof at trial of
that right and its claimed violation; but as stated, the benchmark for objective reasonableness is that
which existed at the time of the alleged violation -- we look to the clearly established law at that
time.”). In summary, the two-pronged qualified immunity test inquires first whether the defendant’s
conduct violated the plaintiff’s clearly established constitutional rights and, second, whether the
defendant’s conduct was nonetheless objectively reasonable in light of legal principles as they
existed at that time. Haverda v. Hays County, 723 F.3d 586, 598 (5th Cir. 2013); Wyatt v. Fletcher,
718 F.3d at 502; Prison Legal News v. Livingston, 683 F.3d 201, 224 (5th Cir. 2012).

10

The Unites States Court of Appeals for the Fifth Circuit Court has also repeatedly encouraged
the district courts to (1) require highly fact-specific pleading by a plaintiff in a §1983 lawsuit who
attempts to overcome a plea of Harlow qualified immunity, Reyes v. Sazan, 168 F.3d 158, 161 (5th
Cir. 1999); Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996); Todd v. Hawk, 72 F.3d at 446;
Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995), and (2) permit limited discovery pending
disposition of the qualified immunity issue only in those extraordinary situations in which the
specific facts contained in the plaintiff’s pleadings and affidavits are sufficient to defeat the
defendant’s claims of qualified immunity. Reyes v. Sazan, 168 F.3d at 161. This heightened
pleading requirement applies to pro se litigants. Jackson v. City of Beaumont Police Department,
958 F.2d 616, 621 (5th Cir. 1992); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986).
“[P]laintiffs must demonstrate prior to discovery that their allegations are sufficiently factspecific to remove the cloak of protection afforded by an immunity defense.” Jackson v. City of
Beaumont Police Department, 958 F.2d at 620; Reyes v. Sazan, 168 F.3d at 161; Babb v. Dorman,
33 F.3d 472, 477 (5th Cir. 1994); James v. Sadler, 909 F.2d 834, 838 (5th Cir. 1990) (holding
questions regarding qualified immunity are resolved on the face of the pleadings and with limited
resort to pre-trial discovery). A complaint which raises the likely issue of immunity cannot be cast
in broad, vague, general, indefinite, or conclusory terms, but must include detailed facts supporting
the contention that the plea of immunity cannot be sustained. Gobert v. Caldwell, 463 F.3d 339, 348
n.27 (5th Cir. 2006); Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Southard v. Texas
Board of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997). Discovery related to the applicability
of qualified immunity is appropriate only when factual issues exist as to the applicability of qualified
immunity. Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991).
11

In this case, plaintiff has failed to allege any facts sufficient to overcome the defense
available to defendants through the doctrine of qualified immunity. Thus, plaintiff is not entitled to
direct discovery requests to the defendants before responding to defendants’ motion to dismiss. Nor
is plaintiff entitled to a continuance to conduct discovery before responding to defendants’ motion
to dismiss.
Although the exact statement of Harlow qualified immunity may vary from case-to-case, as
explained above, the Supreme Court and the United States Court of Appeals for the Fifth Circuit
have consistently held that, in order for a civil rights defendant pleading Harlow immunity to be
liable, the defendant official’s conduct must have violated “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Ashcroft v. Al-Kidd, 131 S.
Ct. at 2090; Anderson v. Creighton, 483 U.S. at 646 n.6; Harlow v. Fitzgerald, 457 U.S. at 818;
Wyatt v. Fletcher, 718 F.3d at 502; Easter v. Powell, 467 F.3d at 462. If reasonable public officials
could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified
immunity. See Lewis v. University of Texas Medical Branch, 665 F.3d 625, 631 (5th Cir. 2011)
(noting that fact that reasonable minds could disagree on the propriety of the plaintiff’s termination
is insufficient to defeat a public officer’s qualified immunity defense); Zarnow v. City of Wichita
Falls, Texas, 500 F.3d 401, 407-08 (5th Cir. 2007) (holding that if reasonable public officials could
differ as to whether the defendant’s actions were lawful, the defendant is entitled to immunity); see
also Malley v. Briggs, 475 U.S. 335, 341 (1986) (“Defendants will not be immune if, on an objective
basis, it is obvious that no reasonably competent officer would have concluded that a warrant should
issue; but if officers of reasonable competence could disagree on this issue, immunity should be
recognized.”). Whether the conduct of which the plaintiff complains violated clearly established law
12

is essentially a legal question. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In a § 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). 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. at 639. 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.” Anderson v. Creighton, 483 U.S. at 640. While there need not
have been a specific ruling squarely in 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.), cert. denied, 543 U.S. 872 (2004); Sanchez v. Swyden, 139 F.3d 464, 466
(5th Cir.), cert. denied, 525 U.S. 872 (1998). The United States Court of Appeals for 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.) (en banc), cert. denied, 537 U.S. 1232
(2002).
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
13

