Probst v. Beckett

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JAMES EDWARD PROBST, §

TDCJ-CID No. 01699988, §

§

Plaintiff, §

§

v. § 2:24-CV-14-Z-BR

§

ARTURO BECKETT, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

TO GRANT DEFENDANT MOORE’S MOTION TO DISMISS

Before the Court is the Motion to Partially Dismiss Pursuant to Rule 12 of the Federal

Rules of Civil Procedure (the “Motion”) filed by Defendant Stephanie Moore. (ECF 33). After

considering said Motion and the Response thereto, the Magistrate Judge recommends that the

District Judge GRANT the Motion, as follows:

I. FACTUAL BACKGROUND

Pro se Plaintiff James Edward Probst (“Probst”) alleges that Defendants violated his

constitutional rights when Defendant Arturo Beckett (“Beckett”) used excessive force on him in

connection with a search of his cell. (ECF 11 at 9). He claims that Defendant Stephanie Moore

(“Moore”) refused to document his foot and rib injuries suffered in connection with the use of

force “in a collusive effort to downplay or cover the seriousness” of his injuries. (Id.). He also

claims that Moore intentionally ordered x-rays of his ankle instead of his foot, and that she was “a

coconspirator in these willingful [sic], calculated, malicious acts against Plaintiff.” (Id.).

Moore asks the Court to dismiss the claims against her pursuant to Rule 12(b)(1) and (6).

(ECF 16). Probst responded to Moore’s Motion to Dismiss, disputing Moore’s motion. (ECF 34).

II. LEGAL ANALYSIS

A. Legal Standards.

1. Rule 12(b)(1) Standard.

Pursuant to Rule 12(b)(1), the Court must presume that factual allegations in the Complaint

are true and determine whether they establish subject matter jurisdiction. Paterson v. Weinberger,

644 F.2d 521, 523 (5th Cir. 1981). Accordingly, the Court accepts Probst’s allegations as true and

will determine whether those allegations allow him to proceed against Moore, who claims that

sovereign immunity deprives this Court of subject matter jurisdiction over Probst’s claim for

monetary damages against her in her official capacity. Dismissal under Rule 12(b)(1) is permitted

only when “it appears certain that the plaintiff cannot prove any set of facts in support of his claim

that would entitle Plaintiff to relief.” Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014).

2. Rule 12(b)(6) Standard.

To survive a motion to dismiss pursuant to Rule 12(b)(6), 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) (internal quotation and citation omitted). “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 Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotation and footnote omitted). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements” do not establish

facial plausibility. Iqbal, 556 U.S. at 678. 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.” Id. (citing Twombly, 550 U.S. at 557).

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

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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, if the plaintiff’s complaint has not set forth enough facts “to

state a claim to relief that is plausible on its face,” it must be dismissed. Twombly, 550 U.S. at 570.

B. Sovereign Immunity on Section 1983 Claims.

As a sovereign entity, a state may not be sued without its consent. Read literally, the text

of the Eleventh Amendment prevents only non-citizens of a state from suing that state. See U.S.

Const. amend. XI. However, courts uniformly have held that the Eleventh Amendment provides

protections beyond its text, shielding states from suits brought by their own citizens, as well as

citizens of other states. See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011).

Therefore, under the Eleventh Amendment, “[f]ederal courts are without jurisdiction over suits

against a state, … unless that state has waived its sovereign immunity or Congress has clearly

abrogated it.” Moore v. Louisiana Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th

Cir. 2014).

This sovereign immunity bar extends to actions against state officers in their official

capacities. Edelman v. Jordan, 415 U.S. 651, 663–69 (1974). Suits against state officials in their

official capacities should be treated as suits against the state. Hafer v. Melo, 502 U.S, 21, 25 (1991).

Moreover, state officials acting in their official capacities are not ‘persons’ under Section 1983.

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71. As a result, it is well established that suits

for monetary damages against state officials in their official capacities cannot succeed under

Section 1983. See Almond v. Tarver, 468 F. Supp. 2d 886, 892-95 (E.D. Tex. 2006) (collecting

authorities and holding that claim against state official in his official capacity was barred by

sovereign and Eleventh Amendment immunities).

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Probst sues Moore for “compensatory damages for loss of property and injuries” and

punitive damages. (ECF 11 at 7). His request for monetary damages against Moore in her official

capacity should be dismissed without prejudice for lack of subject matter jurisdiction.

