United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-40219 

Summary Calendar 

____________ 

Bobby Perez, 

Plaintiff—Appellant, 

versus

Brad Livingston, in his individual capacity; Kevin Moore, 

Warden; Dr. Jessica Khan; Jane Does; John Doe; Sara 

Hancock; Bryan Collier, Executive Director, Texas Department of 

Criminal Justice, in his individual and official capacity; University of 

Texas Medical Branch; Texas Department of Criminal 

Justice; Bobby Lumpkin, Director, Texas Department of Criminal 

Justice, Correctional Institutions Division, in his official capacity, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 9:19-CV-172 

______________________________ 

Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam:*

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

November 29, 2023 

Lyle W. Cayce 

Clerk 

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2 

Bobby Perez, Texas prisoner # 01117750, appeals the district court’s 

grant of the defendants’ motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(1) and (6) and the concomitant dismissal of his 42 U.S.C. 

§ 1983 suit. Review is de novo. Smith v. Hood, 900 F.3d 180, 184 (5th Cir. 

2018). Dismissal under Rule 12(b)(1) is proper when a claim is barred by 

immunity. See id. at 184-85. Dismissal under Rule 12(b)(6) is proper when a 

complaint fails “to state a claim upon which relief can be granted.” Fed. R. 

Civ. P. 12(b)(6). Perez shows no error in connection with the district 

court’s judgment. 

Because the record supports Perez’s assertion that he sued the 

defendants in their official capacities only,1

 we agree that the district court 

should not have considered personal capacity claims and qualified 

immunity;2

 we thus decline to review the district court’s determinations as 

to these issues. Perez cites nothing showing that the defendants waived their 

Eleventh Amendment immunity with respect to § 1983 suits for money 

damages and thus shows no error in the district court’s dismissal of his § 1983 

claims for pecuniary relief. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 

66, 71 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998); Lewis v. 

UTMB, 665 F.3d 625, 630 (5th Cir. 2011). 

Similarly, Perez shows no error in connection with the district court’s 

conclusion that he had not shown actionable claims under the Americans 

_____________________ 

1

 On appeal, Perez asserts that the district court “misconstrued” his complaint as 

raising claims against the defendants in their personal capacities and clarifies that 

“Defendants have been sued in their official capacities and are therefore representing their 

respective state agencies.” Similarly, in his “Amended Supplemental Complaint” Perez 

specifies in several places that he is suing the defendants in their official capacities. 

2 See Hernandez v. Spencer, 780 F.2d 504, 506 (5th Cir. 1986) (noting that a plaintiff 

“is the master of his pleadings and, subject to the requirements of Rule 11, . . . may include 

in them whatever claims he wishes”). 

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3 

with Disabilities Act and the Rehabilitation Act because those laws do not set 

forth standards of care for prisoners, nor are they infringed by a prison’s not 

providing medical treatment to prisoners. See Hale v. Harrison Cty. Bd. of 

Sup’rs, 8 F.4th 399, 404 n.† (5th Cir. 2021); Frame v. City of Arlington, 657 

F.3d 215, 223-24 (5th Cir. 2011) (en banc); Pace v. Bogalusa City Sch. Bd., 403 

F.3d 272, 287-88 (5th Cir. 2005). Insofar as he contends that the district 

court erred by rejecting some of his claims under the doctrine of res judicata, 

he is mistaken, as the record shows that none of his claims were dismissed 

pursuant to this theory. Finally, because he has not shown that his case 

presents extraordinary circumstances, we will not appoint counsel in this 

appeal. See Delaughter v. Woodall, 909 F.3d 130, 140-41 (5th Cir. 2018). The 

judgment of the district court is AFFIRMED, and the motion for appointed 

counsel is DENIED. 

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