Hodge v. Zimmerman

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

THEOTIS LEE HODGE, §

TDCJ-CID No. 00504582, §

§

Plaintiff, §

§

v. § 2:22-CV-200-Z-BR

§

D. ZIMMERMAN, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO

GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court is a Motion for Summary Judgment (the “Motion”) filed by Defendants

Dustin Zimmerman, James Judd, Jaime Villegas, Stephanie Patton, Justin Perez, Vickie Brown,

Amy Garcia, Angelique Turner, Kim Massey and Timothy Hooper. (ECF 92). For the reasons

stated herein, the Magistrate Judge recommends that the Motion be GRANTED.

I. FACTUAL BACKGROUND

Plaintiff Theotis Lee Hodge (“Hodge”), a prisoner at the Clements Unit of the Texas

Department of Criminal Justice (“TDCJ”), alleges that his constitutional rights were violated when

he was charged with a Code 10 disciplinary violation for possessing knowledge of a prohibited

item—a cell phone—within the unit. (ECF 3 at 6).1 He received the disciplinary charge on October

29, 2021, and the charge was heard on November 22, 2021. (Id. at 9). Hodge’s claims in this case

arise from the disciplinary hearing and his efforts to get his disciplinary conviction vacated.

Specifically, Hodge alleges that Defendant Dustin Zimmerman (“Zimmerman”) gave him

1Page citations to Hodge’s Complaint refer to the electronic page number assigned by the Court’s electronic

filing system.

inadequate notice, pursuant to TDCJ policy, of the disciplinary charge against him. (Id. at 6). He

further claims that his first acting counsel representative, Justin Perez (“Perez”), failed to

adequately advise him properly, failed to ensure that he understood the charges, and failed to

interview relevant witnesses. (Id. at 7-8). He claims that his disciplinary hearing officer, James

Judd (“Judd”), violated his due process rights by failing to provide adequate notice of the

disciplinary charge under the requirements of Code 10, and did not allow him an opportunity to

present evidence at the hearing, including the testimony of his cellmate. (Id. at 9-11). Hodge claims

that Defendant Vickie Brown (“Brown”), who replaced Perez as his representative, provided

inadequate assistance at his disciplinary hearing. (Id. at 12-13). Hodge sues Jaime Villegas

(“Villegas”) because, Hodge claims, prison policy bars the officer who completed the disciplinary

report at issue from being on the disciplinary hearing committee. (Id. at 13-14). He also sues Amy

Garcia (“Garcia”) as a member of the unit classification committee for violating his due process

rights in the disciplinary hearing and for failing to prevent Villegas from violating his rights. (Id.

at 16-18).

Ultimately, Hodge was found guilty at his disciplinary hearing and was assessed

punishments, including loss of good-time credits, that he claims impacted his right to a parole

review hearing. (Id. at 21; ECF 94 at 12). Hodge sues Defendants Stephanie Patton (“Patton”),

Angelique Turner (“Turner”) and Timothy Hooper (“Hooper”) for violating his due process rights

in denying the grievances he filed seeking redress from his disciplinary hearing. (Id. at 16-19, 22).

Lastly, he sues Kim Massey (“Massey”) as the supervisor of state classification and records for

disregarding his request for an inquiry into his disciplinary hearing. (Id. at 21-22).

Defendants filed this Motion, alleging that they are entitled to qualified immunity because

Hodge’s claims are barred and, as a result, he has failed to state a constitutional violation as a

matter of law. (ECF 92). Hodge did not respond to the Motion.

II. SUMMARY JUDGMENT STANDARD

A. Summary Judgment is Proper if No Genuine Dispute as to Any Material Fact.

The purpose of summary judgment is to isolate and dispose of factually unsupported claims

or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper

if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). The Court must resolve all reasonable doubts in favor of the party

opposing the motion. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th

Cir. 1981).

The movant has the burden to show that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. Anderson, 477 U.S. at 247. If the movant bears the

burden of proof on a claim or defense on which it is moving for summary judgment, it must come

forward with evidence that establishes “beyond peradventure all of the essential elements of the

claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). The nonmovant

then must provide affirmative evidence to defeat summary judgment. Anderson, 477 U.S. at 257.

