     Case: 13-20101      Document: 00512614124         Page: 1    Date Filed: 04/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20101
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 30, 2014
DWAYNE ALLEN VALENTINE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

VANESSA JONES, Chairman for Classification and Records BOT Warehouse;
GEORGE W. LANG, II, Chief Appeallate Section-State Counsel for Offenders;
MELBA KNOBLOCK, Legal Assistant (SCFO); JOYCE GRIFFIN, Legal
Assistant (SCFO); NENETTE CARTER, Legal Assistant (SCFO); FNU
EDGIN, Legal Assistant (SCFO); DIRECTOR RICK THALER; ANISSA
COMMANDER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:11-CV-586


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Dwayne Valentine, former Texas prisoner # 731947, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that he
was denied due process when he was incarcerated 46 days beyond the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-20101

expiration of his state sentence and that the defendants failed to investigate
the miscalculation of his maximum release date. The district court granted
summary judgment in favor of defendants Rick Thaler, Director of the Texas
Department of Criminal Justice—Correctional Institutions Division (TDCJ-
CID); Vanessa Jones, Chairperson for TDCJ-CID Classification and Records;
and Anissa Commander, a parole officer with the Texas Board of Pardons and
Paroles. The claims against the remaining defendants, all of whom were
employees of State Counsel for Offenders (SCFO), were dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
      The basic facts are not in dispute. In 1996, in Denton County, Texas,
Valentine was sentenced to a 15-year term of imprisonment for a robbery
conviction; the judgment indicated that he would be credited with 506 days
toward the sentence. The following year, the Denton County district court
entered a nunc pro tunc order, crediting Valentine with an additional 102
calendar days of jail time credit. This correction was noted in the TDCJ-CID
records. At various points from 1999 through 2009, Valentine sought the
assistance of the SCFO office, as well as the TDCJ-CID (through its time credit
dispute resolution procedures), to correct an alleged miscalculation of his jail
time credits. Ultimately, on May 5, 2009, the Denton County district court
entered a second nunc pro tunc order, indicating that Valentine was credited
with a total of 698 days of calendar time. Pursuant to this second nunc pro
tunc order, Valentine’s sentence for his robbery conviction expired on May 6,
2009. On June 15, 2009, the TDCJ-CID Classifications and Records Office
received the second nunc pro tunc order and confirmed the veracity of that
order. Valentine was released from TDCJ-CID custody by discharge on June
22, 2009.




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                                  No. 13-20101

      As an initial matter, Valentine fails to raise any argument regarding the
dismissal, on Eleventh Amendment immunity grounds, of any official capacity
claims for monetary damages against the TDCJ-CID Director, Jones, and
Commander.     Accordingly, he has abandoned those claims.          See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      With respect to his individual capacity claims against the TDCJ-CID
Director, Jones, and Commander, Valentine contends that the district court
erred in granting summary judgment in favor of those defendants on the basis
of qualified immunity. We review a grant of summary judgment de novo, using
the same standard as that employed by the district court. Nickell v. Beau View
of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). Although all reasonable factual inferences must be made
in favor of the non-moving party, summary judgment may not be thwarted by
conclusional allegations, unsupported assertions, or presentation of only a
scintilla of evidence. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007).
      “A public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff’s constitutional
rights and (2) the defendant’s actions were objectively unreasonable in light of
clearly established law at the time of the violation.” Porter v. Epps, 659 F.3d
440, 445 (5th Cir. 2011). A right is clearly established if “the contours of [the]
right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2083 (2011) (internal brackets and quotation marks omitted). In
this case, due process concerns arguably are implicated as Valentine was



