The opinion
UNITED STATES DISTRICT COURT March 24, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
ISAAC ZARATE, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 4:24-CV-02142
§
FNU MOSLEY, et al., §
§
Defendants. §
MEMORANDUM AND ORDER
Plaintiff Isaac Zarate is an inmate in the custody of the Texas Department of Criminal
Justice (“TDCJ”). He filed a civil rights complaint.
Defendants, Christopher Gibson, Brittney Tilley, Amanda Rappolee, Victor Gates,
Christine Alfred, Jose Alvarado, Camille Phillips, Idowu Akinroabu, Courtney Mosley, and
Wanda Isbell have filed an amended motion to dismiss. Defendant Dr. Pavan Chilovoju filed a
separate motion to dismiss. Zarate has not responded to either of the motions. Based on the
pleadings, the motions, and the applicable law, the defendants’ motions are granted and the
complaint is dismissed. The reasons for this decision are set out below.
I. Background
Zarate complains that the defendants, TDCJ employees, failed to protect him from assault
by another inmate, used excessive force against him, seized his legal materials and denied him
access to the law library, and retaliated against him by using excessive force and filing false
disciplinary charges against him. He also complains about various staffing issues at his unit and
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the handling of his grievances, how he was treated during Ramadan, and denial of medical care.
He seeks $1 Million in compensatory damages, and various forms of injunctive relief.
II. Standard of Review
The defendants seek dismissal on grounds of Eleventh Amendment immunity and qualified
immunity, and for failure to state a claim on which relief can be granted.
A. Rule 12(b)(1)
A federal court must dismiss a case for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to
adjudicate the plaintiff=s claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143 F.3d
1006, 1010 (5th Cir.1998). In resolving a motion under Rule 12(b)(1), a court may refer to evidence
outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985).
When the jurisdictional issue is of a factual nature rather than facial, plaintiff must establish subject
matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans Admin., 874 F.2d 1092,
1096 (5th Cir.1989).
B. Rule 12(b)(6)
In reviewing a motion to dismiss under rule 12(b)(6), the complaint must be liberally
construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986).
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. 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. 662, 678 (2009) (internal quotation marks and citations omitted).
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III. Analysis
The defendants argue that they are immune from suit for damages in their official capacities
under the Eleventh Amendment, that they are qualifiedly immune and that the plaintiff fails to
state claim on which relief can be granted.
A. Eleventh Amendment Immunity
A[I]n the absence of consent a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh Amendment.@ Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A suit for damages against a state official in his
official capacity is not a suit against the individual, but against the state. Hafer v. Melo, 502 U.S.
21, 25 (1991). The defendants are entitled to dismissal of all official capacity claims for money
damages.
B. Staffing Decisions
Zarate complains that defendant Victor Alvarado, a TDCJ Major, “failed to remove Sgt.
Phillips from Seg on X Pod despite knowing she does not resolve problems.” Amended Complaint
at 4. Zarate does not allege that Sergeant Phillips violated his rights, he merely complains that he
does not think Phillips does a good job. This does not identify any violation of Zarate’s rights,
and this claim must therefore be dismissed.
C. Failure to Protect
Zarate alleges that Warden Gibson and Law Librarian Jones failed to protect him from an
assault by another inmate. Zarate contends that Warden Gibson is liable because he was “notified”
about danger to Zarate. Zarate does not assert any facts about when Gibson was so notified, what
he was notified about, or even when or by who he was allegedly assaulted. He therefore fails to
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plead any facts showing that Gibson’s or Jones’s alleged actions or omissions had any causal
relationship with any alleged assault.
In order to avoid dismissal for failure to state a claim, a plaintiff
must plead specific facts, not mere conclusory allegations....@ Elliott
v. Foufas, 867 F.2d 877, 881 (5th Cir.1989). . AConclusory
allegations and unwarranted deductions of fact are not admitted as
true@ by a motion to dismiss. Associated Builders, Inc. v. Alabama
Power Company, 505 F.2d 97, 100 (5th Cir.1974).
Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
D. Access to Courts
Zarate contends that several defendants violated his right of access to the courts. In
particular, he alleges that defendant Gates verbally threatened him not to go to the law library, that
defendant Alfred lied to get him thrown out of the law library, and that defendant Jones threw him
out of the law library and failed to give him legal correspondence. Prison inmates have a First
Amendment right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). This right
requires that prison officials provide a reasonable opportunity to file non-frivolous legal claims.
