Martinez v. Texas Department Of Criminal Justice <font color="red">DO NOT DOCKET. CASE HAS BEEN REMANDED.</font>

November 15, 2022

In the United States District Court Nathan Ochsner, Clerk

for the Southern District of Texas

GALVESTON DIVISION

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No. 3:21-cv-258

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KAYLEEYSE MARTINEZ, PLAINTIFF,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., DEFENDANTS.

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MEMORANDUM OPINION AND ORDER

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JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

The defendants have moved to dismiss the plaintiff’s second amended

complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Dkts. 16, 25, 28. The court grants the motions as to the federal claims against

all defendants and, declining to exercise supplemental jurisdiction over the

state-law claims, remands the case to state court.

BACKGROUND1

Eugenio Espinoza Martinez was an inmate at the Clarence N.

1 When hearing a motion to dismiss under Rule 12(b)(6), the court must take

factual allegations in the complaint as true and construe them favorably to the

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Stevenson Unit in DeWitt County. Dkt. 15 ¶ 5.1. On January 7, 2019, he was

transferred to the Darrington Unit in Brazoria County, where the plaintiff

alleges that Martinez received insufficient care for his diabetes and

hypertension. Id. ¶¶ 5.1–5.2. On June 4, 2019, Martinez experienced trouble

breathing and severe back pain. Id. ¶ 5.3. Martinez was then transferred to

the prison’s infirmary, where the medical staff determined that he was

suffering from anxiety and did not need hospitalization. Id.

Two days later, after continued complaints from Martinez about his

breathing, Martinez was transported on a g back to the infirmary. Id. ¶ 5.4.

Later that morning, Martinez struggled to breathe as he tried to get to his

“dorm area” with a walker. Id. (alteration omitted). Eventually, he collapsed.

Id. Observing officers called for medical personnel to assist him with a

wheelchair. Id. The plaintiff alleges, however, that the responding medical

personnel stood over Martinez laughing and told him to get into the

wheelchair himself. Id. Martinez again asked infirmary personnel to

transport him to the hospital, but they did not. Id. Instead, Martinez was

returned to his dorm a short time later. Id.

plaintiff. Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.

1993). The allegations in this section are taken from the plaintiff’s pleadings.

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The next day, a fellow inmate notified a dorm officer that Martinez

needed medical attention. Id. ¶ 5.5. The dorm officer checked on Martinez

and “immediately called for medical attention.” Id. Martinez told the

responding officers that he could not breathe. Id. After medical personnel

arrived, they took him to the infirmary. Id. Later that evening, infirmary

personnel transferred Martinez to the University of Texas Medical Branch

(UTMB) Angleton Danbury Campus. Id. ¶ 5.6. Attending staff found

Martinez acutely ill with multi-organ system failure and transferred him to

UTMB-Galveston the next day. Id. Upon arrival at UTMB-Galveston,

Martinez was in septic shock; he tested positive for a staph infection. Id. He

died hours later. Id.

The plaintiff, Martinez’s daughter and sole heir, initially brought this

action in state court against UTMB-Correctional Managed Care, the Texas

Department of Criminal Justice (TDCJ), Warden Bruce Armstrong, and two

UTMB nurse practitioners. See Dkt. 2-2, Exhibit B at 12–13. The defendants

removed the case to this court on September 22, 2021. Dkt. 1. The plaintiff

amended her complaint on October 14, 2021. Dkt. 4. The plaintiff filed her

second amended complaint, her live pleading, on December 3, 2021. Dkt. 15.

The second amended complaint alleges state-law negligence, survival, and

wrongful-death claims and federal claims arising under the Eighth

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Amendment and 42 U.S.C. § 1983. Dkt. 15 9 6.A.1-6.J.1. The defendants

moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), (6). Dkts.

16, 25, 28.