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 the 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 Title 42 U.S.C.
§1983. Daniels v. Williams, 474 U.S. 326, 331-34 (1986); Davidson v. Cannon, 474 U.S. 344, 34748 (1986).
Plaintiff argues in his recent motion for continuance the defendants are not entitled to
qualified immunity because he has sought injunctive relief (ECF no. 15, at p. 14).1 This argument
is without merit. Plaintiff’s memorandum in support of his complaint requests monetary damages
in the amount of $250,000 from each public official named as a defendant in his original complaint.
(ECF no. 2, at pp. 11-12). For the reasons discussed below, none of plaintiff’s allegations about the
denial of his requests for release on parole are sufficient to overcome the protection from suit
afforded by the doctrine of qualified immunity to which all of the named defendants are entitled.

1

Plaintiff’s filing styled “motion for continuance” (ECF no. 15) is, in fact, a section-by-section set of
arguments attempting to controvert the legal and factual arguments presented in defendants’ motion to dismiss.

14

Equal Protection: Parole Release
The United States Court of Appeals for the Fifth Circuit has repeatedly held that Texas
prisoners do not possess a constitutionally protected liberty interest in obtaining release on parole.
See Toney v. Owens, 779 F.3d 330, 341-42 (5th Cir. 2015) (“[W]e have consistently held that ‘Texas
prisoners ... cannot mount a challenge against any state parole review procedure on procedural ...
Due Process grounds.’ ”); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. ) (“because Texas
prisoners have no protected liberty interest in parole they cannot mount a challenge against any state
parole review procedure on procedural (or substantive) Due Process grounds.”), cert. denied, 522
U.S. 995 (1997); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (“The applicable Texas parole
statutes have been held, however, to confer no such liberty interest.”), cert. denied, 516 U.S. 1059
(1996). Plaintiff has no constitutionally protected interest in obtaining his release on parole. The
denial to plaintiff of release on parole does not implicate any fundamental constitutional right.
Plaintiff argues, however, that he has a constitutionally protected right under equal protection
principles to be treated the same as other TDCJ prisoners who do not have ICE detainers lodged
against them with regard to (1) parole consideration and (2) participation in educational programs
offered to TDCJ inmates through the Windham School. To establish an equal protection claim,
plaintiff “must show that two or more classifications of similarly situated persons were treated
differently.” Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir.), cert. denied, 133
S. Ct. 561 (2012). Strict scrutiny is appropriate only where a government classification implicates
a suspect class or a fundamental right. Id. Otherwise, rational basis review applies and this Court
need only determine whether the classification is rationally related to a legitimate governmental