No “mere denial of material facts nor...unsworn allegations [nor] arguments and assertions in

briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp.,

98 F. App’x 335, 338 (5th Cir. 2004). The Court requires “significant probative evidence” from

the nonmovant in order to dismiss a request for summary judgment supported appropriately by the

movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider

all evidence but must not make any credibility determinations or weigh the evidence. Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

Because he proceeds pro se, Hodge’s pleadings are held to a less stringent standard than

those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed”)

(quotation omitted). Nevertheless, pro se parties must “still comply with the rules of procedure

and make arguments capable of withstanding summary judgment.” Ogbodiegwu v. Wackenhut

Corr. Corp., 202 F.3d 265, 1999 WL 1131884, at *2 (5th Cir. Nov. 10, 1999); Yazdchi v. Am.

Honda Fin. Corp., 217 F. App’x 299, 304 (5th Cir. 2007) (“The right of self-representation does

not exempt a party from compliance with relevant rules of procedural and substantive law.”) (citing

Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991)).

B. Hodge’s Failure to Respond is Not Dispositive.

When a nonmoving party does not file a response to a motion for summary judgment, the

failure to respond “does not permit the court to enter a ‘default’ summary judgment.” Boyd v. Fam.

Dollar Stores of Texas, LLC, No. 3:22-cv-1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 22,

2023). As the United States Court of Appeals for the Fifth Circuit has explained:

[a] motion for summary judgment cannot be granted simply because there is no

opposition, even if failure to oppose violated a local rule. John v. La. (Bd. of

Trustees) for State Colleges & Universities, 757 F.2d 698, 709 (5th Cir. 1985).

The movant has the burden of establishing the absence of a genuine issue of

material fact and, unless he has done so, the court may not grant the motion,

regardless of whether any response was filed. Id. at 708. Therefore, if the district

judge’s decision was to grant summary judgment solely because of a default, such

decision constituted reversible error.

Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.

1985); see also Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 & n.3 (5th Cir. 1995) (citing

Hibernia). Moreover, Rule 56(e) of the Federal Rules of Civil Procedure provides that:

[i]f a party fails . . . to properly address another party’s assertion of fact as required

by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of

the motion [and] (3) grant summary judgment if the motion and supporting

materials—including the facts considered undisputed—show that the movant is

entitled to it[.]

Therefore, Defendants still must provide sufficient evidence upon which the Court may base a

summary judgment. Failure to do so requires the Court to deny the Motion, even if it is unopposed.

C. Defendants’ Qualified Immunity Defense Alters the Burden of Proof.

Defendants move for summary judgment on their affirmative defense of qualified

immunity. “The doctrine of qualified immunity protects government officials from civil damages

liability when their actions could reasonably have been believed to be legal.” Argueta v. Jaradi,

86 F.4th 1084, 1088 (5th Cir. 2023) (citing Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)

(en banc)). Once an officer pleads qualified immunity, the plaintiff has the burden to establish that

the officer violated the plaintiff’s clearly established federal rights. Argueta, 86 F.4th at 1088

(citing Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005)). “This

is a demanding standard.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015), cert.

denied, 136 S. Ct. 1517 (2016). Because qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law, … we do not deny its protection unless

existing precedent places the constitutional question beyond debate.” Argueta, 86 F.4th at 1088

(internal citation omitted).

A qualified immunity defense alters the usual summary judgment burden of proof. Brown

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden

then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to

whether the official’s allegedly wrongful conduct violated clearly established law.” Id. To trigger

the qualified-immunity framework, however, the government official must “satisfy his burden of

establishing that the challenged conduct was within the scope of his discretionary authority.”

Sweetin v. City of Texas City, 48 F.4th 387, 392 (5th Cir. 2022) (quoting Cherry Knoll, L.L. C. v.

Jones, 922 F.3d 309, 318 (5th Cir. 2019)). For example, in Sweetin, the Fifth Circuit held this “oft-

overlooked threshold requirement” was dispositive “because state law does not give a permit

officer the authority to conduct stops of any kind.” Sweetin, 48 F.4th at 392. In this case, however,

Hodge does not dispute that Defendants were acting within the scope of their duties.

To determine if an official acting within the scope of his or her duties is entitled to qualified

immunity, courts conduct a two-step analysis. First, they examine whether the plaintiff has shown

a violation of a constitutional right under current law. Bevill v. Fletcher, 26 F.4th 270, 275 (5th

Cir. 2022) (quoting Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019)). Second, if a violation

has occurred, courts determine whether the right in question was “clearly established” at the time

of the alleged violation, such that the officer was on notice of the unlawfulness of his or her

conduct. Id. In short, an officer is entitled to qualified immunity “if there is no violation, or if the

conduct did not violate law clearly established at the time.” Bailey v. Iles, No. 22-30509, 2023 WL

8062239 at *2 (5th Cir. Nov. 21, 2023). Courts have the discretion to decide “which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

III. LEGAL ANALYSIS

The first question before the Court is whether Hodge has established a genuine fact issue

regarding whether any of Defendants’ allegedly wrongful conduct violated Hodge’s constitutional

rights. As shown herein, the Court concludes that he has not.

