Johns et al v. Lara et al

MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment

E.D. Tex.October 13, 2016

Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION BRIANNA JOHNS, et al., § § Plaintiffs, § CIVIL ACTION No. 1:16CV198 § v. § § FRANCSICO LARA, et al., § JUDGE MARCIA A. CRONE § Defendants. § DEFENDANT LARA’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT Defendant Francisco Lara1 files this Motion to Dismiss pursuant to Federal Rules of Civil Procedure12(b)(1), (b)(5) and (b)(6), or alternatively, Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. INTRODUCTION Plaintiff, Brianna Johns, has filed this suit on behalf of the Estate of Leo Johns, a former inmate at the Federal Correctional Complex, United States Penitentiary, Beaumont, Texas (USP Beaumont) under the Texas Survival Act, found at Texas Civil Practice and Remedies Code § 71.021. She also brings this suit in her capacity as the natural born daughter of inmate Johns under the Texas Wrongful Death Act, found at Texas Civil Practice and Remedies Code § 71.002. Elizabeth Johns, legal guardian and 1 Olajuwon Quarles is not being represented by this office. He was informed of this information on October 4, 2016, and he was instructed his deadline to file a responsive pleading in this case was October 14, 2016. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 1 of 29 PageID #: 105 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 2 next friend of C.J. and L.J., the two minor children of inmate Johns, are also plaintiffs in this suit. This action is brought in connection with the death of inmate Johns at the hands of other inmates at USP Beaumont on June 9, 2014. Plaintiffs specifically plead that inmate Johns’ constitutional rights under the Fifth and Eighth Amendments to the U.S. Constitution were violated when the defendants exhibited deliberate indifference and negligence which resulted in Johns’ death. [See Doc. No. 2, ¶¶ 2-3] Plaintiffs are attempting to sue all defendants for violations of the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Id. at ¶ 8] Plaintiffs are also bringing pendant [sic] state claims for negligence and gross negligence. [Id. at ¶ 3] There also appears to be a claim for intentional infliction of emotional distress. [See id. at ¶ 59] Plaintiffs are seeking compensatory damages for the pre-death violation of Johns’ constitutional rights, as well as his pre-death pain and suffering. [Id. at ¶ 3] Plaintiffs are also seeking compensation for their non-pecuniary damages of mental anguish and loss of society and companionship, as well as pecuniary damages for loss of support. [Id.] Additionally, Plaintiffs seek punitive damages due to the nature of the conduct of certain defendants. [Id.] Plaintiffs further raise numerous tortious causes of action, but concede their claims under the Federal Tort Claims Act have not been exhausted to date. [See id. at ¶ 20] Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 2 of 29 PageID #: 106 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 3 DEFENDANT LARA’S MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1), 12(b)(5), and 12(b)(6) I. ARGUMENTS AND MEMORANDUM OF LAW A. Standard of Review - Lack of Subject Matter Jurisdiction. A motion to dismiss for lack of subject matter jurisdiction is properly brought under Federal Rule of Civil Procedure 12(b)(1). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court should consider the Rule 12(b)(1) jurisdictional attack before addressing anything on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). In this manner, it prevents a court without jurisdiction from prematurely dismissing a case with prejudice, and thus it is not a determination of the merits. See id. B. Standard of Review - Insufficient Service of Process. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) turns on the legal sufficiency of the service of process. The plaintiff bears the burden of demonstrating its validity when an objection to service is made. Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). C. Standard of Review - Failure to State a Claim. Motions to dismiss for failure to state a claim are appropriate where the defendant attacks the complaint because it fails to state a cognizable claim. FED. R. CIV. P. 12(b)(6) (2013). To survive a motion to dismiss, it is Plaintiff’s obligation to provide the grounds of his entitlement to relief, requiring more than labels and conclusions and a formulaic Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 3 of 29 PageID #: 107 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 4 recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). The Supreme Court in Iqbal explained that Twombly promulgated a “two-pronged approach” to determine whether a complaint states a plausible claim for relief. See Iqbal, 556 U.S. at 678-79. First, pleadings must be identified that, “because they are no more than conclusions, they are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions “must be supported by factual allegations.” Id. See also Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (court did not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions) (quotations omitted). Once the well-pleaded factual allegations are identified, the court must then “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. “A claim has plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if the complaint does not include enough facts to state a claim that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Because plaintiffs have not nudged their claims Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 4 of 29 PageID #: 108 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 5 across the line from conceivable to plausible, the complaint must be dismissed). See also Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996) (Section 1983 actions against individual governmental officials require “claims of specific conduct and action giving rise to a constitutional violation,” not merely conclusory assertions). 1. Claims brought under the Texas Survival Statute on behalf of the estate of Leo Johns are subject to dismissal for lack of subject matter jurisdiction, as it appears Brianna Johns was not eligible to receive Letters of Administration from the State of Utah at the time they were issued. Under Texas Civil Practice & Remedies Code § 71.021, a cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury. TEX. CIV. PRAC. & REM. CODE ANN. § 71.021(a) (Vernon 2015). A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. TEX. CIV. PRAC. & REM. CODE ANN. § 71.021(b) (Vernon 2015). While heirs may have standing to bring suit on behalf of the decedent’s estate during the four- year period allowed for instituting administration proceedings, the heirs must allege and prove that there is no administration pending and none is necessary. See Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971) (it is settled in Texas that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate). Documentation submitted by the plaintiffs indicate that Brianna Johns was issued Letters of Administration in the Third Judicial District Court of Salt Lake County, Utah on September 5, 2014. [Doc. No. 2-5, pp. 2-3] Thus, any claims Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 5 of 29 PageID #: 109 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 6 made by the remaining minor Plaintiffs under the Texas Survival Statute appear to be inapposite to the Letters of Administration filed by Plaintiff Brianna Johns with the First Amended Complaint. Brianna Johns indicates her date of birth is November 9, 1995 in her “Claim for Damage, Injury, or Death” (SF-95) submitted to the Federal Bureau of Prisons. [Doc. No. 2-1, p. 2] Under Utah Uniform Probate Code Section 75-3-203, Subsection (6), no person is qualified to serve as a personal representative who is under the age of 21. (See Exhibit A, Utah Code Annotated § 75-3-203 (2016). Ms. Johns would have been 18 years of age at the time of her appointment as the Estate’s personal representative. While this defect may be curable, it does not appear Plaintiff Brianna Johns has standing to bring claims regarding the Estate of Leo Johns to the Court as the Estate’s personal representative at this time. Defendants request that she be given the opportunity to cure this defect, and if it is not cured with an amended pleading, that all claims brought under the Texas Survival Statute be dismissed for lack of subject matter jurisdiction. See Merchandise Center, Inc. v. WNS, Inc., 85 S.W.3d 389, 393-94 (Tex. App. - Texarkana 2002, pet denied) (finding error where court dismissed a case for lack of standing without giving the plaintiff the opportunity to cure with an amended petition). Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 6 of 29 PageID #: 110 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 7 2. This court lacks jurisdiction over claims brought by Brianna Johns as a representative of the Estate of Leo Johns, as her appointment as the administrator of Leo Johns’ estate in Utah does not confer upon her the ability to sue or be sued in the courts of Texas. Brianna Johns submits evidence to this Court in the form of Letters of Administration from the Third Judicial District Court of Salt Lake County, Utah to support her ability to bring suit on behalf of the Estate of Leo Johns in this case. [Doc. No. 2-5, pp. 2-3] As a general rule, Texas courts have no jurisdiction over a representative of an estate who holds that status by virtue of an appointment in another state or nation. This was explained in the case of Faulkner v. Reed, 241 S.W. 1002 (Tex. Com’n. App. 1922, judgm’t adopted), when the commission of appeals explained: An administrator, appointed by the courts of Ohio, could not, by virtue of said appointment sue or be sued in the courts of Texas, or in any way act as legal representative of said estate in Texas. An administrator is the agent solely of the court appointing him, clothed with authority to administer only such assets as are within the jurisdiction of the court making such appointment. In other words, an administrator has no extraterritorial authority. Faulkner, 241 S.W. at 1007 (emphasis added). It is well-settled that Texas courts lack jurisdiction over suits brought by or against the administrator or executor of an estate appointed in a foreign jurisdiction. See, e.g., Diaz v. Elkin, 434 S.W.3d 260, 265 (Tex. App. - Houston [1st Dist.] 2014); Strawder v. Thomas, 846 S.W.2d 51, 63-64 (Tex. App. - Corpus Christi 1992, no writ); Minga v. Perales, 603 S.W.2d 240, 242 (Tex. App. - Corpus Christi 1980, no writ). Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 7 of 29 PageID #: 111 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 8 As Plaintiffs have brought forth no evidence Brianna Johns has been authorized by a Texas court to administer the Estate of Leo Johns, this Court lacks jurisdiction over all claims raised under the Texas Survival Statute, and they should be dismissed for lack of subject matter jurisdiction. 3. None of the Plaintiffs are authorized to raise a cause of action under Bivens on behalf of deceased inmate Johns as a survival action. It is well-settled that a Bivens claim against a government actor whose conduct fatally injures a person survives the death of that person. Carlson v. Green, 446 U.S. 14, 24 (1980) (if state statutes or state common law would abate the survival of the action, the action survives pursuant to federal common law). The question for the Court to decide is who has standing to bring the action on behalf of the deceased. In most cases, it is the personal representative of the estate of the deceased. See Carlson (administratrix of the estate filed the action); Jones v. George, 533 F. Supp. 1293 (S.D. W.Va. 1982) (claim filed by administratrix of Plaintiff’s estate); Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) (§ 1983 survival action must be brought by estate of deceased victim). Berry further holds that federal courts must fashion a federal remedy to be applied to § 1983 death cases, and the remedy should be a survival action, brought by the estate of the deceased victim, in accord with § 1983’s express statement that the liability is “to the party injured”. See Berry, 900 F.2d at 1506-07 (citing 42 U.S.C. § 1983) (emphasis added). See also Neal v. City of Hempstead, No. H.-12- Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 8 of 29 PageID #: 112 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 9 1733, 2013 WL 105036 (S.D. Tex. January 8, 2013) (unpublished)2 (noting that generally, only personal representatives of the estate are entitled to bring a personal injury action) (citing Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-50 (2005)). As stated above, the defendants do not believe Brianna Johns was properly appointed Letters of Administration in the State of Utah. Therefore, she cannot bring a Bivens cause of action for alleged constitutional violations on behalf of the decedent, Leo Johns, against Defendant Lara at this juncture. The remaining plaintiffs face a similar problem with regard to standing. This case should be dismissed for lack of subject matter jurisdiction at this juncture without prejudice in the event Plaintiffs are able to correct this issue. 4. All state claims for negligence, gross negligence, and intentional infliction of emotional distress are currently barred under 28 U.S.C. § 2675(a). Plaintiffs are attempting to assert pendent state claims of negligence, gross negligence, and intentional infliction of emotional distress in the First Amended Complaint. [See Doc. No. 2, ¶¶ 3, 57, 58, and 59] Under 28 U.S.C. § 1346(b)(1), the district courts shall have exclusive jurisdiction on claims against the United States for money damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting 2 A copy of this case is included at Exhibit B. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 9 of 29 PageID #: 113 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 10 within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b)(1) (2015). As plaintiffs have correctly pointed out in paragraph 6 of the First Amended Complaint, all three claimants have filed administrative tort claims with the Federal Bureau of Prisons on April 15, 2016, and responses are expected on or before October 14, 2016. [See Doc. No. 2, ¶ 6] Any waiver of sovereign immunity by the United States under the Federal Tort Claims Act (FTCA) for wrongful death actions is subject to the statutory constraints found at 28 U.S.C. § 2675(a). Under this provision: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . . . 28 U.S.C. § 2675(a) (2015) (emphasis added). Congress instituted this presentation requirement “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” Frantz v. United States, 29 F.3d 222, 224 (5th Cir. 1994) (quoting S. REP. NO. 1327, 89th Cong., 2d Sess. 6 (1966), U.S. Code Cong. & Admin. News 1966, Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 10 of 29 PageID #: 114 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 11 pp. 2515-2516). Every premature filing of an action under the FTCA imposes a burden on the judicial system and on the Department of Justice which, as here, must assume the defense of such actions. McNeil v. United States, 508 U.S. 106, 112 (1993). For that reason, “[t]he failure of a claimant to exhaust his administrative remedies prior to filing an action under the FTCA deprives the court of subject matter jurisdiction over the suit.” Ross v. Runyon, 858. F. Supp. 630, 636 (S.D. Tex. 1994) (citing Reynolds v. United States, 748 F.2d 291, 292 (5th Cir. 1984) and Taylor v. Administrator of Small Bus. Admin., 722 F.2d 105, 110 (5th Cir. 1983)). Here, the plaintiffs filed the First Amended Complaint on June 8, 2016, over four months before the statutorily required six months had passed, and thus the jurisdictional defect in this lawsuit cannot be cured. As a result, the Court does not have subject matter jurisdiction to hear Plaintiffs claims sounding in negligence, gross negligence, or intentional infliction of emotional distress at this time and they must be dismissed. McNeil, 508 U.S. at 113; Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981); Employees Welfare Comm. v. Daws, 599 F.2d 1375, 1378 (5th Cir. 1979). 5. All “Unknown Officers 1-5” defendants should be dismissed for insufficient service of process. In paragraph 18 of the First Amended Complaint, Plaintiffs seek to name “Defendant’s Unknown Officers 1-5” in their individual capacities. [Doc. No. 2, ¶ 18] These “unknown officers” are alleged to have committed negligent and/or reckless acts Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 11 of 29 PageID #: 115 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 12 and omissions, and they may or may not have been acting within the scope of their employment with the BOP at all material times. [Id. ¶ 19] Defendant asserts that it is too late for the plaintiffs to substitute a named defendant for these “unknown officers,” as the statute of limitations for this claim expired on June 9, 2016, which is two years after the June 9, 2014 date of death for inmate Johns. See Aggarwai v. Sec. of State, 951 F. Supp. 642, 650 (S.D. Tex. 1996) (finding a Bivens action is controlled by the applicable state statute of limitations, which is two years for a civil rights claimant in Texas). Summons were issued for Unknown Officers 1-5 on June 9, 2016 [Doc. No. 3], yet to date there is nothing indicating these individuals were served on the docket sheet. Under Federal Rule of Civil Procedure 4(m), if a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. FED. RULE CIV. PROC. 4(m) (effective December 1, 2015). It should be noted the deadline created under Rule 4(m) is the deadline to effectuate service of process. See FED. RULE CIV. PROC. 4(m). Defendants seek to have the “Unknown Officers 1-5” dismissed from this action for failure to effect timely service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). In re Katrina Canal Breaches Litig. v. Dep’t of Transp. and Dev, Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 12 of 29 PageID #: 116 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 13 No. 07-30349, 309 Fed. App’x. 833, 2009 WL 294791, at * 835 (5th Cir. 2009) (unpublished)3. 6. Plaintiffs have failed to demonstrate Defendant Lara violated inmate Johns’ Fourth Amendment rights by the conduct alleged in the First Amended Complaint. While Plaintiffs allege a violation of inmate Johns’ Fourth Amendment rights in the complaint, there is never any discussion regarding how the named Defendants violated the Fourth Amendment in the First Amended Complaint. [See generally Doc. No. 2] The Fourth Amendment to the U.S. Constitution ensures the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and that no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. See U.S. Const. amend. IV. There are no allegations in the First Amended Complaint that the named Defendants improperly seized either the person or property of inmate Johns. A Bivens4 action must be premised upon the personal involvement of the named defendants. See FDIC v. Meyer, 510 U.S. 471, 485 (1994) (explaining that “the purpose of Bivens is to 3 Under Federal Rule of Appellate Procedure 32.1(a) and Fifth Circuit Rule 47.5.4, unpublished decisions, while not precedent, may be cited and considered by this Court as persuasive authority. A copy of this case is being included at Exhibit C, in accordance with Federal Rule of Appellate Procedure 32.1(b). 