C. Probst’s Claims for Declaratory Relief.

Probst seeks a declaration that Moore violated his Eighth and Fourteenth Amendment

rights by her actions. He also seeks a declaration that, because of his known “activism,” his

personal safety at TDCJ is at risk so he should be removed from Texas state custody and placed in

the custody of either another state or the U.S. Bureau of Prisons. (Id. at 11). The Court also will

construe this as a request for injunctive relief for a facility transfer.

Assuming for the purposes of this Motion that Probst’s transfer request is viable, such

request is moot. At the time Probst filed his original Complaint, he was housed at the Clements

Unit; however, since that time, he has been transferred to the Coffield Unit. (ECF 30). He has

alleged no facts showing that he is “at risk” from Moore at the Coffield Unit. Accordingly, his

request for declaratory relief is moot. See, e.g., Herman v. Holiday, 238 F.3d 660, 665 (5th Cir.

2001) (holding that even if an inmate was able to establish a Constitutional violation, his transfer

to another prison rendered moot his claim for declaratory and injunctive relief); Hood v. Alford,

3:04-cv-0473-D, 2004 WL 1146582 at *1 (N.D. Tex. May 20, 2004), R. and R. adopted, 2004 WL

1393374 (N.D. Tex. June 21, 2004) (“Plaintiff is no longer incarcerated at the Johnson County

Jail. His transfer … renders his claims for declaratory and injunctive relief moot as to all

Defendants.”). Further, any suggestion of relief based on the possibility of Probst’s transfer back

to Clements is too speculative to warrant relief. See Bailey v. Southerland, 821 F.2d 277, 279 (5th

Cir. 1987). Probst’s request for declaratory and injunctive relief against Moore should be dismissed

as moot.

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D. Conspiracy Claim.

Probst alleges that Moore refused to document the full extent of his injuries “in a collusive

effort to downplay or cover the seriousness of [his] injuries and the use of force.” (ECF 11 at 9).

He further alleges that Moore “was a coconspirator in these willing[], calculated, malicious acts

against Plaintiff. (Id.). In order to state a Section 1983 conspiracy claim, Probst must allege facts

showing: (1) an agreement among individuals to commit a deprivation of constitutional rights; and

(2) an actual deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.

See Jabary v. City of Allen, 547 F. App’x 600, 610 (5th Cir. 2013). A conspiracy allegation under

Section 1983 allows a plaintiff to “impose liability on all of the defendants without regard to who

committed the particular act.” Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995). Probst’s

conspiracy claim need not have met a “probability requirement at the pleading stage; [plausibility]

simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence

of illegal agreement.” Twombly, 550 U.S. at 556. Probst’s facts, when “placed in a context ... [must

raise] a suggestion of a preceding agreement, not merely parallel conduct that could just as well

be independent action.” Id. at 557.

A civil conspiracy is generally defined as “a combination of two or more persons to

accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. . ..” Tilton

v. Marshall, 925 S.W.2d 672, 680-81 (Tex. 1996). “To establish a cause of action based on

conspiracy, a plaintiff must show that the defendants agreed to commit an illegal act.” Arsenaux

v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (citation omitted). General conclusory charges of

conspiracy with “no specific allegation of facts tending to show a prior agreement” cannot survive

a motion to dismiss. Id. at 1023-24. The complaint must include specific factual allegations

showing a prior agreement, plan, or meeting of the minds to violate the plaintiff’s constitutional

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rights or engage in an illegal act. Hey v. Irving, 161 F.3d 7 (5th. Cir. 1998).

Probst provides no facts showing that Moore engaged in a conspiracy. Although the Court

must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff, a

complaint “that offers labels and conclusions” or “naked assertion[s] devoid of further factual

enhancement” does not state a claim for the purposes of Rule 12(b)(6). Edionwe v. Bailey, 860

F.3d 287, 291 (5th Cir. 2017) (quoting Iqbal, 556 U.S. at 678); Priester v. Lowndes County, 354

F.3d 414, 420 (5th Cir. 2004) (“Allegations that are merely conclusory, without reference to

specific facts, will not suffice” to establish a Section 1983 conspiracy claim). Probst has wholly

failed to plead specific, nonconclusory facts that establish that Moore entered into an agreement

to violate his constitutional rights and then took actions that did so.

