IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20101

Summary Calendar

DWAYNE ALLEN VALENTINE,

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.

United States Court of Appeals

Fifth Circuit

FILED

April 30, 2014

Lyle W. Cayce

Clerk

 

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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 (TDCJCID); 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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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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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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