ORDER ADOPTING MEMORANDUM AND RECOMMENDATION DISMISSING ACTION
NELVA GONZALES RAMOS, District Judge.
Pending before the Court are the following: (1) Plaintiff Gonzales's Civil Rights Complaint, (D.E. 1); (2) Plaintiff Gonzales's Motion for a Preliminary Injunction, (D.E. 13); and (3) Movant Braden's Motion to Intervene as Third Party Plaintiff, (D.E. 15). On September 23, 2013, United States Magistrate Judge Jason B. Libby submitted a Memorandum and Recommendation recommending that Plaintiff's action be dismissed for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), and that any other pending motions be denied as moot. D.E. 16. Plaintiff timely filed his Objections on October 10, 2013. D.E. 19. Plaintiff's Objections are set out and discussed below.
First, Plaintiff "objects in whole" to the Magistrate Judge's recommendation to dismiss his suit and challenges the handling of his claim. Plaintiff asserts that the Magistrate Judge "discounted his allegations" instead of accepting them as true (D.E. 19, p. 4), failed to address the alleged violation of Plaintiff's property interest (D.E. 19, p. 6), and neglected to review Movant Braden's motion to intervene (D.E. 19, p. 18). Plaintiff also takes issue with the Magistrate Judge's analysis of the applicability of Eleventh Amendment immunity and insists that he is suing Defendants in their individual, not official, capacities. D.E. 19, p. 4-5.
The discussion in the Memorandum and Recommendation indicates that Plaintiff's factual allegations were accepted as true, but did not rise to the level of actionable constitutional violations. Plaintiff's allegation that his property rights were violated is an example of such a deficiency, and will be discussed in further detail herein. The Magistrate Judge did address Movant Braden's motion to intervene-recommending that it be denied as moot given his recommendation to dismiss Plaintiff's action. D.E. 16, p. 22.
In addition, the Magistrate Judge appropriately recommended dismissal of all claims against Defendants in their official capacities for money damages because such claims are barred by the Eleventh Amendment. Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) ("[T]he Eleventh Amendment bars recovering § 1983 money damages from TDCJ officers in their official capacity."). It is true that Eleventh Amendment immunity does not bar claims for injunctive relief or claims against Defendants in their individual capacities. However, the Magistrate Judge recommended dismissal of those claims on the merits, as will be addressed below. Plaintiff's general objection to the Magistrate Judge's handling of his complaint is OVERRULED.
Second, Plaintiff objects that Defendants are not entitled to qualified immunity. The Magistrate Judge did not address qualified immunity because it is an affirmative defense that must be raised by a defendant. Because the Court finds that Plaintiff has not pled the violation of a constitutional right, this action fails prior to reaching any potential qualified immunity defense. Plaintiff's second objection is OVERRULED.
Third, Plaintiff reurges his supervisory liability claims against Defendant Currie and Defendant Barber. Plaintiff alleges that Defendants Currie and Barber were "well aware of all the civil rights violations upon Plaintiffs... and [they] continuously neglected/failed to stop/correct violations in any way." (D.E. 19, p. 8 and 9) (emphasis in original).
"In order to state a cause of action under section 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995). "[S]upervisory officials are not liable for the actions of subordinates on any theory of vicarious liability." Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001). A plaintiff cannot obtain damages or injunctive relief from a policy maker or supervisor solely on a theory of respondeat superior. Beattie v. Madison Cnty. School Dist., 254 F.3d 595, 600 n. 2 (5th Cir. 2001).
Here, Plaintiff's allegations of awareness are conclusory and he does not allege that Defendants Barber and Currie were directly involved in the alleged civil rights violations of their subordinates. As the Magistrate Judge pointed out, liability as a policymaker requires personal involvement in the constitutional violation or causal connection to the constitutional violation alleged. Accordingly, Plaintiff's third objection is OVERRULED.
Fourth, Plaintiff restates his claim against Defendants Barber and Hackman for racial discrimination against him in violation of the Equal Protection Clause. Plaintiff claims that Defendant Barber "personally/individually violated constitution [sic] protected rights, " specifically identifying "racial discrimination, denial of equal protection and due process of law." D.E. 19, p. 8. Plaintiff alleges that Defendant Barber "treated Plaintiff intentionally different than other similarly situated inmates without any rational basis for difference in treatment." D.E. 19, p. 9. With regard to Defendant Hackman, Plaintiff claims that he has crossed several Hispanic inmates out of the craft shop without justification. D.E. 19, p. 15. Plaintiff claims to have witnesses who will testify in this regard if he were afforded a jury trial. D.E. 19, p. 15.
"Inmates have a constitutional right to be free from racial discrimination." Bently v. Beck, 625 F.2d 70, 70-71 (5th Cir. 1980). To make a prima facie claim for racial discrimination, a plaintiff must allege that similarly situated individuals have been treated differently and that the discrimination was purposeful or intentional. Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007). Neither personal belief nor vague and conclusory allegations are sufficient to raise an equal protection claim. See Woods, 51 F.3d at 580 (concluding that the plaintiff failed to present evidence of discriminatory intent when his claim rested only on his personal belief that discrimination played a part in his remaining in lockdown).
Although Plaintiff does state that several Hispanic inmates have been "crossed out of the craft shop without justification" by Defendant Hackman and that Defendant Barber "treated Plaintiffs intentionally different than other similarly situated inmates without any rational basis for difference in treatment, " his allegations fail to state a claim because any suggestion of discriminatory intent by Defendants Barber and Hackman is based on nothing more than Plaintiff's personal belief and is conclusory. Plaintiff's averment that he has "several witnesses" who will testify in this regard should he be afforded a trial by jury is inadequate to meet his burden to state a prima facie case. Accordingly, Plaintiff's fourth objection is OVERRULED.
Fifth, Plaintiff reasserts his conspiracy claims against Defendants Hackman, Barber, Moore, and Currie. D.E. 19, p. 8-9, 16. To state a claim for conspiracy under § 1983, Plaintiff must show that Defendants had "an agreement to commit an illegal act which resulted in the plaintiff's injury." Hay v. City of Irving, 893 F.2d 796, 799 (5th Cir. 1990). Conclusory allegations will not suffice. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Moreover, a plaintiff alleging conspiracy must have suffered "an actual deprivation of a constitutional right." Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984).
Plaintiff still has not pleaded facts sufficient to show or even suggest that Defendants had an agreement to commit an illegal act. Moreover, because Plaintiff has no constitutional right to craft shop privileges, he has not suffered an actual deprivation of a constitutional right. Plaintiff's conclusory allegations of conspiracy are ...