# Rivens-Baker Jr v. Larue

> District Court, S.D. Texas · August 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10676814

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10676814

## How later opinions describe it (automated extraction)

- holding that claims barred by sovereign immunity must be dismissed under Rule 12(b)(1) without prejudice
- holding that claims barred by sovereign immunity must be dismissed under Rule 12(b)(1) without prejudice

## Opinion text

Southern District of Texas
ENTERED
August 16, 2023
IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DWAYNE RIVENS-BAKER, JR., §
Plaintiff,
Civil Action No. H-22-2480
JEREMY LARUE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed a civil lawsuit
under 42 U.S.C. § 1983 against seven Texas Department of Criminal Justice (“TDCJ”)
employees, including defendant Jeremy Larue. Larue filed a motion to dismiss predicated on
his entitlement to qualified immunity (Docket Entry No. 14), to which plaintiff filed a

response (Docket Entry No. 23).
Having considered the motion, the response, the record, and the applicable law, the
Court GRANTS the motion to dismiss and DISMISSES plaintiff's claims against Larue for
the reasons shown below.
I. BACKGROUND AND CLAIMS

Plaintiff complains that TDCJ employees used excessive force against him on five
occasions at the Ferguson Unit during 2021 and denied him due process at one or more
subsequent disciplinary hearings. In pleading his claims against defendant Larue, plaintiff
alleges that Larue was deliberately indifferent to his health and safety in not investigating or

remedying his grievances and complaints regarding the uses of excessive force. Plaintiff
seeks monetary damages against Larue in his individual and official capacity.
Larue moves to dismiss plaintiff's claims under Federal Rules of Civil Procedure
(“FRCP”) 12(b)(1) and 12(b)(6).
II. LEGAL STANDARDS
A. ERCP 12(b)(1)
Under FRCP 12(b)(1), a case must be dismissed if the court lacks subject matter
jurisdiction. FED. R. Civ. P. 12(b)(1). A court properly dismisses a case for lack of subject
matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate
the case.” Hooks v. Landmark Indus., Inc., 797 F.3d 309, 312 (Sth Cir. 2015). “Ultimately,
a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears
certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle
plaintiff to relief.” Ramming v. United States, 281 F.3d 158, 161 (Sth Cir. 2001). Once
subject matter jurisdiction has been challenged, the party asserting jurisdiction retains the
burden to prove that jurisdiction does exist. Haverkamp v. Linthicum, 6 F 4th 662, 668 (Sth
Cir, 2021).
A court’s dismissal of a claim for lack of subject matter jurisdiction is “not a
determination of the merits and does not prevent the plaintiff from pursuing a claim in a court
that does have proper jurisdiction.” Jd. Thus, a FRCP 12(b)(1) dismissal should be without
prejudice. Mitchell v. Bailey, 982 F.3d 937, 944 (Sth Cir. 2020).

B. FRCP 12(b)(6)
FRCP 12(b)(6), in turn, provides for dismissal of an action for “failure to state a claim

upon which relief can be granted.” FED. R. CIv.P. 12(b)(6). “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. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is said to be plausible if the complaint contains “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. “[A] plaintiff's obligation to prove the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 554-55. In considering
a FRCP 12(b)(6) motion, courts generally must accept the factual allegations contained in the
complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (Sth Cir.
2009). The complaint must, however, contain sufficient factual allegations, as opposed to
legal conclusions, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009); see Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (Sth Cir. 2012).
The pleadings also must claim that the plaintiff is entitled to relief under a valid legal theory.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger v. Jowers, 404 F.3d 371, 373 (Sth
Cir. 2005).

C. Qualified Immunity
The doctrine of 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). “Qualified immunity balances two important interests—the need
to hold public officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law.” Mudllenix v. Luna,
577 US. 7, 12 (2015).
The defense of qualified immunity may be raised in a motion to dismiss pursuant to
FRCP 12(b)(6). Backe v. LeBlanc, 691 F.3d 645, 648 (Sth Cir. 2012). Once a defendant
raises a qualified immunity defense, the burden shifts to the plaintiff to allege that (1) the
defendant violated a statutory or constitutional right, and (2) the right was “clearly
established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011); Ratliff v. Aransas County, 948 F.3d 281, 287 (Sth Cir. 2020). A clearly established
right is one that is sufficiently clear that every reasonable official would have understood that
what he is doing violates that right. Mullenix, at 11. While a case need not be directly on
point, “existing precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft, 563 U.S. at 741. Courts have discretion to decide which of the two prongs
of qualified immunity analysis to address first. Pearson, 555 U.S. at 236.
II. ANALYSIS
A. Official Capacity Claims
Plaintiff seeks monetary damages against Larue in his official capacity. Such claims

are barred by sovereign immunity under the Eleventh Amendment, Hafer v. Melo, 502 U.S.
21, 25 (1991), and must be dismissed for lack of subject matter jurisdiction. See Warnock v.
Pecos County, 88 F.3d 341, 343 (Sth Cir. 1996) (holding that claims barred by sovereign
immunity must be dismissed under Rule 12(b)(1) without prejudice). Plaintiff does not
establish that this Court has subject matter jurisdiction as to his claims for monetary damages
against Larue in his official capacity.
Defendant’s motion to dismiss plaintiffs official capacity claims against him under
FRCP 12(b)(1) is GRANTED and the claims are DISMISSED WITHOUT PREJUDICE.
B. Qualified Immunity
Plaintiff seeks monetary damages against Larue in his individual capacity for the uses
of excessive force. He claims that Larue took no investigative or remedial action regarding
the grievances and complaints plaintiff submitted. (Docket Entry No. 1, pp. 3, 4, 15, 16.)
Plaintiff further claimed in a grievance that Larue “fail[ed] to properly train his staff’ and
allowed them to break the law and violate plaintiff's constitutional rights. (Docket Entry No.
2, p. 14.)

