     Case: 09-20508     Document: 00511144952          Page: 1    Date Filed: 06/17/2010




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

                                                  FILED
                                                                            June 17, 2010

                                       No. 09-20508                         Lyle W. Cayce
                                                                                 Clerk

MARY WALKER, Individually and as a Personal Representative of the
Estate of Michael Dewayne Walker; MICHAEL SPENCER, Individually and
as a Personal Representative of the Estate of Michael Dewayne Walker,

                                                   Plaintiffs - Appellees
v.

BRAD LIVINGSTON, Executive Director of Texas Department of Criminal
Justice; JASON HEATON, Warden of Ferguson Unit of Texas Department of
Criminal Justice; RALPH BALES, Safe prison Program Manager of Texas
Department of Criminal Justice; MICHAEL UPSHAW, Warden of Ferguson
Unit; JASON PFLEIDERER, prison guard/employee of Ferguson Unit;
LEONARD LASKOWSKI, prison guard/employee/picket of Ferguson Unit,

                                                   Defendants - Appellants




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:08-CV-530


Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In this case, the plaintiffs, individually and as representatives of the estate
of Michael Walker, deceased, bring multiple claims under 42 U.S.C. § 1983 and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20508

supplemental survival and wrongful death claims under Texas state law against
multiple defendants, in both their official and individual capacities.                 The
plaintiffs’ claims arise entirely from the assault and death of Michael Walker,
a prisoner in the Ferguson Penitentiary, a Texas correctional facility, at the
hands of his cellmate. The defendants are either guards, past wardens of the
prison, or supervisory officials in charge of statewide correctional policy. The
defendants present an interlocutory appeal for review based on the denial of
their motion for summary judgment on Eleventh Amendment immunity and
qualified immunity grounds.
I. Sovereign Immunity
       The defendants may assert any immunity that the governmental entity
possesses against any claim against the defendants in their official capacities.
Hafer v. Melo, 112 S. Ct. 358, 362 (1991). Under the Eleventh Amendment, each
state is a sovereign entity that is not amenable to suit of an individual without
its consent.1 Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1122 (1996).
Congress may abrogate the State’s sovereign immunity when it (a) unequivocally
expresses its intent to abrogate the immunity and (b) acts pursuant to a valid
exercise of power. Id. at 1123. Section 1983 does not, explicitly or by its clear
language, indicate on its face an intent to abrogate the immunity of the states.
Quern v. Jordan, 99 S. Ct. 1139, 1147 (1979). However, the Ex parte Young
doctrine allows federal jurisdiction over a suit against a state official in certain
situations where that suit seeks only prospective injunctive relief in order to end
a continuing violation of federal law. Seminole Tribe of Fla., 116 S. Ct. at 1132
(citing Ex parte Young, 28 S. Ct. 441 (1908)). A section 1983 claim for damages,
on the other hand, cannot overcome the Eleventh Amendment’s barrier even


       1
         The denial of Eleventh Amendment immunity is reviewed de novo, as a question of
law, like other questions of subject-matter jurisdiction. Martinez v. Tex. Dep’t of Criminal
Justice, 300 F.3d 567, 573 (5th Cir. 2002).

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with the help of Ex parte Young. Green v. Mansour, 106 S. Ct. 423, 426 (1985).
Declaratory relief is within Young’s purview, but only when violations of federal
law are threatened or ongoing. Id. at 428.
      Under this line of cases, we hold that the district court erred in reinstating
the plaintiffs claims for monetary damages against the defendants in their
official capacity.   Ex parte Young allows, under certain circumstances, the
plaintiff to seek injunctive relief under section 1983. However, it is clear that
the plaintiffs lack standing to assert claims for injunctive or declaratory relief.
See City of Los Angeles v. Lyons, 103 S. Ct. 1660, 1667 (1983).
      The plaintiffs argue that Texas has waived sovereign immunity via the
Texas Tort Claims Act.      See Seminole Tribe of Fla., 116 S. Ct. at 1122.
Specifically, the plaintiffs rely on T EX. C IV. P RAC. & R EM. C ODE § 101.021(2),
which allows an individual to hold a governmental unit liable for “personal
injury and death so caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to
the claimant according to Texas law.” However, this Court has already decided
that the Texas Tort Claims Act does not waive Eleventh Amendment immunity
in federal court. Sherwinski v. Peterson, 98 F.3d 849, 851–52 (5th Cir. 1996)
(relying on language in the Tort Claims Act which requires claims to be brought
in state court). Therefore, the plaintiffs do not succeed on this argument either.
See Pennhurst State Sch. & Hosp. v. Halderman, 104 S. Ct. 900, 911 (1984)
(suits based on state law in federal court seeking relief, whether prospective or
retrospective, do not meet the Ex parte Young exception to Eleventh Amendment
immunity). The official capacity damages claims are ordered dismissed with
prejudice.
II. Qualified Immunity
      The Eleventh Amendment does not grant immunity when a section 1983
claim is asserted against a state official sued in his or her personal capacity.