Probst fails to allege specific facts tending to show an agreement between Moore and any

Defendant. While Probst alleges that Moore conspired with others to “cover up” the seriousness

of a use of force and the extent of his injuries, he fails to allege facts that support his conclusory

allegation. His factual allegations regarding the incident do not show that there was any agreement

among Defendants to violate his civil rights either before or after the use of force. As such, Probst’s

conspiracy claim is “at best, speculative and conclusory,” and it should be dismissed.

E. Failure to Provide Medical Care Claim.

The Constitution requires that prison officials provide adequate medical care. Rogers v.

Boatright, 709 F.3d 403, 409 (5th Cir. 2013). An inmate seeking to establish a constitutional

violation regarding medical care must allege facts showing that prison officials were deliberately

indifferent to his serious medical needs. Morris v. Livingston, 739 F.3d 740, 747 (5th Cir. 2014)

(explaining that because “only the ‘unnecessary and wanton infliction of pain’ implicates the

Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege ‘deliberate

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indifference’ to his ‘serious’ medical needs’”) (quoting Wilson v. Seiter, 501 U.S. 294, 297

(1991)). Deliberate indifference “is an extremely high standard to meet.” Brewster v. Dretke, 587

F.3d 764, 770 (5th Cir. 2009) (internal quotation omitted). An inmate must first prove objective

exposure to a substantial risk of serious bodily harm. Gobert v. Caldwell, 463 F.3d 339, 345 (5th

Cir. 2006). As to the subjective component, an official acts with deliberate indifference only when

he (1) knows the inmate faces “a substantial risk of serious harm” and (2) “disregards that risk by

failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994);

Gobert, 463 F.3d at 346; see also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (per

curiam) (stating that prison official is not liable for denial of medical treatment unless he knows

of and disregards an excessive risk to inmate health or safety).

An official’s “failure to alleviate a significant risk that the official should have perceived,

but did not, is insufficient to show deliberate indifference.” Domino v. Tex. Dep’t of Crim. Just.,

239 F.3d 752, 756 (5th Cir. 2001) (alterations and internal quotation omitted) (quoting Farmer,

511 U.S. at 838). “[D]eliberate indifference cannot be inferred merely from a negligent or even a

grossly negligent response to a substantial risk of serious harm.” Thompson v. Upshur Cnty., 245

F.3d 447, 459 (5th Cir. 2001). Instead, an official “must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Brewster, 587 F.3d at 770 (quoting Farmer, 511 U.S. at 837); see also Lawson v.

Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002) (holding that deliberate indifference is a

“subjective inquiry,” and inmate must show that the prison official was actually aware of risk of

harm and consciously ignored it).

Allegations of malpractice, negligence, or unsuccessful treatment fail to establish

deliberate indifference. Gobert, 463 F.3d at 346. Similarly, an inmate’s disagreement with the

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medical treatment provided does not give rise to a constitutional claim. Norton v. Dimazana, 122

F.3d 286, 292 (5th Cir. 1997). Further, a delay in delivering medical care creates constitutional

liability only where the alleged deliberate indifference results in substantial harm. Mendoza v.

Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). In sum, an inmate must demonstrate that prison staff

“refused 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”

to state a viable Eighth Amendment claim for deliberate indifference to serious medical needs.

Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

Probst alleges that Moore refused to document foot and rib injuries that he reported to her,

and that she ordered x-rays for his ankle instead of his foot. (ECF 11 at 9). He also states in his

Amended Complaint that she treated him for head injuries. (Id.). He provides no facts supporting

a claim for failing to provide medical care in violation of the Eighth Amendment. He alleges no

facts showing that Moore “refused to treat him, ignored his complaints, [or] intentionally treated

him incorrectly.” See Johnson, 759 F.2d at 1238. He does not allege that Moore failed to treat his

foot and rib injuries, intentionally or otherwise. In fact, he admits in his response to the Motion

that Moore treated these injuries. (ECF 34 at 1).

Probst’s Amended Complaint also alleges that Moore intentionally ordered x-rays of his

ankle instead of his foot, but he does not allege that she did so in order to intentionally treat him

incorrectly in a wanton disregard for his serious medical needs. In fact, he alleges that another

provider treated his foot by wrapping it and giving him ibuprofen, which indicates that his “medical

need” was de minimis at best. In his response to the Motion, Probst alleges that Moore is an “LVN

and knew [the ankle x-ray] wouldn’t reflect [his] actual injury.” (Id. at 2). However, he alleges no

facts showing that Moore knew his injury would not be shown on the x-ray, other than the

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assumption that her medical knowledge should have led her to this conclusion. Further, Probst

fails to allege facts showing that the delay between Moore ordering x-rays and another provider

wrapping his foot resulted in substantial harm, especially since his foot was treated with a wrap

and ibuprofen. Mendoza, 989 F.2d at 193. Probst’s claim against Moore for failure to provide

medical care should be dismissed.

