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Brewer v. Gutierrez

United States District Court, W.D. Texas, Austin Division

May 20, 2019

VAN LEE BREWER
v.
DAVID G. GUTIERREZ, et al.

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. BACKGROUND

         In 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 jurisdiction.

         Defendants 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 well.

         II. STANDARD OF REVIEW

         Federal 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).

         Federal 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).

         III. ANALYSIS

         A. Plaintiff's Motion for Leave to Amend and to Transfer Exhibits

         Brewer 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.

         Brewer's 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.

         In 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 ...


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