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Hafer v. Melo, 112 S. Ct. 358, 364 (1991). Personal capacity defendant officials,
unlike those sued in their official capacities, may assert common law personal
immunity defenses such as qualified immunity. Id. at 362. Qualified immunity
protects officials from suit if their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.2 Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). The facts alleged,
taken in the light most favorable to the party asserting the injury, must show
that the officer’s conduct violated a constitutional right. Price v. Roark, 256 F.3d
364, 369 (5th Cir. 2001).        Also, the constitutional right must be clearly
established such that it would be clear to a reasonable officer that his or her
conduct was unlawful. Id. The Court may address either prong first. Pearson,
129 S. Ct. at 818. In this case, the district court granted additional discovery to
determine whether the plaintiffs had a viable claim for qualified immunity.
      As an initial matter, plaintiffs assert a claim based on the state-created
danger theory of liability. However, this theory is not clearly established law
within this circuit such that a § 1983 claim based on this theory could be
sustained.    Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002).              Next, the
plaintiffs’ complaint asserts claims under the Fourth, Eighth and Fourteenth
Amendments to the Constitution. Clearly established law requires that when
a constitutional claim is covered by a specific constitutional provision, the claim
must be analyzed under the standard appropriate to that provision, and not
under the general rubric of due process. United States v. Lanier, 117 S. Ct. 1219,
1228 n.7 (1997).     Consequently, the district court erred in denying summary
judgment on the plaintiffs’ Fourth and Fourteenth Amendment claims. See Petta
v. Rivera, 143 F.3d 895, 900–01 (5th Cir. 1998) (en banc).



      2
        This Court reviews denials of qualified immunity de novo. Price v. Roark, 256 F.3d
364, 368 (5th Cir. 2001).

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       As to the plaintiffs’ Eighth Amendment claim, a convicted state prisoner’s
rights spring from the protection against cruel and unusual punishment. Hare
v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Under the
Eighth Amendment, liability for inaction attaches only when a prison official’s
failure to act amounts to deliberate indifference to the prisoner’s rights. Id. at
640. This is a subjective test. Id. at 643. Under this standard, we cannot say
that the plaintiff properly alleged that the supervisory defendants were actually
subjectively aware of the danger. Defendant Jason Heaton was the former
warden of the Ferguson Unit. Defendant Brad Livingston was the Executive
Director of the Texas Department of Criminal Justice at the time of Walker’s
death. Defendant Ralph Bales was the manager of the Texas Department of
Criminal Justice’s Safe Prisons Program. Walker’s cellmate attacked and killed
him the first night Walker was placed in a cell with him. The plaintiffs have not
alleged any facts or any sort of knowledge on the part of these defendants that
would suggest any reason to believe there was any likelihood of actual subjective
awareness on their respective parts of the specific risk to Walker on that night.
At the very least, the district court abused its discretion in allowing further
discovery based on the plaintiffs’ conclusory allegations that do not amount to
or adequately reflect likelihood of actual subjective awareness or deliberate
indifference. See Bush v. Rauch, 38 F.3d 842, 849 (6th Cir. 1994) (“A district
court's decision on whether to grant additional discovery under Rule 56(f) before
consideration of a summary judgment motion is reviewed for an abuse of
discretion. Absolute judicial immunity, as well as qualified immunity, refers to
protection from suit and not simply the assessment of liability. . . . [S]ummary
judgment was properly entered without allowing further discovery.”).3


       3
         Similarly, plaintiffs’ lack of standing to assert declaratory or injunctive relief against
any of the defendants precludes such claims from affording any basis for continued discovery
as against claims of sovereign immunity and/or qualified immunity.

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                                  No. 09-20508

      The damages claims against defendants Heaton, Livingston, and Bales in
their personal, individual capacities are ordered dismissed with prejudice.
      That leaves defendant Michael Upshaw, the warden of the Ferguson unit
on the night of Walker’s death, who was at home at the time and was called to
the scene shortly after Walker’s death was discovered, defendant Leonard
Laskowski, the officer at the picket booth on the floor of Walker’s cell, and
defendant Jason Pfleiderer, the rover charged with inspecting the various floors
including Walker’s. We do not believe the district court abused its discretion in
allowing discovery to go forward as to the personal liability of defendants
Upshaw, Laskowski and Pfleiderer, and for those three individuals to be deposed
to determine whether they had an actual subjective awareness of the danger to
Walker and if so, whether they were deliberately indifferent to that danger of
which they were actually subjectively aware; we do, however, vacate the district
court’s order in so far as it denies those three last mentioned defendants’ motion
for summary judgment so that the district court may revisit the matter after
plaintiffs have conducted appropriate discovery.
         REVERSED, in part; VACATED and REMANDED, in part.




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