F. Qualified Immunity.

Qualified immunity protects government officials from suit and liability for civil damages

under Section 1983 insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555

U.S. 223, 231 (2009). Once qualified immunity is asserted, the burden shifts to the plaintiff to

demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002) (en banc) (per curiam), citing Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d

481, 489 (5th Cir. 2001).

“When a defendant asserts a qualified-immunity defense in a motion to dismiss, the court

has an obligation to carefully scrutinize the complaint before subjecting public officials to the

burdens of broad-reaching discovery.” Longoria Next Friend of M.L. v. San Benito Indep. Consol.

Sch. Dist., 942 F.3d 258, 263-64 (5th Cir. 2019). “Qualified immunity is a two-step process. The

first [step] asks whether the defendant violated the plaintiff’s constitutional rights. The second step

adds the protection for the defendant that liability attaches only if the right was clearly established”

at the time the violation occurred. Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018).

The Court may address either or both prongs. See Pearson v. Callahan, 555 U.S. at 242.

As shown above, Probst failed to state a cognizable claim against Moore of a constitutional

violation in connection with either conspiracy or failure to provide medical care, as described in

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the Amended Complaint. Therefore, Moore is entitled to dismissal of the claims against her

pursuant to Rule 12(b)(6) based upon her affirmative defense of qualified immunity.

G. Leave to Amend.

While the general rule is that the Court should not dismiss a pro se complaint for failure to

state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend, the Court

“need not permit futile amendments.” LaCroix v. Marshall Cnty., Miss., 409 F. App’x 794, 802

(5th Cir. 2011). Allowing Probst to amend his claim for money damages against Moore in her

official capacity would be futile for the reasons set forth above. Allowing Probst to amend his

claims against Moore for declaratory and injunctive relief also would be futile, as shown above.

Allowing Probst to amend his claims against Moore would be futile pursuant to the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915 and 1915A. Probst added his claims against

Moore in his Amended Complaint, after his initial Complaint had undergone PLRA screening.

Under the PLRA, no “[f]ederal civil action may be brought by a prisoner ... for mental or emotional

injury suffered while in custody without a prior showing of physical injury or the commission of

a sexual act.” 42 U.S.C. § 1997e(e). The Fifth Circuit has held that this requirement “applies to all

federal civil actions in which a prisoner alleges a constitutional violation.” Geiger v. Jowers, 404

F.3d 371, 375 (5th Cir. 2005). The application of Section 1997e(e) is based on “the relief sought,

and not the underlying substantive violation.” Id.; see also Mayfield v. Tex. Dep’t of Crim. Just.,

529 F.3d 599, 603, 605 (5th Cir. 2008) (“We have held that the application of [Section 1997e(e)]

... turns on the relief sought by a prisoner, and that it prevents prisoners from seeking compensatory

damages for violations of federal law where no physical injury is alleged.”).

Probst does not allege that he suffered any physical injuries in connection with his claims

against Moore. (ECF 11). Because he does not allege physical injury, he is not entitled to recover

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compensatory damages from Moore. See Hill v. Fagan, No. 1:16-CV-185-BL, 2018 WL 3244617,

at *3 (N.D. Tex. June 4, 2018) (recommending dismissal of prisoner’s claim for compensatory

damages against defendant because prisoner failed to allege a physical injury arising from the

purported due process violation), R. & R. adopted by 2018 WL 3242274 (N.D. Tex. July 3, 2018).

Accordingly, allowing Probst to amend his claims against Moore would be futile due to his failure

to meet the PLRA’s physical injury requirement in connection with his claims.

RECOMMENDATION

As set forth above, the U.S. Magistrate Judge recommends that Moore’s Motion to Dismiss

be GRANTED; specifically, that the Court dismiss without prejudice all claims for monetary

damages against Defendant Moore in her official capacity, and dismiss with prejudice the claims

against her in her individual capacity.

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 July 24, 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

1]

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

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).

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