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interest. Id. As explained above, plaintiff possesses no fundamental constitutional right to release
from custody on parole prior to the conclusion of his sentence.
Alien prisoners with ICE detainers, such as plaintiff, cannot show that exclusion from parole
consideration or participation in rehabilitation or educational programs establishes that alien
prisoners, as am identifiable group, are being treated differently from other similarly situated
prisoners who are not aliens. Id. This is because the state statutes and regulations, on their face,
classify prisoners not as aliens or non-aliens but, rather as those who have ICE detainers against them
and those who do not. Id. at 196. The classification of prisoners based upon whether they have an
ICE detainer lodged against them does not implicate a suspect classification. Id.
Insofar as plaintiff complains that he has been denied release on parole based upon his ICE
detainer, plaintiff’s complaint fails to state a cognizable claim. Applying a rational basis analysis,
the determination that ICE detainees are ineligible to participate in prerelease halfway house
confinement is rationally related to preventing those detainees from fleeing during the communitybased portion of those programs. Id. The same analysis applies with equal force to plaintiff’s
complaint that he has been denied release from custody on parole prior to the conclusion of his
sentence. Concern for the possibility ICE detainees released on parole might seek to flee the
jurisdiction before their deportation by federal authorities could be arranged rationally justifies the
State of Texas’ decision to deny parole release to ICE detainees. Id.
Eighth Amendment and Denial of Parole
Any psychological distress plaintiff may have suffered as a result of his repeated denials of
release on parole, even if such denials were arbitrary or capricious, does not equate with the cruel
and unusual punishment prohibited under the Eighth Amendment. Cook v. Whiteside, 505 F.2d 32,
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34 (5th Cir. 1974). As explained above, as a Texas prisoner, plaintiff has no constitutionally
protected interest in obtaining his release on parole prior to the conclusion of his sentence.
Lack of Personal Involvement in Alleged Denial of Educational Opportunity
To the extent that plaintiff complains that he has been denied the opportunity to participate
in educational programs offered to some TDCJ inmates by the Windham School, plaintiff has failed
to allege any facts sufficient to overcome the defense of qualified immunity showing that any of the
four named defendants has ever held any position which authorized them to exercise legal power
over the operation of the Windham School. As defendants correctly point out in their motion to
dismiss, the Windham School is a creature of state statute, i.e., Texas Education Code § 19.002,
which is separate and legally distinct from the Texas Board of Pardons and Paroles of which the
defendants are officials. Plaintiff has alleged no facts showing any of the named defendants has any
legal authority over the Windham School and this Court’s independent research has revealed none.
Any complaint plaintiff has with the manner in which the Windham School has operated its
programs within the TDCJ must be directed toward that agency or its officials, not to the persons
named as defendants in this lawsuit. In fact, plaintiff recently filed a separate lawsuit in this Court,
i.e., cause no. SA-15-CA-874-XR, in which he named a Windham School official as a defendant,
asserted similar claims to those raised in this lawsuit, and sought relief similar to that urged in this
lawsuit. Plaintiff must pursue his equal protection claims in that separate lawsuit. His conclusory
assertions that the Texas Bureau of Pardons and Paroles has “a governing interest in the policies that
effect [sic] the Windham School District since their policies effect [sic] their own policies and parole
decisions” lacks merit. Plaintiff has failed to allege any facts showing any of the Texas Board of
Pardons and Paroles official named as defendants in this lawsuit has ever had any personal
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involvement in, or personal knowledge of, the policies, practices, and procedures of the Windham
School.
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, Mississippi, 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 deprivation.’”); Zarnow v. City of Wichita Falls, Texas, 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 or her 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 Porter v. Epps, 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) (noting that 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
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or supervise amounts to deliberate indifference), cert. denied, 131 S. Ct. 2932 (2011). 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.
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Connick
v. Thompson, –– U.S. -––, 131 S. Ct. 1350, 1360, 179 L. Ed. 2d 417 (2011) (internal
quotation marks omitted, alteration in original) (quoting Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). To establish
that a state actor disregarded a known or obvious consequence of his actions, there
must be “actual or constructive notice” “that a particular omission in their training
program causes...employees to violate citizens’ constitutional rights” and the actor
nevertheless “choose[s] to retain that program.” Id. (citing Bryan Cnty., 520 U.S. at
407, 117 S. Ct. 1382). “A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference,” because
“[w]ithout notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program that
will cause violations of constitutional rights.” Id.
Porter v. Epps, 659 F.3d at 446-47. In this case, plaintiff has alleged no specific facts showing any
of the Texas Board of Pardons and Paroles officials named as defendants had any personal
involvement in, or personal knowledge of, any of the alleged denials of educational opportunity
about which plaintiff complains in this 42 U.S.C. § 1983 lawsuit.
Motion fort Appointment of Counsel
There is no right to the automatic appointment of counsel in civil cases. McFaul v.
Valenzuela, 684 F.3d 564, 581 (5th Cir. 2012); Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th
Cir. 2001); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1983). While § 1915(e)(1) authorizes
a federal court to request an attorney to represent an indigent litigant in a federal civil rights case,
indigent litigants generally possess no constitutional or statutory right to appointed counsel.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.), cert. denied, 552 U.S. 1062 (2007); Castro