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incarcerated more than 30 days beyond the expiration of his sentence. See
Porter, 659 F.3d at 445. Nevertheless, Valentine has not shown that the
actions of the TDCJ-CIJ Director, Jones, and Commander were objectively
unreasonable in light of clearly established law and the circumstances that
confronted those defendants. See id.; see also Graham v. Connor, 490 U.S. 386,
396-97 (1989).
      As a supervisory official, the TDCJ-CID Director is only liable under
§ 1983 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, 659 F.3d at 446.
Supervisory officials are not subject to respondeat superior liability under
§ 1983. Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 286
(5th Cir. 2002). Here, the only conduct directly attributable to the TDCJ-CID
Director is his having certified that Valentine’s discharge date was June 22,
2009. This certificate was issued on June 18, 2009, three days after the TDCJ
received the second nunc pro tunc order from the convicting court. Valentine
fails to explain how this prompt response on the part of the TDCJ-CID Director
was the product of deliberate indifference to his right to a timely release or was
otherwise objectively unreasonable. See Porter, 659 F.3d at 446. Further,
while Valentine recites various legal theories upon which a jailer may be liable
for unlawful detention, he does not cite to any policy or procedure that the
TDCJ-CID Director violated, nor does he describe how the time credit
procedural system was ineffective. His pleadings’ failure to allege the specific
factual underpinnings of these legal conclusions is fatal in the face of the
TDCJ-CID Director’s assertion of qualified immunity. See Backe v. LeBlanc,
691 F.3d 645, 648 (5th Cir. 2012).




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      Valentine’s claim against Jones, who reviewed and denied his October
2008 time credit dispute resolution request, was based on his allegations that
she failed to properly investigate the miscalculated sentence and refused to
investigate the Denton County court documents. However, the record reflects
that Jones considered Valentine’s request (which was submitted while the
1997 nunc pro tunc order was facially valid) and properly advised him that,
under Texas law, the maximum release date could not be altered except by a
certified order from the convicting court. See Ex Parte Wickware, 853 S.W.2d
571, 573 (Tex. Crim. App. 1993) (“TDCJ is required to award inmates in its
custody pre-sentence jail time credits as reflected in the judgment.”); Ex Parte
Harvey, 846 S.W.2d 328, 329 (Tex. Crim. App. 1993) (“[O]nly the judge of the
court in which the defendant was convicted shall compute credit for the time
the defendant spent in jail in said cause from the time of his arrest and
confinement until his sentence by the trial court.”).          Similarly, as to
Commander, Valentine alleged that after informing her of the second nunc pro
tunc order, Commander ignored his requests that he was being held beyond
his release date.    To the contrary, however, the documents submitted by
Valentine demonstrate that Commander promptly responded to both of his
I-60 inmate request forms, first advising him that the convicting court had to
advise TDCJ-CID of any changes in the court’s time credit calculation, and
later advising that he would be transferred to a temporary facility and released
within days. Valentine does not explain how these responses were objectively
unreasonable in light of the circumstances that confronted Jones and
Commander at the time. See Graham, 490 U.S. at 396-97.
      As Valentine has pointed to no evidence defeating these defendants’
entitlement to qualified immunity, the district court did not err in granting the




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                                 No. 13-20101

motion for summary judgment in favor of the TDCJ-CID Director, Jones, and
Commander. See Porter, 659 F.3d at 445; Turner, 476 F.3d at 343.
      Next, Valentine asserts that the district court erred in dismissing as
frivolous his claims against the SCFO defendants, whom he contends
miscalculated his release date and ignored his requests for an investigation of
the correct sentence date. Our review is de novo. See Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005) (applying de novo review when the district court
dismisses a claim as frivolous under both § 1915 and § 1915A). A claim is
“frivolous” if it lacks “an arguable basis in law or fact.” Berry v. Brady, 192
F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citation omitted).
As the district court correctly observed, Valentine points to no evidence
supporting his claims that the SCFO defendants miscalculated his sentence in
light of the available information or that they were unresponsive to his
requests.   Rather, the documents submitted by Valentine reflect just the
opposite, i.e., the SCFO defendants reviewed his claims of a calculation error
and promptly responded to his requests. Valentine thus has not shown that
the district court erred in dismissing his claims against the SCFO defendants
as frivolous. See Geiger, 404 F.3d at 373-74.
      In addition, Valentine abandons, by failing to brief, any challenge to the
district court’s dismissal of his claim for punitive damages against the
defendants.   See Yohey, 985 F.2d at 224-25.      Finally, we do not consider
Valentine’s claims, which he raises for the first time on appeal, that the
defendants are liable to him for false imprisonment and for damages under
Heck v. Humphrey, 512 U.S. 477 (1994), as a result of his allegedly
unconstitutional imprisonment. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
      AFFIRMED.



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