United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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
“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).
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.
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
Personal Involvement Requirement
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).
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)).
mischaracterize Ituah's complaint. She alleges that the
“Individual Defendants”-including Isaacson and
Nottebart-“have policies, practices, and/or customs
a. Fail to protect the Constitutional rights of female
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
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 ...