II. LEGAL STANDARD

A. 12(b)(1)

Rule 12(b)(1) requires dismissal if the court “lacks the statutory or

constitutional power to adjudicate the case.” Home Builders Ass’n of Miss.,

Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). The party

asserting jurisdiction bears the burden of proof. Howery v. Allstate Ins. Co.,

243 F.3d 912, 916 (5th Cir. 2001). Federal courts have jurisdiction over a

claim between parties only if the plaintiff presents an actual case or

controversy. U.S. Const. art. III, § 2, cl. 1; Okpalobi v. Foster, 244 F.3d 405,

425 (5th Cir. 2001). “The many doctrines that have fleshed out that ‘actual

controversy’ requirement—standing, mootness, ripeness, political question,

and the like—are ‘founded in concern about the proper—and properly

limited—role of the courts in a democratic society.” Roark & Hardee LP v.

City of Austin, 522 F.3d 533, 541-42 (5th Cir. 2008) (quoting Allen v.

Wright, 468 U.S. 737, 750 (1984)).

To test whether the party asserting jurisdiction has met its burden, a

court may rely upon: “(1) the complaint alone; (2) the complaint

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supplemented by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Barrera–Montenegro v. United States, 74 F.3d 657, 659

(5th Cir. 1996).

B. 12(b)(6)

Under Rule 12(b)(6), a court should dismiss a case if a complaint fails

“to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6);

see Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–63 (2007). When considering a motion to

dismiss, the court accepts as true all well-pleaded facts and views those facts

in a light most favorable to the non-moving party. Campbell v. City of San

Antonio, 43 F.3d 973, 975 (5th Cir. 1995). But the complaint must still

provide enough facts for the court to infer that the non-moving party is liable

for the alleged misconduct. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at

555–56. The claim is facially plausible when the pleaded facts allow the court

to reasonably infer that the defendant is liable for the alleged conduct.

Petrobras Am., Inc. v. Samsung Heavy Indus. Co., No. CV H-19-1410, 2022

WL 3212931, at *3 (S.D. Tex. Aug. 8, 2022) (quoting Iqbal, 556 U.S. at 678).

“The court does not ‘strain to find inferences favorable to the plaintiffs’ or

‘accept conclusory allegations, unwarranted deductions, or legal

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conclusions.” Vanskiver v. City of Seabrook, No. H-17-3365, 2018 WL

560231, at *2 (S.D. Tex. Jan. 24, 2018) (quoting Southland Sec. Corp. v.

INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004)). Naked assertions

and formulaic recitals of the elements of the claim will not suffice. Iqbal, 556

U.S. at 678.

III. ANALYSIS

The plaintiff seeks relief under §1983 because the following

defendants allegedly violated Martinez’s Eighth Amendment rights: TDCJ,

Warden Armstrong, UTMB, and two nurses (Mbugua and Nwafor) who work

for UTMB-Correctional Managed Care. See Dkt. 15 {1 5.8—5.9, 6.A.2, 6.B.2,

6.C.2. The court considers the claims against the state entities and individual

defendants separately.

A. TDCJ and UTMB

1. The Eleventh Amendment

The Eleventh Amendment is a jurisdictional bar that applies to suits

“in which the State or one of its agencies or departments is named as the

defendant.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984); see also Cox v. Texas, 354 F. App’x 901, 902 (5th Cir. 2009) (per

curiam). Section 1983 authorizes suits against any “person” who deprives a

plaintiff of any “rights, privileges, or immunities” the Constitution secures.

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42 U.S.C. § 1983. The statute did not abrogate states’ sovereign immunity, so

states are not “persons” under § 1983. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 64–71 (1989). Plaintiffs can only overcome the Eleventh

Amendment if a state consents. Id. at 67.

“There is no bright-line test” to determine when a state’s agencies or

entities enjoy Eleventh Amendment immunity. Vogt v. Bd. of Com’rs of

Orleans Levee Dist., 294 F.3d 684, 689 (5th Cir. 2002). Instead, courts ask

whether the suit is “effectively against the sovereign state” despite the suit

naming “a state agency as the nominal defendant.” Stratta v. Roe, 961 F.3d

340, 350 (5th Cir. 2020) (quotation omitted). Six factors exist to guide courts

in this inquiry:

(1) whether state statutes and case law characterize the agency as

an arm of the state;

(2) the source of funds for the entity;

(3) the degree of local autonomy the entity enjoys;

(4) whether the entity is concerned primarily with local, as

opposed to statewide, problems;

(5) whether the entity has authority to sue and be sued in its own

name; and

(6) whether the entity has the right to hold and use property.