A. Hodge’s Claims Arising From His Disciplinary Proceedings Are Barred.

Hodge alleges that Defendants Zimmerman, Perez, Judd, Brown, Villegas and Garcia

violated his substantive and procedural due process rights in conducting his disciplinary hearing

that resulted in convicting him for a violation that he claims he did not commit. However, Hodge’s

claims arising from his disciplinary conviction are barred at this time.

Under Heck v. Humphrey, 512 U.S. 477 (1994), a convicted criminal may not bring a claim

under 42 U.S.C. § 1983 if success on that claim would necessarily imply the invalidity of a prior

criminal conviction. Courts do not allow the use of Section 1983 to collaterally attack a prior

criminal proceeding, “out of concern for finality and consistency.” Aucoin v. Cupil, 958 F.3d 379,

380-81 (5th Cir. 2020), cert. denied, 141 S. Ct. 567 (2020). In short, Heck prohibits suit under

Section 1983 if success on the claim would necessarily imply that a prior conviction or sentence

is invalid. Heck, 512 U.S. at 486-87. Heck applies to disciplinary proceedings that affect the

duration of a prisoner’s sentence. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (“A

‘conviction,’ for purposes of Heck, includes a ruling in a prison disciplinary proceeding that results

in a change to the prisoner’s sentence, including the loss of good-time credits.”) (citing Edwards

v. Balisok, 520 U.S. 641, 645 (1997)). “The inquiry is ‘fact intensive’ and dependent on the precise

nature of the disciplinary offense.” Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008).

The fact that Hodge does not challenge the loss of his good-time credits is not relevant to

this analysis. Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“It is irrelevant that [a

plaintiff] disclaims any intention of challenging his conviction; if he makes allegations that are

inconsistent with the conviction’s having been valid, Heck kicks in and bars his civil suit.”). A

claim is barred by Heck if the plaintiff’s factual allegations supporting the claim are necessarily

inconsistent with the validity of the conviction. See, e.g., Bush, 513 F.3d at 497; DeLeon v. City of

Corpus Christi, 488 F.3d 649, 656-57 (5th Cir. 2007). A claim and a conviction may co-exist,

however, if they are “temporally and conceptually distinct.” Poole v. City of Shreveport, 13 F.4th

420, 426-27 (5th Cir. 2021). Therefore, the Court must conduct the “fact-intensive” analysis to

determine whether Hodge’s claims are inconsistent with his disciplinary conviction.

All of Hodge’s claims arise from his disciplinary hearing, his conviction and his failure to

overturn the conviction through the prison grievance system. (ECF 3). The factual account in

Hodge’s Complaint is directly contradictory to the facts supporting his disciplinary conviction. He

claims to be innocent of the charge; he states that the cellphone in question belonged to his

cellmate, not to him, and that the cellmate would have so testified if asked. (Id. at 10). He further

states that the cellmate would have testified that Hodge had no knowledge of the cell phone. (Id.

at 10-11). When a plaintiff’s Section 1983 claim “is based solely on his assertions that he ... did

nothing wrong, and was attacked by the [] officers for no reason,” that suit “squarely challenges

the factual determination that underlies his conviction” and is necessarily at odds with the

conviction. Aucoin, 958 F.3d at 383 (quoting Walker v. Munsell, 281 F. App’x 388, 390 (5th Cir.

2008) (per curiam)). That is true regardless of a civil claim’s “theoretical compatibility” with the

conviction. Daigre v. City of Waveland, 549 F. App’x 283, 286 (5th Cir. 2013) (quoting Bush, 513

F.3d at 498 n.14); see also Thomas v. Pohlmann, 681 F. App’x 401, 407 (5th Cir. 2017) (citing

with approval Daigre and DeLeon).

The undisputed evidence shows that Hodge’s disciplinary conviction and his Section 1983

claims are not “temporally and conceptually distinct” such that they may co-exist, because they

directly contradict each other. See Poole, 13 F.4th at 426-27. As a result, Heck bars Hodge’s claims

unless he shows that the disciplinary conviction has been invalidated. Heck, 512 U.S. at 487.