Defendant Larue argues that plaintiff's individual capacity claims against him should
be dismissed as barred by qualified immunity. Larue contends that plaintiff fails to plead
factual allegations sufficient to show that he was personally involved in the use of excessive
force incidents made the basis of this lawsuit. He further contends that the failure to resolve
plaintiff's grievances and complaints to his satisfaction does not raise an issue of
constitutional dimension.
“Personal involvement is an essential element of a civil rights cause of action.”
Thompson v. Steele, 709 F.2d 381, 382 (Sth Cir. 1983). There is no vicarious or respondeat
superior liability of supervisors under section 1983. Thompkins v. Belt, 828 F.2d 298, 303-
04 (Sth Cir. 1987); Turner v. Lt. Driver, 848 F.3d 678, 695 (Sth Cir. 2017). A supervisory
official may be held liable 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. Zadeh v. Robinson, 928 F.3d 457, 473 (Sth Cir. 2019); Porter v.
Epps, 659 F.3d 440, 446 (Sth Cir. 2011). Plaintiff pleads no factual allegations claiming that
Larue implemented unconstitutional policies that causally resulted in the constitutional
violations.
To survive the pending FRCP Rule 12(b)(6) motion to dismiss, plaintiff's complaint
must plead sufficient factual allegations to raise a viable claim for relief against Larue in his
individual capacity for violation of plaintiff's constitutional rights.’ A careful review of

'It bears repeating that plaintiff seeks only monetary relief in this lawsuit. Accordingly, all
claims against Larue in his official capacity are barred by Eleventh Amendment sovereign immunity.

plaintiff's pleadings reveals no factual allegations showing that Larue had any personal
involvement in the use of excessive force incidents or that there was a causal connection
between any conduct by Larue in his individual capacity and a particular use of excessive
force incident. Prisoners have no constitutional right to the satisfactory investigation or
resolution of administrative grievances or informal complaints. See Geiger v. Jowers, 404
371, 374 (Sth Cir. 2005). Consequently, plaintiffs claims that Larue failed to investigate
or remedy his grievances and complaints regarding the excessive force incidents does not raise
aviable claim for relief under section 1983, and plaintiff fails to surmount Larue’s entitlement

to qualified immunity.
Liberally construed, plaintiff's pleadings also claim that Larue failed to train
adequately the defendant employees who used excessive force against him. However,
for a supervisor to be liable for failure to train, the focus must be on the
adequacy of the training program in relation to the tasks the particular officers
must perform. Roberts v. City of Shreveport, 397 F.3d 287, 293 (Sth Cir. 2005)
(cleaned up). Moreover, “for liability to attach based on an ‘inadequate
training’ claim, a plaintiff must allege with specificity how a particular training
program is defective.” Id.
Goodman y. Harris County, 571 F.3d 388, 395 (Sth Cir. 2009). Plaintiffs pleadings do not

meet these standards, nor does his response to the motion to dismiss set forth any additional
factual allegations sufficient to state a viable claim for failure to train. To the contrary,
plaintiff argues in his response that his current pleadings are legally and factually sufficient

See Hafer v. Melo, 502 U.S. 21, 25 (1991).

to support his Eighth Amendment claims against Larue. No viable constitutional violation
is pleaded, and Larue is entitled to dismissal of the claim as barred by qualified immunity.
Although unclear, plaintiff also appears to seek monetary damages from Larue for
alleged due process violations attendant to one or more disciplinary convictions. To recover
damages for an allegedly unconstitutional disciplinary conviction, a section 1983 plaintiff
must prove that the conviction has been “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determinations, or called
into question by a federal court’s issuance of a writ of habeas corpus [under] 28 U.S.C. §
2254.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Edwards v. Balisok, 520 U.S. 641,
643-44 (1997).
Plaintiff does not allege that the disciplinary convictions underlying his due process
claims have been reversed or otherwise set aside. Consequently, his claims for monetary
damages are currently barred by Heck and must be dismissed.
For the above reasons, defendant Larue is entitled to qualified immunity as to
plaintiffs Eighth Amendment claims against him in his individual capacity, and the motion

to dismiss is GRANTED. Plaintiffs claims against Larue for damages arising from alleged
due process violations regarding his disciplinary convictions are DISMISSED WITH
PREJUDICE until such time as the Heck conditions are met.

IV. CONCLUSION
The Court ORDERS as follows:
1. Defendant Jeremy Larue’s motion to dismiss (Docket Entry No. 14) is
GRANTED.
2. Plaintiffs claims for monetary damages against Larue in his official capacity
are DISMISSED WITHOUT PREJUDICE.
3. Plaintiff's remaining claims for monetary damages against Larue are
DISMISSED WITH PREJUDICE.
4, THIS IS AN INTERLOCUTORY ORDER.
Signed at Houston, Texas, on this the Jd. Pay of August, 2023.

KEITH P.“ELLISON
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10676814. Public record. Not legal advice.