Vogt, 294 F.3d at 689 (citations omitted). “The most significant factor in

assessing an entity’s status is whether a judgment against it will be paid with

state funds.” Id. (quotation omitted).

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2. TDCJ

First, the plaintiff alleges that TDCJ violated Martinez’s Eighth

Amendment rights and seeks relief under § 1983. Dkt. 15 1] 5.9, 6.4.1-6.A.3.

The defendants argue that Texas’s sovereign immunity protects it against

liability under § 1983 because TDCJ is a state agency. See Dkt. 16 at 5-6

(arguing that § 1983 does not apply because the agency is not a “person”

within the meaning of the statute). The defendants are correct.

Though six factors help determine if a state agency enjoys sovereign

immunity, see Vogt, 294 F.3d at 680, the court need not consider the factors

here because the Fifth Circuit has squarely held that TDCJ enjoys Texas’s

immunity. Cox, 354 F. App’x at 902 (citing Harris v. Angelina Cnty., 31 F.3d

331, 338 n.7 (5th Cir. 1994); Aguilar v. Tex. Dep’t of Crim. Just., 160 F.3d

1052, 1054 (5th Cir. 1998)). Additionally, neither Texas nor TDCJ have

waived TDCJ’s sovereign immunity. Id. at 903. Accordingly, the court

dismisses the plaintiffs § 1983 claim against TDCJ for lack of jurisdiction.

3. UTMB

It is unclear whether the plaintiff makes a § 1983 claim against UTMB.

See id. 15.9 (“[E]ach [of the defendants] were acting under the color of law

and are liable pursuant to the Eighth Amendment of the Constitution of the

United States and pursuant to 42 U.S.C. § 1983”). But see id. 1 6.E.1-2 (not

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mentioning a § 1983 claim against UTMB). To the extent that the plaintiff

makes this claim, UTMB argues that the Eleventh Amendment shields it

from liability. Dkt. 25 at 4–5. The court agrees.

UTMB is a higher-learning institution under Texas Education Code

§ 61.003(5), which makes it a state agency under the Texas Government

Code § 572.002(10)(B). The Fifth Circuit has previously determined that

sovereign immunity applies to UTMB, and Texas has not waived it. See Lewis

v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011).

Therefore, the court dismisses the federal claims against UTMB for lack of

jurisdiction.

B. The Individual Defendants

42 U.S.C. 1983

Section 1983 provides a private right of action for the deprivation of

rights, privileges, and immunities secured by the constitution or laws of the

United States. 42 U.S.C. § 1983. A complaint under § 1983 must allege that

the acts complained of occurred under color of state law and that the

complaining parties were deprived of rights guaranteed by the Constitution

or laws of the United States. Parratt v. Taylor, 451 U.S. 527 (1981), overruled

on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Piotrowski v.

City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).

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A complaint under § 1983 must also allege that the constitutional or

statutory deprivation was intentional or due to deliberate indifference and

not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 835

(1994). Plaintiffs may bring a § 1983 suit against government employees in

their individual or official capacities or against a governmental entity.

Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (citing Bd. of

Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)).

Qualified Immunity

Section 1983 claims are subject to the affirmative defense of qualified

immunity. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

Qualified immunity protects government officials “from liability for civil

damages 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 (1982) (citation omitted).

Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“When considering a qualified[-]immunity defense raised in the

context of a Rule 12(b)(6) motion to dismiss, the [c]ourt must determine

whether ‘the plaintiff’s pleadings assert facts which, if true, would overcome

the defense of qualified immunity.’” Rojero v. El Paso Cnty., 226 F. Supp. 3d

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768, 776–77 (W.D. Tex. 2016) (quoting Backe v. LeBlanc, 691 F.3d 645, 648

(5th Cir. 2012)). “Thus, a plaintiff seeking to overcome qualified immunity

must plead specific facts that both allow the court to draw the reasonable

inference that the defendant is liable for the harm he has alleged and that

defeat a qualified immunity defense with equal specificity.” Backe, 691 F.3d

at 648.