4 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by which the U.S. Supreme Court held that the violation of a person’s constitutional rights by a federal official may give rise to an action for monetary damages in federal court. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 13 of 29 PageID #: 117 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 14 deter the officer”) (emphasis in original). Any allegations brought in the complaint under the Fourth Amendment should be dismissed for failure to state a claim against Defendant Lara. 7. Plaintiffs have failed to allege Defendant Lara violated the Fifth Amendment rights of inmate Johns in the First Amended Complaint. Plaintiffs allege in paragraph 45 of the First Amended Complaint that the Defendants were aware of Johns’ right under both the Eighth and Fifth Amendment right to be free from unlawful government action without Due Process of Law. [See Doc. No. 2, ¶ 45] The Fifth Amendment provides that, “No person… shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. It is presumed the plaintiffs are referring to the death of inmate Johns for the deprivation they/he suffered; however, there is no reference as to what due process, if any, inmate Johns was entitled to from Defendant Lara before his death in the complaint. Further, the “Due Process clause is simply not implicated by a negligent act of an official causing unintended loss or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 334 (1986) (where a government official’s act causing injury to life, liberty, or property is merely negligent, no procedure for compensation is constitutionally required) (quotation omitted); Bowie v. Procunier, 808 F.2d 1142 (5th Cir. 1987). Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 14 of 29 PageID #: 118 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 15 As Plaintiffs have failed to put either this Court or the defendants on notice regarding the nature of the Fifth Amendment claim, the claim must also be dismissed on this basis. See Mayle v. Felix, 545 U.S. 644, 655 (2005) (Describing the pleading standard established under Federal Rule of Civil Procedure 8(a) as requiring “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 8. All Eighth Amendment claims raised in the First Amended Complaint against Defendant Lara should be dismissed for failure to state a claim. The First Amended Complaint alleges Defendant Lara established and maintained a policy, practice, or custom that he had no discretion to maintain which directly caused constitutional harm to inmate Johns. [Doc. No. 2, ¶ 44] The complaint states Defendant Lara participated in violating the rights of decedent, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the officer defendants’ unconstitutional conduct. [Id.] The plaintiffs urge that Defendant Lara’s deliberate indifference is evidenced by the regular occurrence of excessive inmate violence and use of drugs and alcohol, and the failure to discipline the officer defendants for turning a blind eye or encouraging inmate violence and alcohol and drug use. [Id.] Defendant Lara has provided a declaration, attached at Exhibit D to this motion, indicating that he was not the Complex Warden at the Federal Correctional Complex in Beaumont, Texas (FCC Beaumont) during the time period alleged in the complaint. (Exhibit D, Declaration of Francisco Lara, ¶ 3.) As such, Defendant Lara had no Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 15 of 29 PageID #: 119 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 16 supervisory authority over USP Beaumont, where inmate Johns was housed at the time of his death. (See id. ¶ 3.) Defendant Lara was also not the Acting Warden at USP Beaumont on June 9, 2014. (Id.) Defendant Lara was the Warden at the Medium Security Institution at FCC Beaumont from February 2014 until February 2015. (Id. ¶ 1.) Defendant Lara did not direct any staff at USP Beaumont to violate the rights of inmate Johns. (Id. ¶ 3.) He also did not have any knowledge of any threats made against inmate Johns, or any plans or information that inmate Johns would be assaulted prior to being informed of the incident after it occurred that day when he was working as the Warden at the Medium Security Institution at FCC Beaumont. (Id.) Further, Defendant Lara stated he was not responsible for providing discipline to the staff at USP Beaumont in connection with violations of BOP policy during the time frame at issue. (Exhibit D, ¶ 4.) Due to this fact, Defendant Lara was not privy to any alleged violations committed by the officer defendants, and he did not acquiesce to the purported unconstitutional conduct alleged in the complaint. (Id.) It is clear from Defendant Lara’s declaration that he was not responsible for implementing any policies, practices, or customs at USP Beaumont which caused harm to inmate Johns. He was also not responsible for providing discipline to staff at USP Beaumont for violations of BOP policy during the time frame at issue, as he had no supervisory authority over disciplining the officers. (See id.) To establish Bivens supervisory liability for failure to prevent misconduct, a plaintiff must show that the supervisor is directly responsible for the improper action. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 16 of 29 PageID #: 120 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 17 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A government official is “only liable for his or her own misconduct,” and a plaintiff must show that “each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. Further, “supervisors who are simply negligent in failing to detect and prevent subordinate misconduct are not personally involved.” Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) (citation omitted). They must act either “knowingly or with deliberate, reckless indifference.” Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988)). See also Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992) (“Well settled [Bivens] jurisprudence establishes that supervisory officials cannot be held vicariously liable for their subordinates’ actions.”) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 691-95 (1978)). Further, it is firmly established that respondeat superior liability is not available in a Bivens action. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998). See also Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (supervisors cannot be held liable under 42 U.S.C. § 1983 (action analogous to a Bivens action) for the actions of subordinates on any theory of vicarious or respondeat superior liability). “A supervisory official may be held liable … only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates v. Texas Dep’t of Prot. & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)). Additionally, the Fifth Circuit Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 17 of 29 PageID #: 121 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 18 has held that there is no supervisory liability without primary liability. Gibbs v. King, 779 F.2d 1040, 1046 n. 6 (5th Cir. 1986). As stated in Defendant Lara’s declaration, he did not implement any policies, practices, customs, or procedures at USP Beaumont prior to the death of inmate Johns. (Exhibit D, ¶ 3.) He also was not privy to any alleged policy violations committed by the officer defendants, and he did not acquiesce to the purported unconstitutional conduct alleged in the complaint. (Id. ¶ 4.) Further, Defendant Lara did not have any knowledge of any threats made against inmate Johns, or any plans or information that inmate Johns would be assaulted prior to being informed of the incident after it had occurred. (Id. ¶ 3.) Accordingly, Defendant Lara should be dismissed from this suit as the plaintiffs have failed to demonstrate he committed a constitutional violation. DEFENDANT LARA’S MOTION FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 56 Alternatively, Defendant Lara is entitled to summary judgment in his favor under the doctrine of qualified immunity. I. ARGUMENTS AND MEMORANDUM OF LAW A. Defendant Lara is entitled to qualified immunity to protect him from the allegations raised in the First Amended Complaint. Plaintiffs assert there is no entitlement to qualified immunity because the defendants committed constitutional violations under current law, and the acts and omissions of the government officials were unreasonable from an objective standpoint in light of clearly established law. [See Doc. No. 2, ¶ 45] Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 18 of 29 PageID #: 122 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 19 In response to these assertions, the doctrine of qualified immunity shields officials from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (internal quotation omitted). It also protects from trial and the discovery that accompanies civil litigation and is thus “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Saucier v. Katz, 533 U.S. 194, 200-01 (2001) overruled by Pearson v. Callahan, 555 U.S. 223 (2009) (the privilege is an immunity from suit rather than a mere defense to liability) (quotations omitted). “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231. See also Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994) (qualified immunity has been recognized to protect “all but the plainly incompetent or those who knowingly violate the law”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). When a defendant raises qualified immunity as a defense, the burden shifts to the plaintiff to prove that the government official is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013). The plaintiff must do this by establishing that the official’s allegedly wrongful conduct violated clearly established law. See Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 19 of 29 PageID #: 123 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 20 Kovacic v. Villarreal, 628 F.3d 209, 211-12 (5th Cir. 2010) (quoting Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001) (internal quotation omitted). The United States Supreme Court requires resolution of two inquiries when analyzing a qualified immunity defense: (1) “whether the facts taken in the light most favorable to the party asserting the injury show the [defendant’s] conduct violated a [federal] right;” and (2) “whether this right in question was “clearly established” at the time of the violation.” Tolan v. Cotton, __ U.S. __, 134 S.Ct. 1861, 1865-66 (2014) (citing Saucier, 533 U.S. at 201 and Hope v. Pelzer, 536 U.S. 730, 739 (2002). If these two inquiries can both be answered in the affirmative, to defeat qualified immunity, the plaintiff must show that the official’s conduct was objectively unreasonable in light of a clearly established rule of law. Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015) (citation omitted). “The first prong requires the plaintiff to allege ‘the deprivation of an actual constitutional right.’ ” Hampton v. Oktibbeha County Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007) (quoting Felton v. Polles, 315 F.3d 470, 477 (5th Cir. 2002)). Under the second prong, a right is clearly established if “existing precedent [has] placed the statutory or constitutional question beyond debate.” Doe v. Robertson, 751 F.3d 383, 387 (5th Cir. 2014) (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)) (emphasis in original). Courts must ask “whether the law so clearly and unambiguously prohibited the conduct that every reasonable official would understand that what he is doing violates the law.” Wyatt, 718 F.3d at 503 (citing Morgan, 659 F.3d Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 20 of 29 PageID #: 124 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 21 at 371) (emphasis in original). “The salient question is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan, __ U.S. __, 134 S.Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Further, “if reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity.” Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel v. Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). The question of whether an officer’s conduct was objectively unreasonable in light of clearly established law is a matter of law for the courts to decide. Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000) (quoting Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999). See also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (whether an official’s conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury) (citation omitted). Plaintiffs assert in paragraph 44 of the First Amended Complaint that Defendant Lara acted with deliberate indifference when he established policies, practices, and/or customs that he had no discretion to maintain which caused constitutional harm to Johns. [See Doc. No. 2, ¶ 44] It is further alleged Defendant Lara participated in violating the rights of the decedent, directed others to violate them, or as the person in charge, had knowledge of and acquiesced in officer defendant’s unconstitutional conduct. [Id.] These statements on their face do not amount to a constitutional violation. There are two theories of supervisory liability: (1) failure to train or supervise the officers involved and Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 21 of 29 PageID #: 125 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 22 a causal connection between the alleged failure and the alleged violation of the plaintiff’s rights, Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001), and (2) implementation of “a policy so deficient that the policy itself is a repudiation of constitutional rights and is “the moving force of the constitutional violation.”) Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1985). As stated in Defendant Lara’s declaration, he did not supervise the staff at USP Beaumont during the time frame alleged in the First Amended Complaint. (See Exhibit D, ¶ 3.) The plaintiffs have also failed to submit any policies or practices which were a deprivation of inmate Johns’ constitutional rights allegedly created by Defendant Lara. Conclusory allegations and unsubstantiated assertions are not sufficient to withstand summary judgment. See Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (the nonmoving party in a motion for summary judgment must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim) (citation omitted); Fickes v. Jefferson County, 900 F. Supp. 84, 88 (E.D. Tex. 1995) (none of the summary judgment proof, including the plaintiff’s complaint, pointed to the existence of any policy that related in any way to the failure to protect claim, so summary judgment was granted in the sheriff’s favor). Defendant Lara is entitled to qualified immunity because he was not in a supervisory position over USP Beaumont at the time of the events at issue in the complaint. Defendant Lara was not the Complex Warden at the time period alleged in the complaint, and he also had no supervisory authority over USP Beaumont. (See Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 22 of 29 PageID #: 126 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 23 Exhibit D, ¶ 3.) He did not implement any policies, practices, customs, or procedures at USP Beaumont prior to the death of inmate Johns. (Id.) Additionally, he did not have any prior knowledge of any threats made against inmate Johns, or any plans or information that inmate Johns would be assaulted prior to be informed of the incident after it had occurred. (Id.) Plaintiffs have failed to demonstrate Defendant Lara was involved with any of the allegations raised in the complaint. Therefore, he requests summary judgment be granted in his favor on the basis of qualified immunity. AFFIRMATIVE DEFENSES BEING ASSERTED IN RESPONSE TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1. Decedent’s negligence is greater than the alleged actions of Defendant Lara, thus allowing the Court to bar Plaintiffs’ recovery in any claims asserted under the Texas Survival Act. The statutory right of beneficiaries to maintain a survival action under Texas Civil Practice and Remedies Code § 71.021 is entirely derivative of the decedent’s right to have sued for his own injuries immediately prior to his death, and is subject to the same defenses to which the decedent’s action would have been subject. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992) (providing that any defenses that would be available against the decedent if he were alive may be asserted against his estate). Recoverable damages include those for physical pain and suffering, mental anguish, property damage sustained by the decedent before death, and related medical Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 23 of 29 PageID #: 127 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 24 expenses and funeral expenses. Borth v. Charley’s Concrete Co., Inc., 139 S.W.3d 391, 395 (Tex. App. - Fort Worth 2004, pet. denied) (citation omitted). Texas applies the proportionate responsibility framework, wherein a claimant may not recover damages if his percentage of responsibility is greater than 50 percent. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (Vernon 1995). “If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant’s percentage of responsibility. TEX. CIV. PRAC. & REM. CODE ANN. § 33.012(a) (Vernon 2008). “Texas courts have construed the [then comparative negligence statute] to bar recovery by survivors in a wrongful death action, where the deceased’s negligence is greater than the alleged tortfeasor’s.” Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007, 1009 (citing Velasquez v. Livingston, 598 S.W.2d 346, 349 (Tex. App. - Corpus Christi 1980, no writ). Defendants assert inmate Leo Johns was responsible for his death on June 9, 2014, due to his actions and interactions with the Soldiers of Aryan Culture gang prior to the homicide at USP Beaumont. As stated in the Declaration of Reshay Childress, attached to this Motion at Exhibit E, inmate Johns was involved in an incident where he possessed alcohol in his cell on December 31, 2013. (See Exhibit E, Declaration of Reshay Childress, ¶ 6 - FILED UNDER SEAL.) One of the tenets of the Soldiers of Aryan Culture (SAC) gang is that their members will not consume alcohol or drugs. (Id.) The Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 24 of 29 PageID #: 128 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 25 office of SIA Childress received information from the Utah Department of Corrections indicating inmate Johns was a validated member of SAC since August 19, 2008. (Id.) Additionally, BOP staff monitoring the Inmate Telephone System after the homicide revealed that an inmate told inmate Johns’ step-brother that inmate Johns had made a deal with the SAC that he was not going to be using drugs or drinking anymore, but inmate Johns did not hold up his end of the deal. (See id. ¶ 10.) The inmate making the call also claimed that before inmate Johns went out on writ he stole some of his cellmate’s belongings, who was another member of the SAC, and they (the SAC) gave him a pass. (See id.) While the caller claimed inmate Johns was disciplined (beat up) for this conduct, inmate Johns was not supposed to drink or use drugs anymore, but inmate Johns disregarded this agreement and continued his behavior. (See id.) This conduct by the victim demonstrates he was more than 50 percent responsible for his injuries, thus allowing a complete bar to recovery on any survival action being sought on behalf of the Estate of Leo Johns. See JCW Electronics, Inc. v. Garza, 257 S.W.3d 701, 707 (Tex. 2008) (after finding Chapter 33 applied to implied warranty claims, the court held because the jury found the decedent negligent and apportioned him sixty percent of the responsibility for his death, his contributory negligence barred recovery in the case). All claims raised under the Texas Survival Act should be barred by the decedent’s contributory negligence. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 25 of 29 PageID #: 129 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 26 2. All claims being raised under the Texas Wrongful Death Act should be denied because inmate Johns was more than 50% responsible for his death, and Texas Civil Practice and Remedies Code § 33.012(a) bars recovery. All claims brought pursuant to the Texas Wrongful Death Act should also be barred due to the actions of inmate Johns. In the case of Smith v. East, 411 S.W.3d 519 (Tex. App. - Austin, 2013, pet. denied) a mother sued the owners of a liquor store from where the mother alleged her minor daughter had obtained alcohol under the age of 21 and died from acute alcohol poisoning. The jury apportioned 40% of the liability to the mother and 25% of the liability to her minor daughter. The court applied the controlling statutory language of Texas Civil Practice and Remedies Code §§ 33.001 and .011(1) (defining who a “claimant” is under the statute) to these facts and held the jury’s findings apportioning more than 50% of the responsibility to both the mother and to the minor daughter barred the mother from recovering under the Texas Wrongful Death statute. See Smith, 411 S.W.3d at 529. As evidenced by the declaration of Reshay Childress, inmate Johns had been a validated member of the SAC since August 19, 2008. (Exhibit E, ¶ 6.) One of the tenets of this group is that their members will not consume alcohol or drugs. (Id.) Inmate Johns was found to have alcohol in his cell when a cell search was conducted on December 31, 2013. (See id.) Additionally, BOP staff monitoring the Inmate Telephone System discovered that on June 16, 2014, an inmate told the step-brother of inmate Johns that inmate Johns had made a deal with the SAC that he was not going to be using drugs or Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 26 of 29 PageID #: 130 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 27 drinking anymore. (Exhibit E, ¶ 10.) The inmate caller stated inmate Johns did not hold up his end of the deal. (Id.) The inmate caller further claimed inmate Johns had stolen property from his cellmate before he went out on writ, and he was another member of the SAC. (See id.) While the caller claimed inmate Johns was disciplined for his conduct, he was supposed to not drink or use drugs anymore. (See id.) However, inmate Johns disregarded this agreement and continued his behavior. (Id.) As inmate Johns was more than 50% responsible for his demise due to his actions, it is requested all claims asserted under the Texas Wrongful Death Act be barred under Texas Civil Practice and Remedies Code § 33.001. Alternatively, if the plaintiffs are not barred from recovery under Section 33.001, Defendant Lara requests a reduction in the amount of damages to be recovered equal to the apportioned responsibility given to inmate Johns under Texas Civil Practice and Remedies Code § 33.012(a). 3. Exemplary damages should not be awarded under either the Texas Survival Act or the Texas Wrongful Death Act. Defendant Lara further objects to any claimed exemplary damages in the First Amended Complaint. Punitive damages are recoverable only after proof of a distinct, willful tort. Nabours v. Longview Sav. & Loan Assoc., 700 S.W.2d 901, 904 (Tex. 1985) (citation omitted). As previously stated, Plaintiffs claims under the Federal Tort Claims Act are not ripe for review. The bare allegations in the pleading do not support a finding of either willful conduct on the part of Defendant Lara or a showing of gross negligence. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 27 of 29 PageID #: 131 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 28 Therefore, Defendant Lara requests that exemplary damages not be awarded to Plaintiffs in this suit. CONCLUSION Based upon the above arguments, all claims brought under Bivens and the Texas Survival Act should be dismissed for lack of subject matter jurisdiction, as it appears Brianna Johns was not of an age to qualify to serve as a personal representative when the Letters of Administration were issued to her in Utah. This court also does not have jurisdiction over the suit being brought by the Estate of Leo Johns by Ms. Johns, as Texas courts have no jurisdiction over a representative of an estate who holds that status by virtue of an appointment in another state. Any claims being raised for negligence, gross negligence, or intentional infliction of emotional distress under the Federal Tort Claims Act are due to be dismissed at this juncture, as this suit was filed before the expiration of the six-month requirement found at 28 U.S.C. § 2675(a). All “Unknown Officers 1-5” should be dismissed for insufficient service of process, as over 90 days have elapsed since summons were issued, and there is no indication they have been served to date. Plaintiffs have further failed to demonstrate how Defendant Lara violated the Eighth Amendment rights of inmate Johns, so all claims made against him are due to be dismissed for failure to state a claim. Alternatively, as Defendant Lara is a federal employee, qualified immunity should be granted to him to shield him from the rigors of this suit. Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 28 of 29 PageID #: 132 Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Page 29 Defendant Lara respectfully requests that the Court grant this Motion, and any other relief it deems just and proper. Respectfully submitted, BRIT FEATHERSTON ACTING UNITED STATES ATTORNEY /s/ Andrea L. Parker_________ ANDREA L. PARKER Assistant United States Attorney Texas Bar No. 00790851 350 Magnolia Avenue, Suite 150 Beaumont, Texas 77701-2237 Tel: (409) 839-2538 Fax: (409) 839-2643 Email: andrea.parker@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that on October 13, 2016, a true and correct copy of the foregoing document was filed electronically with the court and has been sent to counsel of record via the court’s electronic filing system. /s/ Andrea L. Parker_________ ANDREA L. PARKER Assistant United States Attorney CERTIFICATION OF FILING OF MOTION TO SEAL Pursuant to Local Rule CV-5(a)(7)(A), undersigned counsel certifies that on October 13, 2016, Defendant filed a Motion to Seal the Exhibit E to Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. [Doc. #12]. /s/ Andrea L. Parker_________ ANDREA L. PARKER Assistant United States Attorney Case 1:16-cv-00198-MAC Document 13 Filed 10/13/16 Page 29 of 29 PageID #: 133 Exhibit A Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 1 of 16 PageID #: 134 S 75-3-203. Priority among persons seeking appointment as..., UT ST S 75-3-203 West's Utah Code Annotated Title ZS. Utah Uniform Probate Code (Refs &Annos) Chapter 3. Probate of Wills and Administration (Refs & Annos) Part 2. Venue for Probate and Administration--Priority to Administer--Demand for Notice U.C.A.1953 S 71-S-zos S 75-3-203. Priority among persons seeking appointment as personal representative Currentness (l) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order: (a) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will; (b) the surviving spouse ofthe decedent who is a devisee ofthe decedent; (c) other devisees ofthe decedent; (d) the surviving spouse ofthe decedent; (e) other heirs ofthe decedent; (f) 45 days after the death ofthe decedent, any creditor. (2) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in Subsection (l) apply except that: (a) If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualilied person; (b) In case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than one-half of the probable distributable value, or, in default ofthis accord, any suitable person. (3) A person entitled to letters under Subsections (1)(b) through (1)(f) and a person aged lg and over who would be entitled to letters but for his age, may nominate a qualified person to act as personal representative. Any person aged l g and over may renounce his right to nominate or to an appointment by appropriate writing filed with the court. When WESTLAW 0 2016 Tho:nson Reuters.No cla計 n to Original u.s.6overnment VVO「 ks Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 2 of 16 PageID #: 135 ＦＩＩＬ S 75-3-203. Priority among persons seeking appointment as..., UT ST S 75-3-203 two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment in informal proceedings. When two or more persons share a priority, any one or more of them who do not renounce may nominate another to act or apply for appointment in formal proceedings. Before appointing fewer than all persons who share a priority and who have not renounced or nominated another, the court must determine that those sharing the priority, although given notice of the formal proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary. (4) Conservators of the estates of protected persons, or if there is no conservator, any guardian, except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment. (5) Appointment of one who does not have priority under Subsection (l) or priority resulting from renunciation