Lewis v. Casey, 518 U.S. 343, 353-54 (1996). AWhile the precise contours of a prisoner=s right of
access to the courts remain somewhat obscure, the Supreme Court has not extended this right to
encompass more than the ability of an inmate to prepare and transmit a necessary legal document
to a court.@ Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). To prevail on a claim of denial
of access to the courts, a plaintiff must demonstrate actual harm. Lewis, 518 U.S. at 351.
To prevail on a claim that his right of access to court has been violated, a prisoner must
demonstrate prejudice or harm by showing that his ability to pursue a Anonfrivolous,@ Aarguable@
legal claim was hindered by the defendants' actions. See Christopher v. Harbury, 536 U.S. 403,
415 (2002) (internal quotations omitted); Lewis v. Casey, 518 U.S. at 351. See also Johnson v.
Rodriguez, 110 F.3d 299, 311 (5th Cir.1997). He must identify the nonfrivolous, arguable
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underlying claim. Id. Zarate does not identify any such claim, or any litigation that he was actually
hindered from pursuing. He therefore fails to state a claim for denial of access to the courts.
E. Excessive Force
Zarate alleges excessive force by defendants Gates and Phillips.
1. Defendant Gates
Zarate alleges that defendant Gates “assaulted” him. He offers no other facts in support of
this claim. This allegation is wholly conclusory and is subject to dismissal. Guidry v. Bank, 954
F.2d at 281.
2. Defendant Phillips
Zarate alleges that defendant Phillips maced him unnecessarily. In assessing a claim that
a prison official used excessive force, the question to be answered is Awhether force was applied
in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.@ Hudson v. McMillian, 503 U.S. 1, 6 (1992)(internal quotation marks
and citations omitted). In Hudson, the Court concluded that
whenever prison officials stand accused of using excessive physical
force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.
Id. at 6-7. The Fifth Circuit has identified several factors to consider:
1. the extent of the injury suffered;
2. the need for the application of force;
3. the relationship between the need and the amount of force used;
4. the threat reasonably perceived by the responsible officials; and
5. any efforts made to temper the severity of a forceful response.
Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992).
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Zarate alleges no facts supporting his claim that the use of mace was excessive under the
circumstances. Phillips is entitled to dismissal of this claim.
F. Retaliation
Zarate alleges that several defendants retaliated against him.
To state a valid claim for retaliation under section 1983, a prisoner
must allege (1) a specific constitutional right, (2) the defendant's
intent to retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation.@
Bibbs v. Early, 541 F.3d 267, 270 (5th Cir.2008) (citation omitted).
1. Defendant Alfred
Zarate alleges that defendant Alfred retaliated against him for filing a grievance. He does
not allege that the grievance involved Alfred, or that Alfred had any knowledge of the grievance.
He therefore, at a minimum, fails to allege facts showing that Alfred intended to retaliate against
him, or that the grievance was the cause of Alfred’s alleged action. This claim must be dismissed.
2. Defendant Jones
Zarate also alleges that defendant Jones, the Law Librarian, retaliated against him for filing
the grievance. Again, he does not allege any facts showing that Jones was aware of the grievance.
He therefore fails to allege facts showing retaliatory intent or causation. This claim must be
dismissed.
3. Defendant Phillips
Zarate alleges that the macing incident discussed above was retaliation for filing a
grievance. He further alleges that Phillips filed false disciplinary charges against him in retaliation
for the grievance.
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Zarate does not allege any facts showing that the grievance concerned Phillips or that
Phillips had any knowledge of the grievance, nor does he allege any chronology of events showing
retaliation. This claim must be dismissed.
4. Defendant Okinrolabu
Zarate’s allegations concerning defendant Okinrolabu are not clear, but he seems to allege
that this defendant told other inmates not to give Zarate a food tray in retaliation for Zarate asking
to speak to a sergeant. Again, Zarate alleges no chronology from which retaliatory intent or
causation can be inferred. This claim, too, must be dismissed.
G. Due Process
Zarate alleges that defendant Alvarado demoted Zarate to a lower classification without
bringing Zarate before the Unit Classification Committee. An inmate, however, has no protected
liberty interest in his classification. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).
There was therefore no deprivation of life, liberty, or property, and no process was due.