To determine whether qualified immunity applies, courts undertake a

two-step analysis. Tolan v. Cotton, 572 U.S. 650, 655 (2014). “Courts have

discretion to decide the order in which to engage these two prongs.” Id. at

656. First, the court asks whether the officer in fact violated a constitutional

right. Id. at 655–56. Second, the court asks “whether the right in question

was ‘clearly established’ at the time of the violation.” Id. at 656 (quoting Hope

v. Pelzer, 536 U.S. 730, 739 (2002)). The “court may rely on either prong of

the defense in its analysis.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.

2010). “To say that the law was clearly established, we must be able to point

to controlling authority—or a robust consensus of persuasive authority—that

defines the contours of the right in question with a high degree of

particularity.” Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013)

(internal quotation marks and citation omitted). “In essence, a plaintiff must

allege facts sufficient to demonstrate that no reasonable officer could have

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believed his actions were proper.” Callahan, 623 F.3d at 253.

3. Armstrong

The plaintiff alleges that Warden Armstrong is liable under 8 1983 for

violating Martinez’s Eighth Amendment rights. Dkt. 15 9] 6.B.1-6.B.3. The

defendants argue that qualified immunity protects Armstrong? because the

plaintiff pleaded no facts showing his personal involvement in any unlawful

activity. Dkt. 16 at 12-13 (citing Thompson v. Steele, 709 F.2d 381, 382 (5th

Cir. 1983)).

A supervisor is liable for his subordinates’ unlawful acts under § 1983

“only if (1) he affirmatively participates in the acts that cause the

constitutional deprivation, or (2) he implements unconstitutional policies

that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d

A440, 446 (5th Cir. 2011) (citation omitted); see also Valentine v. Jones, 566

F. App’x. 291, 294 (5th Cir. 2014) (per curiam). Indeed, “vicarious liability”

does not apply to § 1983 suits. Iqbal, 556 U.S. at 676; see also Coleman v.

2 Though it is not clear from the pleadings whether the plaintiff asserts

federal claims against Armstrong in his official or individual capacity, the court

notes that Texas’s Eleventh Amendment immunity prevents any claim against him

in his official capacity. Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officers sued

for damages in their official capacity are not ‘persons’ for purposes of the [§ 1983]

suit because they assume the identity of the government that employs them.”)

(internal quotation omitted). Therefore, the court construes them as individual-

capacity claims.

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Hous. Indep. Sch. Dist., 113 F.3d 528, 534–35 (5th Cir. 1997). Moreover, a

plaintiff’s claim against a supervisor for her subordinates’ actions must show

“that the supervisor acted, or failed to act, with deliberate indifference to

[their subordinates’] violations of others’ constitutional rights.” Porter, 659

F.3d at 446 (internal quotation omitted). “‘Deliberate indifference’ is a

stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Id. at 446–47

(quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)); see also Gobert v.

Caldwell, 463 F.3d 339, 349 (5th Cir. 2006) (characterizing deliberate

indifference as “an extremely high standard to meet”) (quotation omitted).

The plaintiff does not allege facts showing that Armstrong’s acts

deprived Martinez of constitutional rights. Nor does the plaintiff allege that

Armstrong implemented a policy that led his subordinates to violate

Martinez’s constitutional rights. Critically, the complaint does not identify

Armstrong’s acts or omissions that show deliberate indifference to

Martinez’s condition; instead, the plaintiff’s allegations respecting

Armstrong are merely conclusory—for example, that “[t]he acts, omissions,

and failures of . . . Armstrong on the occasions in question were

unreasonable and were the proximate and producing causes of the injuries

and untimely death of [Martinez] and the damages suffered by [the]

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[p]laintiff.” Id. Accordingly, the court dismisses the plaintiff's federal claims

against Armstrong.

4. Mbugua and Nwafor

The plaintiff claims that two UTMB nurse practitioners, Adaobi

Nwafor and David Mbugua, violated Martinez’s Eighth Amendment right

against cruel and unusual punishment when they “failed to recognize and

ignored” Martinez’s infection. Dkt. 15 915.8, 6.C.2. The nurse—defendants

argue that qualified immunity protects them because (1) the plaintiff did not

allege facts showing the nurses’ personal involvement with any alleged

violation of Martinez’s rights and (2) the plaintiff did not sufficiently show

the nurses’ deliberate indifference. Dkt. 28 at 4-8. The court will dispose of

this claim on deliberate-indifference grounds.

