United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt, United States District Judge
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.
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.
Standard of Review
1. The Rule 12(b)(1) Standard
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).
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 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).
Eleventh Amendment Immunity
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 ...