Zarate next alleges that Warden Gibson denied him due process by failing to properly
investigate Zarate’s grievance. Inmates, however, have no protected liberty interest in the handling
of their grievances. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
Zarate also alleges that his parole was affected because C.O. Rappolee did not follow TDCJ
procedures. Because parole is speculative, however, inmates have no protected liberty interest in
parole. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995). Zarate fails to state a claim for denial of
due process.
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H. Deliberate Indifference to Serious Medical Needs
Zarate alleges that several defendants were deliberately indifferent to his serious medical
needs. The Eighth Amendment Aestablish[es] the government's obligation to provide medical care
for those whom it is punishing by incarceration.@ Estelle v. Gamble, 429 U.S. 97, 103 (1976).
Thus, an Eighth Amendment violation may occur where Adenial of medical care may result in pain
and suffering which no one suggests would serve any penological purpose.@ Id. To rise to the
level of a constitutional violation, however, prison officials must exhibit deliberate indifference to
the prisoner=s serious medical needs. Farmer v. Brennan, 511 U.S. 825, 828 (1994). ADeliberate
indifference@ is more than mere negligence, .but Asomething less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will result.@ Farmer, 511 U.S. at 835.
Rather, deliberate indifference requires that the defendant be subjectively aware of a substantial
risk of serious harm to the inmate and recklessly disregard that risk. Id. at 829, 836.
Deliberate indifference is an extremely high standard to meet . . .
[T]he plaintiff must show that the officials Arefused to treat him,
ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.@
Domino v. Texas Dept of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)(quoting Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
1. Defendant Mosley
Zarate alleges that defendant Mosley failed to treat his injuries and improperly charged him
for a non-aspirin. Zarate does not identify the injuries he alleges that Mosley failed to treat, nor
any other facts from which it can be inferred that he had a serious medical need or that Mosley
was deliberately indifferent.
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2. Defendant Isbell
Zarate alleges in conclusory fashion that defendant Isbell is dismissive of his complaints
and forgets who she is treating. He does not allege the existence of any serious medical need or
that Isbell’s actions rose to the level of a wanton disregard for such needs.
3. Defendant Chiluvoju
Zarate complains that defendant Dr. Pavan Chiluvoju failed to prescribe medication when
Zarate complained of pain in his teeth, failed to give Zarate a partial denture, and tried to extract a
tooth over Zarate’s objection. Zarate does not allege any facts indicating what actual dental
problems he suffered from. Moreover, Zarate’s allegation that Dr. Chiluvoju tried to extract
Zarate’s tooth shows that Dr. Chiluvoju attempted to address Zarate’s dental issues and did not
ignore his complaints or otherwise evince a wanton disregard for Zarate’s medical needs. Zarate’s
disagreement with the treatment provided does not demonstrate deliberate indifference.
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute
deliberate indifference, nor does a prisoner's disagreement with his medical treatment, absent
exceptional circumstances.” Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013)(internal
quotation marks and citations omitted). Zarate fails to state a claim for relief against Dr. Chiluvoju.
I. Religious Freedom
Zarate contends that defendant Akinrolabu violated his rights under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”) by ordering other inmates not to give Zarate a
food tray during Ramadan. To the extent that Zarate seeks injunctive relief, his claims are moot
because he has since been transferred to another unit and neither Akinrolabu nor any of the other
defendants has any contact with Zarate. In addition, RLUIPA does not create any individual-
capacity claims against state employees, Sossamon v. Lone Star State of Texas, 560 F.3d 316, 328-
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30 (5 Cir. 2009), and the State has sovereign immunity from such claims, id. at 331. Zarate is
therefore not entitled to any relief under RLUIPA. Moreover, Zarate is not entitled to
compensatory damages for a possible First Amendment violation under the Prison Litigation
Reform Act because he does not allege any physical injury arising from Akinroabu’s alleged
actions. See 42 U.S.C. § 1997e; Hutchins v. McDaniels, 512 F.3d 193, 196 (5" Cir. 2007). He
therefore fails to state a claim on which relief can be granted.
IV. Conclusion
For the foregoing reasons, it is ORDERED as follows:
1. The defendants’ motions to dismiss (Doc. # 45 and 69) are GRANTED;
2. Zarate’s claims for damages against the defendants in their official capacities are
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction;
3. Zarate’s individual capacity claims are DISMISSED WITH PREJUDICE; and
4. All other pending motions are DENIED AS MOOT.
It is so ORDERED.
SIGNED on March 24, 2025, at “7, eXas.
United States District Judge
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