or nomination determined pursuant to this section may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary. (6) No person is qualified to serve as a personal representative who is: (a) under the age of2l; (b) a person whom the court finds unsuitable in formal proceedings. (7) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative. (8) This section governs priority for appointment ofa successor personal representative but does not apply to the selection of a special administrator. Credits Laws 1975, c. 150, $ 4; Laws 1983, c. 226,5 5. u.c.A. 1953 S 7s-3-203, UT ST $ 75-3-203 Current through 2016 Third Special Session End of l)ocument 「二 VVESTLAW O 2016 Thomsou Reuters. No claim to original U.S. Governmcut Works 2016丁 hoins( ters.No cla Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 3 of 16 PageID #: 136 Exhibit B Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 4 of 16 PageID #: 137 Neal v. City of Hempstead, Tex., Not Reported in F.Supp.2d (2013) 2013 WL 105036 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 105036 Only the Westlaw citation is currently available. United States District Court, S.D. Texas, Houston Division. Darrelle NEAL, Individually and as Representative of the Estate of Terrelle Houston, Plaintiff, v. CITY OF HEMPSTEAD, TEXAS, et al., Defendant. Civil Action No. H-12-1733. | Jan. 8, 2013. Attorneys and Law Firms Stephen Rolfe Walker, Attorney at Law, Lufkin, TX, for Plaintiff. William Scott Helfand, Norman Ray Giles, Chamberlain Hrdlicka Et Al, Houston, TX, for Defendant. MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge. *1 Four motions are currently before the Court. They are: (1) Defendants City of Hempstead (“the City” or “Hempstead”), Chief David Hartley (“Chief Hartley”), and Sergeant Byron Fausset's (“Sgt.Fausset”) (collectively “Defendants”) Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (Doc. No. 9); (2) Defendants' Rule 12(b)(1) Motion to Dismiss (Doc. No. 24); (3) Plaintiff Derrelle Neal's (“Neal” or “Plaintiff”) Partial Motion to Dismiss (Doc. No. 19); and (4) Plaintiff's Motion to Stay (Doc. No. 21). After considering the motions, all responses thereto, and the applicable law, the Court finds that the Defendants' Rule 12(b)(1) Motion to Dismiss must be DENIED AS NOT RIPE WITHOUT PREJUDICE TO REFILING, Defendants' Rule 12(b)(6) Motion to Dismiss to must be DENIED AS NOT RIPE WITHOUT PREJUDICE TO REFILING, and Plaintiff's Partial Motion to Dismiss must be GRANTED. Plaintiff's Motion for Stay will be addressed at a subsequent hearing. I. BACKGROUND 1 This lawsuit arises from the death of Terrelle Houston (“Houston”). Houston was raised by Plaintiff, who is his maternal aunt. (Doc. No. 19, Pl.'s Mot. to Dismiss, at 1.) After Houston's death, Neal brought this suit individually and as representative of the Estate of Terrelle Houston (“the Estate”). On the night of June 8, 2010, Sgt. Fausset, an employee of the Hempstead Police Department (“HPD”), was responding to a 911 hang-up call that had come in from a phone line at or near the Willowchase Apartments in Hempstead, Texas. (Doc. No. 1, Compl.¶ 14.) Shortly after arriving at the Willowchase Apartments, Sgt. Fausset encountered Houston, a twenty-two-year-old black male. (Id.) Houston attempted to run away from Sgt. Fausset, but tripped and fell to the ground. (Id. ¶ 15.) Sgt. Fausset then drew his Taser weapon and shocked Houston. (Id.) After gaining control of Houston and placing him in handcuffs, Sgt. Fausset continued to repeatedly shock Houston until he became unresponsive. (Id.) Throughout this incident, Houston was lying face down, restrained, in a pool of water; he was also unarmed. (Id. ¶¶ 14-15.) Houston remained alive for an uncertain period of time, estimated to be one or two hours. (Id. ¶ 22.) Despite being aware that Houston was in extreme pain and struggling to breathe, Sgt. Fausset delayed calling 911 and did not offer Houston any emergency assistance. (Id.) Plaintiff, originally representing herself to be Houston's biological mother, brought this suit against Sgt. Fausset, Chief Hartley, and the City on June 8, 2012. Plaintiff's Complaint contains numerous claims under 42 U.S.C. §§ 1981, 1983, and 1988 for violations of the Fourth, Eighth, and Fourteenth Amendment. (Id. ¶¶ 30-41.) Neal also alleges several state law causes of action arising out of above facts. (Id. ¶¶ 42-43, 48.) The Complaint includes claims under both the Texas Survival Statute, Tex. Civ. Prac. & Rem.Code §§ 71.021 et seq., which Neal brings as representative of the Estate, and the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem.Code §§ 71.001 et seq., which Neal brings in her individual capacity. (Id. ¶¶ Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 5 of 16 PageID #: 138 Neal v. City of Hempstead, Tex., Not Reported in F.Supp.2d (2013) 2013 WL 105036 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 44-47 .) On August 1, 2012, Defendants filed a Rule 12(b) (6) Motion to Dismiss for Failure to State a Claim. (Doc. No. 9.) *2 On September 19, 2012, before the Court had decided the Rule 12(b)(6) Motion, Stephen R. Walker, attorney for Plaintiff, filed a letter with the Court advising the Court of important developments in this case. (Doc. No. 17, Sept. 19, 2012 Letter to the Court.) Specifically, he informed the Court that he had recently discovered that Neal was not Houston's biological mother. (Doc. No. 17, Sept. 19, 2012 Letter to the Court, at 1.) He explained that Neal had hired him on the eve of the statute of limitations, and that she had represented herself to be his mother. (Id. at 2.) Neal's attorney began to realize that Neal may not be Houston's biological mother on September 12, 2012, while reviewing police records that identified her as the aunt. (Id.) Walker then contacted Neal, whereupon Neal explained that she was, in fact, Houston's maternal aunt. (Id.) She indicated that she had raised Houston “like her own and considered him her son,” and that she “truly believed and considered Terrelle Houston to be her son.” (Id.) She also stated that, at some point during Houston's childhood, she had been appointed his legal guardian. (Id.) Walker then proceeded to take the necessary steps to have Neal appointed as representative of the Estate. (Id.) He obtained permission from Houston's father, who confirmed that Neal did, in fact, raise Houston. (Id.) Walker also indicated his intent to initiate probate proceedings to have Neal approved as representative of the Estate. (Id.) Subsequently, on September 24, 2012, Plaintiff filed a Partial Motion to Dismiss, seeking voluntarily to dismiss the claims brought in her individual capacity. (Doc. No. 19, Pl.'s Partial Mot. to Dismiss.) Plaintiff also filed a Motion to Stay, requesting a stay of the proceedings until she is appointed by the probate court to serve as representative of the Estate. (Doc. No. 21, Pl.'s Mot. to Stay ¶ 1.) 2 Defendants represented to the Court that they opposed both of these Motions, maintaining that the recently discovered facts mandated a complete dismissal of the case. On October 9, 2012, Defendants filed a Rule 12(b)(1) Motion to Dismiss, contending that the Court lacks subject-matter jurisdiction over the case. (Doc. No. 24, Defs.' Rule 12(b)(1) Mot. to Dismiss.) On December 3, 2012, Walker filed another letter with the Court, providing an update on the status of the probate proceeding to appoint Neal as representative of the Estate. (Doc. No. 26, Dec. 3, 2012 Letter to the Court.) He indicated that, although a November 29, 2012 probate court hearing had been set in order to issue letters of administration, because an attorney ad litem had not yet been appointed for the heirs of the estate, the hearing was cancelled. (Id.) This is the latest information the Court has on the status of the probate proceedings. II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. “Under Rule 12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir.2012) (internal quotation marks omitted). Lack of subject matter jurisdiction may be found using (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996); Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986). The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980); Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). III. ANALYSIS *3 In their Rule 12(b)(1) Motion, Defendants argue that this Court lacks subject matter jurisdiction over this lawsuit because Neal lacked capacity to bring the survival claim alleged on the Estate's behalf. (Doc. No. 25, Defs.' Rule 12(b)(1) Mot. ¶¶ 4-8.) Specifically, Defendants argue that, because Neal lacks capacity, no one has standing to bring this suit. (Id. ¶¶ 4-8.) Plaintiff contends that, although she lacked capacity to represent the Estate at the time the lawsuit was filed, the Estate's claims brought under the Texas Survival Statute are not time- barred because she will soon acquire capacity, and Texas law allows later acquired capacity to cure prior lack of capacity, even if it is acquired after the statute of limitations has run. (Doc. No. 25, Pl.'s Resp. to Defs.' Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 6 of 16 PageID #: 139 Neal v. City of Hempstead, Tex., Not Reported in F.Supp.2d (2013) 2013 WL 105036 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Rule 12(b)(1) Mot. ¶¶ 7-16.) Plaintiff concedes she has no standing to bring suit under the Texas Wrongful Death Statute. (See generally Pl.'s Partial Mot. to Dismiss.) “Standing under the Civil Rights Statutes is guided by 42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in administration of civil rights suits.” Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.2004); 42 U.S.C. § 1988(a). “Therefore, a party must have standing under the state wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and 1988.” Id. (citing Rhyne v. Henderson Cnty., 973 F.2d 386, 390- 91 (5th Cir.1992)); Handley v. City of Seagoville, Tex., 798 F.Supp. 1267, 1269 (N.D.Tex.1992). Under the Texas Survival Statute, heirs, legal representatives, and the estate of the injured person may bring a survival action. Tex. Civ. Prac. & Rem.Code § 71.021(b). “Generally, only personal representatives of the estate are entitled to bring a personal injury action.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-50 (2005) (citing Shepherd v. Ledford, 962 S.W.2d 28, 31 (1998)). Courts have recognized that, where the individual bringing suit on behalf of the estate is not the estate's representative, the question is one of capacity; the estate plainly has standing. See, e.g., Lovato, 171 S.W.3d. at 848-50 (“A change in the status of the party authorized to assert the decedent's personal injury claim, however, does not change the fact that the decedent has been personally aggrieved and would not, therefore, eliminate the decedent's justiciable interest in the controversy.”); Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.2004) (“Although Fredrick Pluet's estate would have standing under the [Texas Survival Statute] to pursue his 28 U.S.C. § 1983 claims, at the time she filed her complaint, Sandra Hardeman was not the administrator of Fredrick Pluet's estate.”). As the Estate undoubtedly has standing to pursue these claims, the Court now turns to the question of capacity. Plaintiff does not dispute that Neal lacked capacity to bring this lawsuit on behalf of the Estate when the Complaint was filed, and that, at least for now, she still lacks capacity. (Pl.'s Resp. to Defs.' 12(b)(1) Mot., ¶¶ 4-6; Dec. 3, 2012 Letter to the Court.) However, Plaintiff is correct that Texas law allows later-acquired capacity to cure prior lack of capacity, even if by the time capacity is acquired, the statute of limitations has run on the claims brought. Lovato, 171 S.W.3d at 853; Lorentz v. Dunn, 171 S.W.3d 854, 856 (2005); Damian v. Bell Helicopter Textron, Inc., 352 S.W.3d 124, 142-43 (Tex.App.-Fort Worth 2011, pet. denied). In two cases decided on the same day, the Texas Supreme Court made clear that post-limitations acquisition of capacity cures a pre-limitations lack of capacity, and the survival claim is not barred by the statute of limitations because the subsequent acquisition of capacity relates back. Lovato, 171 S.W.3d at 853; Lorentz v. Dunn, 171 S.W.3d 854, 856 (2005). Furthermore, Lovato also provides that, when capacity is challenged, “the trial court should abate the case and give plaintiff a reasonable time to cure any defect.” Lovato, 171 S.W.3d at 853 n. 7. *4 Defendants do not even mention the two Texas Supreme Court decisions that govern this question. (See generally Defs.' Rule 12(b)(1) Mot.) Instead, they rely on one unpublished opinion from a United States district court where the individual who initially filed the case on behalf of the estate never acquired capacity and sought to substitute another individual to represent the estate. Ramirez ex rel. Ramirez v. Bexar Cnty., Tex., No. SA-10- CV-0296, 2011 WL 4565473, at *2-3 (W.D.Tex. Sept.29, 2011). The court held it lacked jurisdiction over the new party. Id. Ramirez is easily distinguishable from this case. Neal is not seeking to substitute a non-party to the original suit as the Estate's representative; rather, Neal seeks to obtain capacity for herself, which, if she is successful, would make this case analogous to the Lovato and Lorentz cases. The Court is aware of one case in which a court dismissed the case for lack of standing where the plaintiff initially lacked capacity to sue on behalf of an estate but subsequently acquired such capacity. See Pluet, 355 F.3d at 385. However, the Fifth Circuit decided Pluet before the Texas Supreme Court issued its opinions in Lovato and Lorentz clarifying that a capacity defect may be cured and should not be understood to deprive an estate of standing. Lovato, 171 S.W.3d. at 848-50, 853; Lorentz, 171 S.W.3d at 856. Because Texas law clearly provides that defects in capacity may be cured without rendering a claim time-barred, and because the Texas Supreme Court has indicated a preference for allowing plaintiffs whose capacity has been challenged “a reasonable time to cure any defect,” the Court finds that Neal must be granted time to attempt to cure the defect in capacity in this case. Lovato, 171 S.W.3d at 853 n. 7. Accordingly, Defendants' Rule 12(b)(1) Motion to Dismiss (Doc. No. 24) must be Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 7 of 16 PageID #: 140 Neal v. City of Hempstead, Tex., Not Reported in F.Supp.2d (2013) 2013 WL 105036 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 DENIED AS NOT RIPE WITHOUT PREJUDICE TO REFILING. Should Neal's application to become the Estate's representative be denied, Defendants may refile their Rule 12(b)(1) Motion to Dismiss. IV. CONCLUSION For the reasons discussed above, the Court finds that Defendants' Rule 12(b)(1) Motion to Dismiss (Doc. No. 24) must be DENIED AS NOT RIPE WITHOUT PREJUDICE TO REFILING if Neal's application to become the Estate's representative is denied. Furthermore, because Neal does not presently represent the Estate, Defendants' Rule 12(b) (6) Motion to Dismiss must also be DENIED AS NOT RIPE WITHOUT PREJUDICE TO REFILING. If the probate court appoints Neal as representative of the Estate, Defendants may refile their Rule 12(b) (6) Motion to Dismiss. Plaintiff's Partial Motion to Dismiss (Doc. No. 19) is GRANTED. Plaintiff's individual claims brought under the Texas Wrongful Death Statute are dismissed with prejudice. A hearing is set for January 11, 2013 at 2:00 p.m. to address Plaintiff's Motion to Stay. (Doc. No. 21.) *5 IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 105036 Footnotes 1 The following facts are drawn from Plaintiff's Complaint (Doc. No. 1) and are accepted as true for purposes of the pending motions. 2 Plaintiff also initially requested that the stay be limited to 90 days. (Mot. to Stay ¶ 1.) Although the Court is addressing these motions over 90 days after the filing of the Motion to Stay, the Court has not been advised that a stay is no longer necessary. Accordingly, the Court assumes Plaintiff continues to desire a stay of the case until the probate court appoints the representative of the Estate. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 8 of 16 PageID #: 141 Exhibit C Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 9 of 16 PageID #: 142 In re Katrina Canal Breaches Litigation, 309 Fed.Appx. 833 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 309 Fed.Appx. 833 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find CTA5 Rule 47) United States Court of Appeals, Fifth Circuit. In re KATRINA CANAL BREACHES LITIGATION. Maureen O'Dwyer; Harold Joseph Gagnet; Sally Egerton Richards; Shane E Porter; Stephanie Porter; et al, Plaintiffs-Appellants v. Department of Transportation and Development, State of Louisiana; Johnny D. Bradberry, Individually and in His Official Capacity as Secretary of the Department of Transportation and Development, State of Louisiana; et al, Defendants-Appellees. No. 07-30349. | Feb. 5, 2009. Synopsis Background: Plaintiffs brought action against various government actors seeking payment for personal injury and property damage caused by flooding following hurricane. The United States District Court for the Eastern District of Louisiana entered order dismissing claims, and plaintiffs appealed. Holding: The Court of Appeals held that state did not waive its sovereign immunity. Affirmed. West Headnotes (1) [1] Federal Courts Litigation conduct Federal Courts Participation in federal programs State did not waive its sovereign immunity with respect to plaintiffs' action seeking damages for losses caused by flooding following hurricane by litigating other lawsuits as plaintiff in federal court arising from hurricane and by accepting federal assistance after hurricane; state's litigation and acceptance of relief did not create any inconsistency, anomaly, or unfairness requiring waiver of sovereign immunity. U.S.C.A. Const.Amend. 11. 5 Cases that cite this headnote Attorneys and Law Firms *834 Ashton R. O'Dwyer, Jr., New Orleans, LA, for Plaintiffs-Appellants. Michael C. Keller, Phyllis Esther Glazer, Office of the Attorney General for the State of Louisiana, New Orleans, LA, for Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:05-CV-4182. Before KING, DENNIS, and ELROD, Circuit Judges. Opinion PER CURIAM: * **1 Plaintiffs-Appellants are approximately 1000 “Victims of [Hurricane] Katrina,” whom Attorney Ashton R. O'Dwyer, Jr. purports to represent in a suit against various government and private actors. Through this and similar suits, O'Dwyer has been responsible for a large volume of Hurricane Katrina-related litigation in the district court, and for a corresponding bevy of appeals. 1 We have repeatedly rejected O'Dwyer's arguments, but Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 10 of 16 PageID #: 143 In re Katrina Canal Breaches Litigation, 309 Fed.Appx. 833 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 he persists in re-arguing the same issues in subsequent appeals. The present appeal challenges an order issued April 3, 2007, in which the district court dismissed claims that, for the most part, it had previously dismissed (and whose previous dismissal we affirmed), 2 but which O'Dwyer re-filed in a new complaint. We AFFIRM the ruling of the district court, and DENY the parties' cross- motions for sanctions. The district court dismissed O'Dwyer's claims against Louisiana agencies and officers, in their official capacities, on sovereign immunity grounds under Federal Rule of Civil Procedure 12(b)(1). We review a 12(b)(1) dismissal de novo. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008). O'Dwyer argues that Louisiana waived sovereign immunity by bringing other lawsuits as a plaintiff in federal court, and constructively waived sovereign immunity by accepting various forms of federal assistance after Hurricane Katrina. This court considered and rejected similar arguments in a prior appeal of this case, and in another argued by O'Dwyer. See O'Dwyer v. United States ex rel. U.S. *835 Army Corps of Eng'rs, 277 Fed.Appx. 512 (5th Cir.2008); Fairley v. Stalder, 294 Fed.Appx. 805 (5th Cir.2008). Again in this appeal, we hold that O'Dwyer fails to demonstrate that Louisiana's litigation conduct created “inconsistency, anomaly, and unfairness” to a degree that requires waiver of sovereign immunity, or that Congress, by unmistakable statutory language, conditioned post-Katrina aid on Louisiana waiving sovereign immunity. See Fairley, 294 Fed.Appx. at 810 (citing Lapides v. Bd. of Regents, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), and Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). O'Dwyer presents two additional arguments regarding claims against Louisiana. First, he argues the district court should have granted him discovery regarding purported “strings attached” to federal Katrina aid, to help him demonstrate constructive waiver. He made the same argument in Fairley, where we determined that “discovery [was] unnecessary and dismissal [was] appropriate,” because O'Dwyer failed to identify any statutory requirement of sovereign immunity waiver. Id. at 810. Here as well, he fails to argue that any such discovery would have helped him satisfy the elements of an otherwise viable claim. Second, O'Dwyer suggests he should be allowed to sue Louisiana actors in their official capacities under 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), held that a state is not a “person” subject to suit under § 1983. O'Dwyer argues that Will should not apply when sovereign immunity is waived. Having affirmed the district court's ruling that sovereign immunity was not waived, we need not reach this argument. **2 The district court dismissed O'Dwyer's § 1983 claims against individual state officers, on qualified immunity grounds, under Federal Rule of Civil Procedure 12(b) (6). We review a dismissal for failure to state a claim de novo. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008). This court rejected O'Dwyer's § 1983 arguments, in connection with the present case, in Appeal No. 06-30840. See O'Dwyer, 277 Fed.Appx. at 513. We do so again. See generally Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.1998). After dismissing O'Dwyer's claims against Louisiana agencies and officials in their public and individual capacities, the district court declined to retain supplemental jurisdiction over related state law claims. We review that decision for abuse of discretion. See Guzzino v. Felterman, 191 F.3d 588, 596 (5th Cir.1999). We previously determined the district court was within its discretion to decline to exercise supplemental jurisdiction in this case, see O'Dwyer, 277 Fed.Appx. at 513, and reach the same conclusion now. See Guzzino, 191 F.3d at 594 (explaining that a district court may decline to exercise supplemental jurisdiction when, inter alia, it has dismissed all claims with original jurisdiction or there are other compelling reasons). In addition, the district court dismissed certain claims removed from state court for failure to effect timely service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). We review that decision for abuse of discretion. Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir.1996). Once the validity of service has been contested, the plaintiff bears the burden of establishing its validity. Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.1992). The parties dispute the source of law for determining the service period, but that dispute is immaterial. O'Dwyer admits his tardiness under any standard. The district court did not abuse its discretion when it dismissed *836 O'Dwyer's claims under Rule 12(b)(5). Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 11 of 16 PageID #: 144 In re Katrina Canal Breaches Litigation, 309 Fed.Appx. 833 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 O'Dwyer next complains about alleged misconduct in the proceedings before the district court, while conceding that these issues are “not yet ‘squarely’ before This Honorable Court.” We agree, and do not consider them. Finally, O'Dwyer argues that the state's lawyers deserve sanctions for allegedly failing, in the proceedings below, to disclose the existence of lawsuits that he argues waived sovereign immunity. It is not clear if this is a request for sanctions from this court or an appeal of the district court's denial of O'Dwyer's motion to disqualify the Louisiana Department of Justice. We reject his argument in either event. Sanctions are not appropriate, and the district court was within its discretion to deny the motion. In addition to the merits of the appeal, Defendants- Appellees have filed a motion for sanctions against O'Dwyer, to which he responded with a motion for sanctions against them. We DENY both motions for sanctions, and AFFIRM the decision of the district court in all regards. All Citations 309 Fed.Appx. 833, 2009 WL 294791 Footnotes * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 O'Dwyer's conduct in litigation below led to escalating sanctions, culminating in his suspension from practice before the Eastern District of Louisiana. O'Dwyer has appealed that suspension. Issues related to sanctions imposed against O'Dwyer below are not before the court in the present appeal. 2 See O'Dwyer v. United States ex rel. U.S. Army Corps of Eng'rs, No. 06-30840, 277 Fed.Appx. 512 (5th Cir.2008). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 12 of 16 PageID #: 145 Exhibit D Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 13 of 16 PageID #: 146 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN TEXAS BEAUⅣ10NT DIVIS10N BRIANNA JOHNS,et al。 , Plaintiffs V. FRANCISCO LARA,et al. Defendants。 § § § C市il Action No.1:16cv198 § § § § DECLARATION OF FRANCISCO LARA In accordance with 28 U.S.C. S 1746,I, Francisco Lara, make the following unsworn declaration, under penalty of perjury, pertinent to the above styled and numbered cause: 1. I am presently employed by the United States Department of Justice, Federal Bureau of Prisons (BOP) as the Complex Warden at the Federal Correctional Complex, Beaumont, Texas (FCC Beaumont). I was previously the Warden at the Medium Security Institution at FCC Beaumont from February 2014 until February 2015. 2. It is my understanding I am being named in the above-captioned lawsuit due to my alleged supervision of the officer defendants in connection with the death of inmate Leo Johns at the United States Penitentiary at FCC Beaumont on June 9,2014. It is claimed that I established a policy, practice, or custom that I had no discretion to maintain which caused constitutional harm to inmate Johns. I am also alleged to have participated in violating the rights of inmate Johns, directed others to violate his rights, or had knowledge of and acquiesced in the officer defendants' unconstitutional conduct. 3. In response to these allegations, I was not the Complex Warden at FCC Beaumont during the time period alleged in the complaint. I had no supervisory authority over the United States Penitentiary (USP Beaumont) at FCC Beaumont. where inmate Johns was housed at the Page I of2 Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 14 of 16 PageID #: 147 time of this incident. I also was not the Acting Warden on June 9,2014. I did not implement any policies, practices, customs, or procedures at USP Beaumont prior to the death of inmate .Iohns. Additionally, I did not direct any staff at USP Beaumont to violate the rights of inmate Johns. I did not have any knowledge of any threats made against inmate Johns, or any plans or information that inmate Johns would be assaulted prior to being informed of the incident after it had occurred that day when I was working as the Warden at the Medium Security Institution at FCC Beaumont. 4. I was not responsible for providing discipline to the staff at USP Beaumont in connection with violations of BOP policy during tl-re time frame at issue. Due to this fact, I was not privy to any alleged policy violations committed by the officer defendants, and I did not acquiesce to the purported unconstitutional conduct alleged in the complaint. I declare under penalty of perjury that the lbregoing is true and correct to the best of my knowledge and beliel Executed on this 9th day of September,2016. Beaumont, Texas Page2 of2 Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 15 of 16 PageID #: 148 Exhibit E Filed Under Seal Case 1:16-cv-00198-MAC Document 13-1 Filed 10/13/16 Page 16 of 16 PageID #: 149 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION BRIANNA JOHNS, et al., § § Plaintiffs, § CIVIL ACTION No. 1:16CV198 § v. § § FRANCSICO LARA, et al., § JUDGE MARCIA A. CRONE § Defendants. § O R D E R On this day came to be heard Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, and having reviewed the same, heard the arguments and objections, if any, this Court finds that the motion should be granted. Therefore, it is ORDERED that Defendant Lara’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment is GRANTED and this lawsuit is dismissed. Case 1:16-cv-00198-MAC Document 13-2 Filed 10/13/16 Page 1 of 1 PageID #: 150