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McKay v. Austin State Hospital

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

July 19, 2019

ANGELA McKAY, on behalf of Anisha Ituah, Plaintiff,
v.
AUSTIN STATE HOSPITAL, et al., Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the report and recommendation of United States Magistrate Judge Mark Lane concerning Defendant Alan R. Isaacson's (“Isaacson”) partial motion to dismiss, (Dkt. 60), and Defendant Catherine Nottebart's (“Nottebart”) (collectively, “Defendants”) motion to dismiss, (Dkt. 68). (R. & R., Dkt. 93). In his report and recommendation, Judge Lane recommends that the Court grant the motions with respect to Plaintiff Anisha Ituah's (“Ituah”) state law claims and § 1985(3) claims but deny the motions with respect to her § 1983 claims. (Id. at 16). Defendants have timely objected to the report and recommendation with respect to Ituah's § 1983 claims and with respect to standing. (Objs., Dkt. 96).

         A party may serve and file specific, written objections to a magistrate judge's findings and recommendations within fourteen days after being served with a copy of the report and recommendation and, in doing so, secure de novo review by the district court. 28 U.S.C. § 636(b)(1)(C). Because Defendants timely objected to the report and recommendation with respect to Judge Lane's § 1983 and standing recommendations, the Court reviews those portions of the report and recommendation de novo. The Court reviews the remainder of the report and recommendation for clear error.

         Having done so, the Court finds no clear error in Judge Lane's recommendation that the Court dismiss Ituah's state law claims and § 1985(3) claims. The Court therefore accepts and adopts the report and recommendation as its own order with respect to those claims. The Court now turns to the portions of the report and recommendation to which Defendants objected.

         I. Personal Involvement Requirement

         Defendants do not challenge that Ituah has sufficiently alleged a violation of her constitutional rights. Rather, they allege that they were not personally involved in the violation of her rights. (Objs., Dkt. 96, at 6-7).[1]

         It is true that suits under § 1983 can only be brought against government officials for their own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). “Personal involvement is an essential element of a civil rights action.” Thompson v. Steele, 709 F.2d 381, 381 (5th Cir. 1083) (citing Rizzo v. Goode, 423 U.S. 362, 371-72 (1976)). Defendants, however, conflate “personal involvement” with “supervisory liability” and incorrectly assume that “supervisory” conduct is not actionable under § 1983. They argue that Ituah has “failed to allege any facts that point to Isaacson's personal involvement in an incident that the magistrate recognized occurred before Isaacson assumed the superintendent position with ASH.” (Objs., Dkt. 96, at 7). Similarly, they argue that “[t]he same problem exists as to Nottebart, ” and “Section 1983 claims against supervisory officials cannot be premised merely upon their knowledge of subordinates' actions.” (Id. (citing Iqbal, 556 U.S. at 677)).

         Defendants mischaracterize Ituah's complaint. She alleges that the “Individual Defendants”-including Isaacson and Nottebart-“have policies, practices, and/or customs that:

a. Fail to protect the Constitutional rights of female patients;
b. Fail to prevent and/or minimize the risk of sexual assault by fellow patients against female patients;
c. Fail to conduct and/or submit sexual assault kits to law enforcement;
d. Fail to report to police, restrict, constrain, reassign, or otherwise prevent sexual assault by known perpetrators of sexual assault against female victims;
e. Fail to conduct reasonable investigations into allegations of sexual assault against female victims; and
f. Fail to adequately and appropriately train ASH personnel regarding sexual assault ...

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