     Case: 10-41193     Document: 00511797482         Page: 1     Date Filed: 03/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 22, 2012
                                     No. 10-41193
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DARYL L. DAVIS,

                                                  Plaintiff-Appellant

v.

MICHAEL R. MCDUFFIE,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:07-CV-19


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        A jury found that Michael R. McDuffie violated the constitutional rights
of Daryl L. Davis, Texas prisoner # 802738, and awarded Davis compensatory
and punitive damages.           Davis appeals the district court’s denial of his
postjudgment motion for a writ of execution to order the State of Texas to pay
the damage award on behalf of McDuffie, its employee. Assuming arguendo that
Davis may appeal the denial of such a motion, he is not entitled to relief.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-41193    Document: 00511797482      Page: 2    Date Filed: 03/22/2012

                                  No. 10-41193

      On appeal, Davis asserts that the Texas Safe Prisons Plan, enacted to
protect vulnerable prisoners from assaults by other prisoners or guards,
constituted a waiver of the State’s sovereign immunity because the plan does not
state that it does not waive the State’s defenses and immunities and because it
refers to statutes such as 42 U.S.C. 1983, which invites prisoners to file suits.
Because Davis did not raise this theory of relief in the district court, we need not
address it on appeal. Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999). Moreover, the Safe Prisons Plan does not waive sovereign immunity
because it does not expressly and unequivocally state that such a waiver has
occurred. Sossamon v. Texas, 131 S. Ct. 1651, 1661 (2011).
      Davis also asserts that he may obtain payment from the State pursuant
to §§ 104.001-104.003 of the Texas Civil Practices and Remedies Code, which
deal with the indemnification of state employees. Chapter 104 of the Code does
not waive the defenses and immunities available to the State of Texas. TEX. CIV.
PRAC. & REM. CODE ANN. § 104.008; Perry v. Texas A & I Univ., 737 S.W.2d 106,
108 (Tex. App. 1987). Although Davis did not bring a cause of action against the
State and obtained judgment against McDuffie, his request that the State be
ordered to pay the judgment is in the nature of asking that the State be held
jointly and severally liable with McDuffie, which the indemnification statutes
do not authorize. See Perry, 737 S.W.2d at 108. The indemnification statutes
exist “primarily for the benefit of employees and offices of the State,” not for the
benefit of civil rights plaintiffs. Id. Thus, the district court did not err in
concluding that the Texas indemnification statues did not authorize Davis to
obtain a writ of execution against the State for the money judgment awarded
against McDuffie.      Consequently, the judgment of the district court is
AFFIRMED.




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