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Ortiz v. Schubert

United States District Court, S.D. Texas, Houston Division

January 30, 2018

ANTHONY ORTIZ, Plaintiff,
v.
DEBORAH L. SCHUBERT, et al, Defendants.

          MEMORANDUM AND ORDER

          Lee H. Rosenthal Chief United States District Judge

         Anthony 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.

         I. Background

         Ortiz 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.

         II. Analysis

         A. The Rule 12(b)(6) Standard

          In 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).

         B. Eleventh Amendment Immunity

         The 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 Amendment.

         The 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.

         C. Personal Involvement

         Ortiz 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.

         1. Supervisory Defendants

         Ortiz's 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 ...


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