recognizing that “the Fifth Circuit has held that there is no individual liability in lawsuits under the Rehabilitation Act … there is likewise no individual liability for claims of violations under [Title II] of the ADA.”
How later courts described this case
- recognizing that “the Fifth Circuit has held that there is no individual liability in lawsuits under the Rehabilitation Act … there is likewise no individual liability for claims of violations under [Title II] of the ADA.”
- holding inmate having to wait approximately three hours to use the restroom did not violate the Eighth Amendment
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2009
No. 09-40252 Charles R. Fulbruge III
Summary Calendar Clerk
KURBY DECKER
Plaintiff - Appellant
v.
CHEQUITA DUNBAR, Law Librarian for Texas Department of Criminal
Justice; NITA BURGESS, Property Officer; LATOOYA SANDERS,
Classification Manager; DAVID L HUDSON, Warden; DENNIS MARTIN,
Captain of Operations; JORDAN SMITH, JR., Sergeant of Operations;
NORRIS JORDAN, Lieutenant, Operations; KELLY ROSEBERRY,
Correctional Officer V Operations; TAMMY SHARP, Correctional Officer IV
Law Library Officer; V BARROW; EUGENE ALLEN, Correctional Officer IV
Operations; DONALD GIBSON, Correctional Officer IV Operations;
PAMELA WILLIAMS, Assistant Director for Classification and Records;
RISSI L OWENS, Chair Person, Texas Board of Pardons & Paroles; COLT
MORTON; LIEUTENANT HERBERT BARRON; ERIC HOWELL; ALL
DEFENDANTS
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:06-CV-210
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
No. 09-40252
PER CURIAM:*
Pro se Plaintiff-Appellant Kurby Decker appeals the district court’s grant
of summary judgment to Defendants-Appellees Texas Department of Criminal
Justice (“TDCJ”) officials, dismissing his various claims brought under 42 U.S.C.
§ 1983, including violations of his Eighth Amendment rights by limiting his
access to courts, deliberate indifference, failure to protect, denial of parole, and
retaliation. Decker also alleged causes of action under the ADA for policy
violations.
This court reviews a district court’s grant of summary judgment de novo.
Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir.
1997). Summary judgment should be affirmed where the pleadings and evidence
present no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317. 330 (1986).
Appellees, as government officials, are entitled to qualified immunity for
claims brought against them in their individual capacities. See Turner v. Houma
Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000). To defeat
such immunity, Decker must: 1) state a claim for a violation of a constitutional
right; 2) show that the constitutional right was established at the time of the
actions at issue; and 3) demonstrate that Appellees’ conduct was objectively
unreasonable in light of the legal rules clearly established at the time of their
actions. Thomas v. City of Dallas, 175 F.3d 358, 363-64 (5th Cir. 1999). Decker
cannot satisfy these requirements with conclusory allegations of wrongdoing.
Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). Nevertheless, his
filings are replete with conclusory statements without evidentiary support.
Consequently, Decker has failed to establish that the conduct of any of the
*
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.
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No. 09-40252
numerous TDCJ officials named as appellees has resulted in an actual
deprivation of his constitutional rights. Because Decker has not established that
Appellees’ conduct violated any constitutional right, Appellees are entitled to
qualified immunity for claims brought against them in their individual
capacities.
Moreover, the Eleventh Amendment bars Decker’s claims against
Appellees in their official capacities. The Eleventh Amendment bars suits in
federal court against a state, or one of its agencies or departments, by anyone
other than the federal government or another state. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This immunity may be waived
either by the state itself, or by Congress pursuant to § 5 of the Fourteenth
Amendment. Welch v. Tex. Dept. of Highways and Pub. Transp., 483 U.S. 468,
473-74 (1987). Neither exception is present here. See Will v. Mich. Dept. of State
Police, 491 U.S. 58, 66 (1989) (noting that in passing § 1983, Congress “had no
intention to disturb the states’ Eleventh Amendment immunity”). To the extent
Decker seeks prospective injunctive relief, which is not barred by the Eleventh
Amendment, he has failed to demonstrate a deprivation of constitutional rights
pursuant to an official state policy. Ganther v. Ingle, 75 F.3d 207, 209 (5th Cir.
1996). Therefore, the district court did not err in granting summary judgment
in Appellees’ favor.
Finally, Decker argues the district court erred by limiting discovery on his
claims, thereby preventing him from obtaining all of his requested discovery.
We review discovery and evidentiary rulings for abuse of discretion. Gomez v.
St. Jude Med. Daig Div., Inc., 442 F.3d 919, 927 (5th Cir. 2006). The district
court ordered initial disclosures, even though proceedings brought by
incarcerated individuals pro se are typically exempt from initial disclosures. See
F ED. R. C IV. P. 26(B)(iv). Decker has not shown what information was missing
from the discovery he received, nor how failing to receive this information
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No. 09-40252
harmed the presentation of his case. Therefore, the district court did not abuse
its discretion by limiting discovery in this case.
AFFIRMED.
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