United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Rosenthal Chief United States District Judge
Ortiz, representing himself, sued under 42 U.S.C. §
1983, the Americans with Disabilities Act, and the
Rehabilitation Act, alleging violations of his civil rights.
He filed an amended complaint on May 22, 2017. The defendants
moved to dismiss the amended complaint for failure to state a
claim upon which relief can be granted, (Docket Entry No.
42). Ortiz responded to the motion. Based on the pleadings,
the motions, and the applicable law, the defendants'
motion is granted, and the plaintiffs amended complaint is
dismissed with prejudice. Final judgment is separately
entered. The reasons are explained below.
is an inmate in the Wallace Pack Unit of the Texas Department
of Criminal Justice. He alleges that some of the inmates
assigned to work in the prison cafeteria have Hepatitis C or
are HIV positive. Ortiz contends that this unreasonably
exposes him and other inmates to these diseases, in violation
of his Eighth Amendment rights and of his rights under the
Americans with Disabilities Act and the Rehabilitation Act.
The Rule 12(b)(6) Standard
reviewing a motion to dismiss under Rule 12(b)(6), the
complaint must be liberally construed in favor of the
plaintiff and the facts alleged in the complaint must be
taken as true. Campbell v. Wells Fargo Bank, 781
F.2d 440, 442 (5th Cir. 1986). The question under Rule
12(b)(6) "is whether in the light most favorable to the
plaintiff and with every doubt resolved in his behalf, the
complaint states any valid claim for relief." 5 Charles
A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 601 (1969).
Eleventh Amendment Immunity
Texas Department of Criminal Justice argues that it is immune
from suit under the Eleventh Amendment. The court agrees.
"[I]n the absence of consent a suit in which the State
or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment."
PennhurstStateSch. &Hosp. v. Halderman, 465U.S.
89, 100(1984). Ortiz'sclaims against the Texas Department
of Criminal Justice must be dismissed under the Eleventh
individual defendants argue that they are entitled to
Eleventh Amendment immunity for Ortiz's claims against
them for money damages in their official capacities. A suit
for damages against a state official in his official capacity
is not a suit against the individual, but against the State.
Hafer v. Melo, 502 U.S. 21, 25 (1991). For the same
reasons that the claim against the Texas Department of
Criminal Justice must be dismissed, Ortiz's
official-capacity claims for money damages against the
individual defendants must also be dismissed.
alleges that Deborah L. Schubert, the Food Services Manager
at the Pack Unit, placed inmates infected with hepatitis C
and HIV in jobs where they can expose other inmates to their
diseases. (First Amended Complaint at 5). He alleges no
personal involvement by any other defendant.
claims against Lorie Davis, the Executive Director of the
Texas Department of Criminal Justice-Correctional
Institutions Division, Robert Herrera, the Warden of the Pack
Unit, and Donald J. Bilnoski, the Assistant Warden of the
Pack Unit, allege only that these defendants are liable based
on their supervisory positions. (First Amended Complaint at
4-5; More Definite Statement at 5-6)). It is well
established, however, that supervisory officials cannot be
held liable under 42 U.S.C. § 1983 for the acts of their
subordinates on a theory of supervisory liability. Mone ...