Deliberate indifference goes to the first prong of the qualified-

immunity test—whether the nurses violated a clearly established

constitutional right. Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 755

(5th Cir. 2001). This is a subjective test. See id. (citing Farmer, 511 U.S. at

834). Deliberate indifference is a higher standard than even gross

negligence. Hare v. City of Corinth, 74 F.3d 633, 645 (5th Cir. 1996). It

involves “unnecessary and wanton infliction of pain,” Estelle v. Gamble, 429

U.S. 97, 103 (1976) (quotation and citations omitted), or disregard of “serious

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medical needs.” Baughman v. Hickman, 935 F.3d 302, 309 (5th Cir. 2019)

(citation omitted). A plaintiff might also demonstrate deliberate indifference

where a medical professional “refused to treat him, ignored his complaints,

[or] intentionally treated him incorrectly.” Perniciaro v. Lea, 901 F.3d 241,

258 (5th Cir. 2018). In cases where the plaintiff is challenging medical

treatment as cruel and unusual punishment, “[u]nsuccessful medical

treatment, acts of negligence, or medical malpractice do not constitute

deliberate indifference.” Gobert, 463 F.3d at 346 (citation omitted); see also

Estelle, 429 U.S. at 106.

The plaintiff makes broad-stroke allegations against the “medical” or

“infirmary” personnel at the Darrington Unit. But none of the specific facts

in the complaint related to Martinez’s medical treatment identify Mbugua or

Nwafor. See id ¶¶ 5.3–5.8. The complaint’s only allegation against Mbugua

and Nwafor is that they “failed to recognize and ignored the severity of

infection from which [Martinez] was suffering.” Dkt. 15 ¶ 5.8. That’s a mere

negligence claim and does not implicate deliberate indifference.

Moreover, “[p]ersonal involvement is an essential element of a civil

rights cause of action,” Thompson, 709 F.2d at 382 (citing Rizzo v. Goode,

423 U.S. 362, 371–72 (1976). Therefore, the court cannot “strain” to infer

that the complaint’s references to “medical personnel” or “infirmary

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personnel” relate specifically to either Mbugua or Nwafor. Cf. Southland,

365 F.3d at 361. The remaining allegations against the nurses are conclusory.

For example, the plaintiff alleges that Mbugua and Nwafor “chose to, and

intentionally utilized the confines of the prison, and restraints there (real and

personal property) to continue [Martinez’s] confinement, pain, and

anguish.” Id. ¶ 6.C.3. The plaintiff simply has not pleaded facts sufficient to

state a claim to relief that is plausible on its face.

Because the plaintiff failed to plead facts sufficient to show a

constitutional violation, the court need not reach the qualified-immunity

test’s second prong. Cf. Domino, 239 F.3d at 755–56 (declining to reach the

second prong on a summary-judgment appeal because the facts viewed in a

light most favorable to the nonmovant showed no deliberate indifference).

Accordingly, the court dismisses the plaintiff’s claims against Mbugua and

Nwafor.

C. Leave to Amend

The plaintiff has requested leave to amend her complaint a third time

so that she may omit the § 1983 claims against UTMB and TDCJ. Dkt. 27 at

2. Generally, courts should “freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). But as the court has already dismissed the

claims against UTMP and TDCJ as barred by the Eleventh Amendment,

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there is no need for the plaintiff to replead only to exclude those claims.

Therefore, the court denies the plaintiff’s request for leave to amend as moot.

* * *

The court grants the defendants’ motions to dismiss. Dkts. 16, 25, 28.

All federal claims against the defendants are dismissed. Because the court

lacks original jurisdiction over the plaintiff’s state-law claims, the court

declines to exercise supplemental jurisdiction over these remaining claims.

28 U.S.C. § 1367(c)(3). The court therefore remands this action to the 149th

Judicial District Court of Brazoria County. All other pending motions are

denied without prejudice. Dkts. 8, 26.

Signed on Galveston Island this 15th day of November, 2022.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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