# Storemski v. Harris County Texas

> Court of Appeals for the Fifth Circuit · March 4, 1999 · 176 F.3d 478

URL: https://www.frixlaw.com/law-library/cases/17099

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 4, 1999
- **Citations:** 176 F.3d 478
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-20159
Summary Calendar

DANIEL RAYMOND STOREMSKI,

Plaintiff-Appellee,

versus

JOHNNY KLEVENHAGEN, sheriff, ET AL.,

Defendant-Appellant.

- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-45
- - - - - - - - - -

March 1, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Johnny Klevenhagen appeals the district court’s denial of

his motion for summary judgment. The court held that Klevenhagen

was not protected by the defense of qualified immunity in Daniel

Storemski’s 42 U.S.C. § 1983 suit. His failure to provide

Storemski with his medication and to transfer him to a

psychiatric hospital pursuant to court order did not involve

discretionary functions.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-20159
-2-

This court reviews the denial of a motion for summary

judgment de novo using the same criteria applied by the district

court in the first instance. Reese v. Anderson, 926 F.2d 494,

498 (5th Cir. 1991). The first inquiry in examining a defense of

qualified immunity asserted in a motion for summary judgment is

to determine whether the plaintiff has alleged “the violation of

a clearly established constitutional right.” Siegert v. Gilley,

500 U.S. 226, 231 (1991). The second step is to “decide whether

the defendant’s conduct was objectively reasonable” in light of

the legal rules clearly established at the time of the incident.

Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).

Storemski’s § 1983 claim addressed by the district court in

its denial order rests on the allegation that by violating the

state-court order, Klevenhagen violated his constitutional

rights. A remedial order cannot serve as a substantive basis for

a § 1983 claim because such orders to not create “‘rights,

privileges, or immunities secured by the Constitution and laws.’”

Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986), quoting

§ 1983. Remedial decrees “are the means by which

unconstitutional conditions are corrected but they do not create

or enlarge constitutional rights.” Green, 788 F.2d at 1123. As

a result, Storemski has not established a violation of a “clearly

established constitutional right” that would allow recovery under

§ 1983. The judgment is REVERSED, and the case is REMANDED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/17099. Public record. Not legal advice.