     Case: 18-50728      Document: 00515442113         Page: 1    Date Filed: 06/05/2020




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


                                      No. 18-50728
                                                                                FILED
                                                                             June 5, 2020
                                                                           Lyle W. Cayce
CLARENCE D. BROWN,                                                              Clerk

              Plaintiff - Appellant

v.

MARSHA MCLANE, Executive Director, OVSOM; DIANA LEMON, In Her
Official and Individual Capacity as Program Specialist/Case Manager
OVSOM; BRIAN COSTELLO, In His Official and Individual Capacity as
President, Avalon Correctional Services, Incorporated; OFFICE OF
VIOLENT SEX OFFENDER MANAGEMENT; AVALON CORRECTIONAL
SERVICES, INCORPORATED; CARLOS MORALES, In His Official and
Individual Capacity as Facility Director; ALLISON TAYLOR,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:13-CV-17


Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       We affirm the district court’s judgment dismissing Brown’s claims.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50728
        In Brown v. Taylor, 677 F. App’x 924 (5th Cir. 2017), this court vacated
the district court’s dismissal of plaintiff Clarence Brown’s complaint and
remanded for further proceedings. On remand, the district court allowed
Brown to file a second amended complaint, but only as to his individual
capacity damages claims. 1 Defendants moved to dismiss Brown’s claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court
dismissed Brown’s claims with prejudice. It held that he had failed to state a
claim for any constitutional violations and that his Texas statutory claims were
moot.
        In his brief before this court, Brown does not challenge the dismissal of
his claims against the Texas Office of Violent Sex Offender Management,
Diana Lemon, Brian Costello, or Carlos Morales. Brown has thus forfeited
these issues, and we affirm the dismissals of all claims against these
defendants.
        In this appeal, then, only two defendants remain: Allison Taylor (in her
individual capacity) and Avalon Correctional Services, Incorporated. Brown
presses due-process claims under 42 U.S.C. § 1983 for alleged denial of medical
care and unlawful confinement, and state-law claims under Texas Health &
Safety Code § 841.081 for Taylor and Avalon’s alleged “fail[ure] to provide a
genuine Outpatient Treatment and Supervision Program.” 2




        1 The district court dismissed Brown’s “official capacity claims and claims for
declaratory and injunctive relief” with prejudice. This is why Brown’s second amended
complaint named defendants in their individual capacities only and sought only damages.
        2 Brown maintains that he also sued Taylor in her official capacity and that Marsha

McLane, Taylor’s successor, was automatically substituted to defend those claims. But Brown
cannot recover against McLane. His federal constitutional claims for damages against
McLane in her official capacity would be barred by the Eleventh Amendment, as would his
state-law claims, regardless of the form of relief sought. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 106, 117 (1984).
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                                       No. 18-50728
       First, Brown argues that the district court erred by analyzing his
constitutional conditions-of-confinement claims under the Eighth Amendment
standard. Brown is correct on this point. The district court should not have
looked to the Eight Amendment’s prohibition on cruel and unusual
punishment. As a civil committee, Brown cannot lawfully be punished at all.
Rather, his conditions-of-confinement claims arise under the Due Process
Clause of the Fourteenth Amendment.
       This error, however, was harmless. The district court’s dismissal did not
turn on whether the Eighth Amendment prohibited certain conditions of
confinement. Rather, the court dismissed the claims against Taylor and Avalon
because Brown failed to allege sufficient facts to show their involvement in any
alleged constitutional violations. Brown has never alleged facts establishing
Taylor’s personal involvement in his conditions of confinement. Thus, we
affirm the dismissal of Brown’s individual-capacity claims against Taylor for
essentially the same reasons that the district court articulated. Regarding the
claims again Avalon, Brown has not disputed Avalon’s argument that § 1983
imposes no vicarious liability on it for its employees’ actions. 3 Brown never
identifies the relevant policymaker at Avalon, what the alleged policies were,
or how they led to the conditions of confinement he challenges. So we likewise
affirm the district court’s dismissal of the constitutional claims against Avalon.
       We also affirm the dismissal of Brown’s state-law claims, but for
different reasons than the district court articulated. The district court held
that the 2015 amendments to Texas Health & Safety Code § 841.081 mooted
Brown’s claims. But Brown’s claims are for damages, not prospective injunctive



       3Our circuit has not decided whether private corporations—unlike municipal ones—
acting under color of state law can be held vicariously liable under § 1983 for their employees’
unconstitutional actions. Neither do we decide this question now. By failing to respond to
Avalon’s argument that it cannot be vicariously liable, Brown has conceded the point.
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                                 No. 18-50728
relief, so they are not moot. However, Brown has never responded to
defendants’ dispositive argument that Texas Health & Safety Code § 841.081
lacks a private right of action for damages. Section 1983 creates no such
remedy for violations of state law. Scott v. Fiesta Auto Ctr. of San Antonio, 273
F.3d 1095 (5th Cir. 2001) (“A violation of state law is not cognizable under
§ 1983.”). And Brown has pointed to no Texas statute that does so either.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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