Absent such a showing, a Heck-barred claim must be “dismissed with prejudice to [its] being

asserted again until the Heck conditions are met.” DeLeon, 488 F.3d at 657 (quoting Johnson v.

McElveen, 101 F.3d 423, 424 (5th Cir. 1996)). There is no evidence before the Court showing that

Hodge’s disciplinary conviction has been invalidated. Therefore, Hodge’s claims are barred by

Heck, and his claims arising from his disciplinary conviction should be dismissed with prejudice

until the Heck conditions are met. Because Hodge has not stated a constitutional violation as a

matter of law, these six Defendants are entitled to qualified immunity.

B. Hodge’s Claims Arising From His Grievance Process Are Barred.

Similarly, Hodge’s claims against Patton, Turner, Hooper and Massey that his substantive

and procedural due process rights were violated during his grievance process also are barred by

Heck. A judgment that Defendants improperly denied Hodge’s grievances about his disciplinary

conviction would “necessarily imply” the invalidity of Hodge’s disciplinary conviction and affect

the length of his confinement. Edwards, 520 U.S. at 644, 646. Hodge asks this Court to find that

the procedures used in denying his grievances violated his due process rights. The relief Hodge

seeks would necessarily imply the invalidity of the conviction in the disciplinary proceeding. See

Branum v. Clayborne, No. H-05-0229, 2007 WL 9758433 (S.D. Tex. Apr. 9, 2007) (Heck bars

claim that officers provided false testimony during disciplinary hearing). Because Hodge has not

stated a constitutional violation as a matter of law, these four Defendants are entitled to qualified

immunity. Hodge’s claims arising from the grievance process are barred by Heck and should be

dismissed with prejudice until the Heck requirements are met.

C. Hodge Does Not Overcome the Second Prong of the Qualified Immunity Analysis.

Even assuming that Defendants’ conduct resulted in a violation of Hodge’s constitutional

rights, their conduct was objectively reasonable in light of clearly established law. “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 v. Luna, 577 U.S. 7, 11 (2015)

(internal quotation omitted). There are two ways for a plaintiff to demonstrate that a defendant’s

conduct violated clearly established law. Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021).

Under the first, more typical approach, the plaintiff must “identify a case” or “body of relevant

case law” in which “an officer acting under similar circumstances ... was held to have violated the

[Constitution].” Id. While there need not be a case directly on point, the unlawfulness of the

challenged conduct must be beyond debate. Id. Under the second approach, there can be the rare

“obvious case,” where the unlawfulness of the officer’s conduct is so egregious that it is

sufficiently clear although existing precedent does not address similar factual circumstances. See

Batyukova, 994 F.3d at 726 (citing Dist. of Columbia v. Wesby, 538 U.S. 48, 65 (2018)); see also

Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

“In determining what constitutes clearly established law, [the Fifth Circuit] looks to

Supreme Court precedent and then to [its] own.” Hicks v. LeBlanc, 81 F.4th 497, 503 (5th Cir.

2023), (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)). When there is no

direct controlling authority, “[the Fifth Circuit] may rely on decisions from other circuits to the

extent that they constitute a robust consensus of cases of persuasive authority.” Id. “It is the

plaintiff’s burden to find a case in his favor that does not define the law at a high level of

generality.” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019).

This is not the rare “obvious case” in which the unlawfulness of the officer’s conduct is so

egregious that it is sufficiently clear such actions violate a prisoner’s rights. Further, Hodge

provided no case law in response to the Motion that supports his position. Thus, he failed to meet

his burden to show that Defendants should have known that their conduct violated clearly

established law.

D. Defendants are Entitled to Qualified Immunity.

For the reasons stated above, Hodge failed to provide sufficient evidence to create a fact

issue as to Defendants’ entitlement to qualified immunity. Specifically, Hodge failed to create a

material fact issue as to whether Defendants’ conduct violated his constitutional rights. Further,

Hodge failed to create a material fact issue as to whether Defendants’ conduct violated Hodge’s

clearly established rights. Defendants’ motion for summary judgment on qualified immunity

should be granted.

RECOMMENDATION

For the reasons set forth above, the U.S. Magistrate Judge recommends that Defendants’

Motion For Summary Judgment be GRANTED. Specifically, Hodge’s Heck-barred claims should

be dismissed with prejudice until the conditions of Heck are met.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED April 8, 2025.

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by

1]

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections

with the United States District Clerk and serve a copy of such objections on all other parties. A

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,

276–77 (5th Cir. 1988).