United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is a motion for summary judgment, (Dkt. 36), filed
by Defendants Travis County, Texas (“Travis
County”), Greg Hamilton (“Hamilton”),
Joshua Johnson (“Johnson”), Bradley Payne
(“Payne”), Amy Smith (“A. Smith”),
Claudia Garcia (“Garcia”), Nurse Prince
(“Prince”), Dawn Kline (“Kline”), and
Kathryn Smith (“Smith”) (collectively,
“Defendants”). Having considered the parties'
arguments, the evidence, and the relevant law, the Court will
grant the motion in part and permit Leeper to file a
Rocky Leeper (“Leeper”) was incarcerated in the
Travis County Correctional Complex for more than two months
in the summer of 2014. (Mot. Summ. J., Dkt. 36, at 3). Leeper
is a person with disabilities who uses a wheelchair to get
around. (Id.). In his amended complaint, Leeper
alleges that Defendants committed a varied collection of
abusive acts over the course of his incarceration, such as
denying him necessary medical care, using excessive force,
and housing him in a unit that did not accommodate his
disability. (Am. Compl., Dkt. 30, at 2-9). Some of these
allegations are isolated incidents involving individual
defendants; others allege concerted action by multiple
defendants. (Id.). Out of these allegations, Leeper
asserts a number of different causes of action, including
claims under 42 U.S.C. § 1983 (“Section
1983”), the Americans with Disabilities Act, 42 U.S.C.
§§ 12102 et seq. (“ADA”), and
an unidentified provision of the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”).
(Id. at 6-8, 9-13).
ask the Court to grant summary judgment in their favor on
each of Leeper's claims. (Mot. Summ. J., Dkt. 36, at 46).
Defendants assert qualified immunity with respect to each of
Leeper's claims. (See Am. Answer, Dkt. 33,
¶ 85; Mot. Summ. J., Dkt. 36, at 7-8). Leeper filed an
untimely response, which the Court will consider in light of
his pro se status. See W.D. Tex. Loc. R.
CV-7(e)(2) (requiring parties to file responses to
dispositive motions within 14 days); Johnson v.
Pettiford, 442 F.3d 917, 918 (5th Cir. 2006)
(disapproving of an automatic grant of a dispositive motion
for failure to comply with local rules).
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is genuine only if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986). “A fact issue is ‘material'
if its resolution could affect the outcome of the
action.” Poole v. City of Shreveport, 691 F.3d
624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The “burden of production at
trial ultimately rests on the nonmovant” and the movant
must merely show an “absence of evidentiary support in
the record for the nonmovant's case.” Cuadra v.
Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010). The nonmoving party must then come forward with
specific facts showing that there is a genuine issue for
trial. Id. There is “no issue for trial unless
there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
nonmovant “must identify specific evidence in the
record and articulate the manner in which that evidence
supports that party's claim.” Johnson v. Deep
E. Tex. Reg'l Narcotics Trafficking Task Force, 379
F.3d 293, 301 (5th Cir. 2004) (citation omitted). The
nonmoving party cannot survive a summary judgment motion by
resting on the mere allegations of its pleadings. Duffie
v. United States, 600 F.3d 362, 371 (5th Cir. 2010);
see also Larry v. White, 929 F.2d 206, 211 n.12 (5th
Cir. 1991) (“Unsworn pleadings, memoranda, or the like
are not, of course, competent summary judgment
evidence.”). Summary judgment “cannot be granted
by default even if there is a complete failure to respond to
the motion, much less when an attempted response fails to
comply with Rule 56(c) requirements.” Fed.R.Civ.P.
56(e) advisory committee's note. Rather, if a party fails
to properly address the opposing party's assertion of
fact, a court should take an action designated by Rule 56(e).
Fed.R.Civ.P. 56(e). “The choice among possible orders
should be designed to encourage proper presentation of the
record, ” and courts should “take extra care with
pro se litigants, advising them of the need to
respond and the risk of losing by summary judgment if an
adequate response is not filed.” Fed.R.Civ.P. 56(e)
advisory committee's note.
have met their initial burden under Rule 56: in their motion
for summary judgment, which applies to each of Leeper's
claims against each Defendant, they have informed the Court
of the basis for its motion and identified the portions of
the pleadings that demonstrate the absence of a genuine issue
of material fact. Celotex Corp., 477 U.S. at 323.
Accordingly, the burden shifts to Leeper to identify facts
that demonstrate a genuine issue of material fact for trial.
Cuadra, 626 F.3d at 812. Leeper cannot rely on the
allegations in his unsworn amended complaint, nor on
statements made in his unsworn response to Defendants'
motion. Duffie, 600 F.3d at 371; Larry, 929
F.2d at 211 n.12. Leeper's summary judgment evidence is
therefore limited to the fifteen-page attachment to his
response. (Dkt. 40-1). The few documents in the attachment do
not address most of the facts asserted in Defendants'
Leeper's unsworn amended complaint and response do
contain assertions of fact that, if they were competent
summary judgment evidence, would dispute many of the facts
asserted in Defendants' motion. Because Leeper has failed
to address most of Defendants' assertions of fact with
appropriate summary judgment evidence, the Court has several
options under Rule 56(e). In order to promote a proper
presentation of the record and taking care to advise a
pro se litigant of the need to respond
appropriately, the Court will give Leeper the opportunity to
properly address the facts in Defendants' motion that his
unsworn amended complaint and response fail to address.
the Court will address several arguments in Defendants'
motion whose resolution does not turn on factual
determinations. Defendants ask the Court to grant summary
judgment on Leeper's ADA causes of action against
individual defendants. (Mot. Summ. J., Dkt. 36, at 6-7).
Title II of the ADA, which applies to public services, 42
U.S.C. § 12132, does not allow actions against a person
in his individual capacity. See DeLeon v. City of Alvin
Police Dep't, No. CIV.A. H-09-1022, 2009 WL 3762688,
at *3 (S.D. Tex. Nov. 9, 2009) (concluding that Title II does
not impose liability against government officials in their
individual capacities); Albritton v. Quarterman, No.
6:08CV268, 2009 WL 585659, at *10 (E.D. Tex. Mar. 6, 2009)
(same); see also Lollar v. Baker, 196 F.3d 603, 609
(5th Cir. 1999) (holding that a plaintiff cannot bring a
Rehabilitation Act claim against a government official in her
individual capacity); Pena v. Bexar Cty., Texas, 726
F.Supp.2d 675, 689 (W.D. Tex. 2010) (“District courts
in the Fifth Circuit have uniformly applied Lollar
to claims under the ADA.”). Accordingly, the Court
agrees that summary judgment is appropriate with respect to
Leeper's ADA causes of action against Defendants A.
Smith, Johnson, Garcia, Payne, and Prince in their individual
capacities. Similarly, Leeper's HIPAA claim against
Prince must be dismissed because “there is no private
cause of action under HIPAA.” Acara v. Banks,
470 F.3d 569, 572 (5th Cir. 2006).