United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
plaintiff, Rodolfo Ortega (TDCJ #1522268), filed a prisoner
civil rights complaint under 42 U.S.C. § 1983,
concerning the conditions of his confinement in the Texas
Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”) [Doc. # 1]. After reviewing a
more definite statement provided by Ortega [Doc. # 18], the
Court dismissed all of his claims except for his allegation
that Lieutenant Lekisha Hunter retaliated against him in
violation of his constitutional rights [Doc. # 19].
Lieutenant Hunter has now filed a motion for summary judgment
[Doc. # 34], arguing that Ortega's claims against her
fail as a matter of law. Ortega has not filed a response and
his time to do so has expired. After considering all of the
pleadings and the applicable law, the Court will grant
Lieutenant Hunter's motion for summary judgment and
dismiss this case for reasons set forth below.
27, 2017, Ortega was incarcerated by TDCJ at the Carol Vance
Unit when he submitted a grievance about conditions at the
facility [Doc. # 1, at 7]. On August 3, 2017, Senior Warden
Troy Simpson conducted a walk-through of Ortega's dorm
and allegedly warned Ortega to stop filing grievances.
Id. Shortly thereafter, Ortega claims that
Lieutenant Hunter and two other officials harassed him by
asking him multiple questions. Id. On August 6,
2017, Ortega filed a grievance, alleging that he had been
harassed in retaliation for filing grievances. Id.
complaining about the retaliation, Ortega contends that he
was charged with prison disciplinary violations for refusing
to work and disobeying an order. Id. After the
disciplinary charges were filed, Ortega was transferred from
the Carol Vance Unit to the Jester III Unit and placed in
pre-hearing detention on August 21, 2017. Id. Ortega
claims that he was denied access to his personal property,
including personal hygiene item, religious materials, and
legal books until September 8, 2017. Id. at 7-8.
Ortega blames Lieutenant Hunter for the deprivation of his
personal property during this time and claims that it was in
retaliation for filing grievances. Id. at 8. He
requests nominal and unspecified punitive
Hunter has filed a motion for summary judgment, arguing that
she is entitled to official immunity from any claim for
monetary damages against her in her official capacity as a
state employee. [Doc. # 34, at 4]. Lieutenant Hunter argues
further that she is entitled to qualified immunity from
claims against her in her individual or personal capacity
because Ortega does not show that she retaliated against him
or that she violated his constitutional rights. Id.
STANDARD OF REVIEW
defendant's motion is governed by Rule 56 of the Federal
Rules of Civil Procedure, which provides that a reviewing
court “shall grant summary judgment 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A fact is
“material” if its resolution in favor of one
party might affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). An issue is “genuine” if the evidence
is sufficient for a reasonable jury to return a verdict for
the nonmoving party. Id.
movant demonstrates the absence of a genuine issue of
material fact, the burden shifts to the non-movant to provide
“specific facts showing the existence of a genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A
reviewing court “must view the evidence introduced and
all factual inferences from the evidence in the light most
favorable to the party opposing summary judgment[.]”
Smith v. Regional Trans. Auth., 827 F.3d 412, 417
(5th Cir. 2016). However, a non-movant cannot avoid summary
judgment simply by presenting “conclusory allegations
and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic
argumentation.” Jones v. Lowndes Cnty., Miss.,
678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co.
v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th
Cir. 2002)); see also Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a non-movant
cannot demonstrate a genuine issue of material fact with
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence).
expressly waived, the Eleventh Amendment bars an action in
federal court by a citizen of a state against his own state,
including a state agency. See Martinez v. Texas Dep't
of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002).
The Eleventh Amendment bars a suit for money damages against
TDCJ, as a state agency, under 42 U.S.C. § 1983. See
Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). The
Eleventh Amendment also bars a suit for money damages against
TDCJ employees in their official capacity. See Oliver v.
Scott, 276 F.3d 736, 742 (5th Cir. 2001); Aguilar v.
Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054
(5th Cir. 1998). To the extent that Ortega sues Lieutenant
Hunter for actions taken during the course of her employment
with TDCJ, the claims against her in her official capacity as
a state employee are barred by the Eleventh Amendment.
Accordingly, the motion for summary judgment on this issue
will be granted.
officials acting within the scope of their authority
generally are shielded from liability for monetary damages by
the doctrine of qualified immunity. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established' at the
time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (citing
Harlow, 457 U.S. at 818). “Qualified immunity
is a complete defense, and [a defendant is] entitled to
summary judgment on the basis of qualified immunity unless
[the plaintiff] can show triable issues as to whether [the