United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
the Court are Motions to Dismiss and Motions for Protective
Order filed by both Gutierrez and Thielke (Dkt. Nos. 2, 12,
13 & 14); Plaintiff's Motion for Leave to Amend
Declaratory Judgment (Dkt. No. 8); Plaintiff's Motion to
Transfer Exhibits (Dkt. No. 9); Plaintiff's Motion for
Temporary Restraining Order (Dkt. No. 18); and the various
responses and replies. The undersigned magistrate judge
submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix
C of the Local Court Rules.
September of 1989, Plaintiff Van Lee Brewer was convicted in
the 291st District Court of Dallas County of
second-degree sexual assault. The state court sentenced
Brewer to a 50-year term of imprisonment based on an
enhancement from a prior conviction. On June 9, 2016, Brewer
was released on parole and placed in the Super Intensive
Supervision Program (“SISP”), which features
“the highest level of supervision provided by the
department.” Tex. Gov't Code § 508.317. Brewer
filed this lawsuit in Travis County District Court against
Defendants David G. Gutierrez, who is Chair of the Texas
Board of Pardons and Paroles, and Pamela Thielke, the
Director of the Texas Department of Criminal Justice Parole
Division. Brewer alleges that in carrying out their statutory
duties to enforce the SISP, the Defendants have violated his
constitutional rights to due process, equal protection,
freedom of association, and liberty under the First, Fourth,
and Fourteenth Amendments of the United States Constitution,
and have also violated his rights under the corollary
provisions of the Texas Constitution. Brewer seeks a
temporary restraining order and injunction to “desist
the imposition of the Super Intensive Supervision
Program.” Dkt. No. 18. Although Brewer's Petition
alleged that his rights under the United States Constitution
had been violated, he did not specifically state that he was
bringing his claims pursuant to 42 U.S.C. § 1983.
Nevertheless, because he relied on a number of federal
constitutional provisions to support his claims, the
Defendants removed the case based on federal question
have each filed motions to dismiss. They argue that
Brewer's case should be dismissed because (1) his
official capacity claims are barred by sovereign immunity,
(2) his claims are barred by the applicable two year statute
of limitations, and (3) he has failed to show that the
Defendants were personally involved in the alleged
constitutional violations. Defendant Gutierrez also argues
that the claims are Heck barred. In addition to
seeking dismissal of the case, Defendants also request a
protective order and stay of discovery until the motions to
dismiss are resolved. Brewer has filed several motions as
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) allows a party to assert
lack of subject-matter jurisdiction as a defense to suit.
Federal district courts are courts of limited jurisdiction,
and may only exercise such jurisdiction as is expressly
conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). A federal court properly dismisses a case
for lack of subject matter jurisdiction when it lacks the
statutory or constitutional power to adjudicate the case.
Home Builders Assn. of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001),
cert. denied, 536 U.S. 960 (2002).
“Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.”
Id. In ruling on a Rule 12(b)(1) motion, the court
may consider any one of the following: (1) the complaint
alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint, undisputed facts, and the
court's resolution of disputed facts. Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim upon which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court
accepts all well-pleaded facts as true, viewing them in the
light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted), cert.
denied, 552 U.S. 1182 (2008). The Supreme Court has
explained that a complaint must contain sufficient factual
matter “to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the [nonmovant] pleads factual content that
allows the court to draw the reasonable inference that the
[movant] is liable for the misconduct alleged.”
Id. The court's review is limited to the
complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central
to the claim and referenced by the complaint. Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383,
387 (5th Cir. 2010).
Plaintiff's Motion for Leave to Amend and to Transfer
argues that he never intended to invoke 42 U.S.C. § 1983
and thus it was improper for the Defendants to remove the
case on that basis. Brewer seeks leave to file an
“Amended Declaratory Judgment” to “amend
his pleading to reflect the court's proper
jurisdiction” under the Federal Declaratory Judgment
Act, 28 U.S.C. § 2201, Federal Rule of Civil Procedure
57 and Article III of the United States Constitution and
remove any reference to 42 U.S.C. § 1983.
lawsuit unequivocally alleges that Defendants violated his
constitutional rights under the First, Fourth and Fourteenth
Amendment. It appears that Brewer is attempting to bring his
constitutional claims under the United States Constitution
directly, or under the Federal Declaratory Judgment Act,
neither of which can he do. When a plaintiff seeks a remedy
for constitutional violations against municipalities or
government actors, the vehicle he must use is that set forth
in 42 U.S.C. § 1983. Burns-Toole v. Byrne, 11
F.3d 1270, 1273 n.3 (5th Cir.), cert. denied, 512
U.S. 1207 (1994); Hearth Inc. v. Dep't Public
Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980).
“When a statutory mechanism is available, § 1983
being a prime example, plaintiffs must invoke its
protection.” Berger v. City of New Orleans,
273 F.3d 1095, *1 (5th Cir. 2001). Accordingly,
Brewer's constitutional claims by definition invoke the
Court's jurisdiction under § 1983.
addition, the Federal Declaratory Judgment Act, 28 U.S.C.
§ 2201, does not create a substantive cause of action.
See Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys.,
Inc., 723 F.2d 1173, 1179 (5th Cir.1984) (“The
federal Declaratory Judgment Act . . . is procedural
only”). A declaratory judgment action is merely a
vehicle that allows a party to obtain an “early
adjudication of an actual controversy” arising under
other substantive ...