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Weaver v. Collier

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

March 29, 2019

CALVIN EDWARD WEAVER, Plaintiff,
v.
BRYAN COLLIER, et al, Defendants.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt, United States District Judge

         Calvin Edward Weaver, proceeding pro se, filed suit under 42 U.S.C. § 1983 alleging violations of his civil rights. The defendants moved to dismiss in two separate motions on August 13, 2018. One motion was brought by defendants Bryan Collier, James Blake, and Warden Comstock. The other motion is brought by Kwabena Owusu, M.D., and Jose Gonzalez. All the defendants are employed by Texas Department of Criminal Justice (“TDCJ”). Weaver responded to the motions on November 28, 2018. Based on the pleadings, the motions, and the applicable law, the defendants' motions are granted in part and denied in part.

         I. Background

         Weaver alleges that he was diagnosed “as being hyper-allergic to the wool blanket issued by TDCJ.” Complaint (Doc. # 1), at 4. He contends that he was issued a medical pass approving him for a cotton blanket, but that the pass was not renewed in 2009. He further alleges that in 2009, TDCJ issued all inmates who were allergic to wool a non-wool blanket “with a recycled blend of waste by-products.” Id. He alleges that the new blankets caused itching, open sores, and sleep deprivation resulting in hypertension and anxiety. Id. At 5. He alleges that defendant Dr. Owusu “failed to report [an] inhumane policy instituted by contaminated blanket use, ” id. at 3, and defendant Gonzalez ignored his complaints about the blanket. The defendants now move to dismiss the complaint under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.

         II. Analysis

         A. Standard of Review

          1. The Rule 12(b)(1) Standard

         A federal court must dismiss a case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the plaintiff's claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). In resolving a motion under Rule 12(b)(1), a court may refer to evidence outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985). When the jurisdictional issue is of a factual nature rather than facial, plaintiff must establish subject matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir.1989).

         2. 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 all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).

         B. Eleventh Amendment Immunity

         All the defendants argue that they are immune from Weaver's claims for money damages against them in their official capacities. “[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.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). 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). Because Weaver's claims against the defendants in ...


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