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Romero v. Becken, 256 F.3d at 353-54; Salmon v. Corpus Christi ISD, 911 F.2d 1165, 1166 (5th Cir.
1990); Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989); Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987); Jackson v. Dallas Police Department, 811 F.2d 260, 261 (5th Cir. 1986); Branch v. Cole,
686 F.2d 264, 266 (5th Cir. 1982).
A trial court is not required to appoint counsel for an indigent party in a civil rights lawsuit
unless the case presents truly exceptional circumstances. McFaul v. Valenzuela, 684 F.3d at 581;
Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006); Ulmer v. Chancellor, 691 F.2d at 212.
Although no comprehensive definition of “exceptional circumstances” is practical, the existence of
such circumstances will necessarily turn on two basic considerations: (1) the type and complexity
of the case; and (2) the abilities of the individual bringing it. Cupit v. Jones, 835 F.2d at 86; Jackson
v. Dallas Police Department, 811 F.2d at 261; Branch v. Cole, 686 F.2d at 266. The United States
Court of Appeals for the Fifth Circuit has repeatedly urged district courts to consider the following
factors in ruling on an indigent plaintiff's request for appointment of counsel under Title 28 U.S.C.
Section 1915(e): (1) the type and complexity of the case; (2) whether the indigent plaintiff is capable
of presenting his or her case adequately; (3) whether the indigent plaintiff is in a position to
adequately investigate the case; and (4) whether the evidence would likely consist in large part of
conflicting testimony so as to require skill in the presentation of evidence and in cross-examination.
Baranowski v. Hart, 486 F.3d at 126; Castro Romero v. Becken, 256 F.3d at 354; Norton v.
Dimazana, 122 F.3d 286, 293 (5th Cir. 1997); Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir.
1992); Murphy v. Keller, 950 F.2d 290, 293 n.14 (5th Cir. 1992); Ulmer v. Chancellor, 691 F.2d at
213. The United States Court of Appeals for the Fifth Circuit has strongly encouraged appointment
of counsel when an indigent plaintiff's civil rights claims withstand scrutiny under 28 U.S.C. §
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1915(e)(2) and the second and third of the foregoing factors weigh in favor of the appointment of
counsel. Parker v. Carpenter, 978 F.2d at 193; Murphy v. Keller, 950 F.2d at 293. In addition, the
United States Court of Appeals for the Fifth Circuit has directed trial courts to consider whether the
appointment of counsel would be of service not only to the plaintiff, but also possibly to the court
and the defendant, through sharpening of issues, the shaping of the examination and crossexamination of witnesses, and, thus, the shortening of trial and assisting in a just determination.
Ulmer v. Chancellor, 691 F.2d at 213. It is also appropriate for the Court to consider whether the
indigent plaintiff has demonstrated an inability to secure the assistance of private counsel, especially
in view of the opportunity for a prevailing § 1983 plaintiff to recover attorney's fees. Jackson v.
Cain, 864 F.2d at 1242.
Plaintiff challenges the alleged refusal of state parole officials to treat him similarly to other
TDCJ inmates who do not have an ICE detainer lodged against them. Thus, the issues in this case
appear to be purely legal in nature, i.e., whether the detainer lodged against plaintiff justifies
disparate treatment for plaintiff in terms of parole eligibility and eligibility to participate in TDCJ
educational programs, and do not involve complex factual determinations.
In sum, plaintiff has failed to allege any facts showing he can overcome the defense from suit
afforded defendants by the doctrine of qualified immunity. Under such circumstances, plaintiff has
failed to establish this his claims involve exceptional circumstances warranting appointment of
counsel in this cause.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss (ECF no. 9) is
GRANTED such that all of plaintiff’s claims are DISMISSED WITH PREJUDICE for failure to
state a cause of action in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure.
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IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (ECF no.
13) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for discovery (ECF no. 14) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for continuance (ECF no. 15) is
DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this Memorandum
Opinion and 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 this case may be recorded in the “Three-Strikes
List.”
IT IS FINALLY ORDERED that motions pending with the Court, if any, are Dismissed as
Moot and this case is CLOSED.
It is so ORDERED.
SIGNED this 12 day of April, 2016.

_________________________________________________
FRED BIERY
UNITED STATES DISTRICT JUDGE

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