United States Court of Appeals

for the Fifth Circuit

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No. 21-50909

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Hubert Edward Castro, 

Plaintiff—Appellant,

versus

Warden Darren Wallace, TDCJ Hughes Unit, in his Individual and 

Official Capacity; Assistant Warden Toby Powell, TDCJ Hughes 

Unit, in his Individual and Official Capacity; Chimdi Akwitti; 

Beverly Dawn Smith; Captain Annette Martinez, TDCJ 

Hughes Unit, in her Individual and Official Capacity; Counsel 

Substitute K. Brase, TDCJ Hughes Unit, in his Individual and 

Official Capacity; Counsel Substitute Jane #2 Doe, TDCJ 

Hughes Unit, in her Individual and Official Capacity; Counsel 

Substitute Jane Doe #3, TDCJ Hughes Unit, in her Individual and 

Official Capacity; Director’s Review Committee -

Huntsville, Individual and Official Capacity; Nichole McEntire; 

Diana Duff; Veronyka Kiss, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 6:20-CV-1116

______________________________

Before Richman, Chief Judge, and Stewart and Dennis, Circuit 

Judges: 

United States Court of Appeals

Fifth Circuit

FILED

May 5, 2023

Lyle W. Cayce

Clerk

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Per Curiam:

*

Hubert Edward Castro, Texas prisoner #1049656, appeals the 

dismissal of his pro se 42 U.S.C. § 1983 civil rights complaint. For the 

following reasons, we AFFIRMin part, VACATEin part, and REMAND.

I. 

Castro filed his complaint in 2020, arguing that the defendants 

violated his constitutional rights by filing false disciplinary charges against 

him and restricting his contact with his wife. Specifically, he alleged that in a 

2013 Inter-Office Communication (IOC), Darren Wallace, then the Stiles 

Unit assistant warden, recommended restricting Castro’s communications 

with his wife, Mrs. Cash-Castro, a former prison employee. The IOC 

indicated that Castro was a member of the Mexican Mafia and that CashCastro had provided Castro with a cellular telephone. Castro’s complaint 

further alleged that, in 2019, the defendants initiated a false disciplinary case 

against him based on conduct occurring in the Hughes Unit. Castro alleged 

that prison officials overheard him and his wife discussing the 2013 IOC and 

the possibility of initiating legal action against Wallace, who had become the 

Hughes Unit warden. Castro alleges that in retaliation for discussing this 

possible legal action, one of the defendants, Beverly Dawn Smith, falsely 

charged him in a disciplinary case with planning to inflict harm on Wallace 

and to smuggle contraband drugs (K2) into the prison with his wife’s help. 

Castro alleged that Smith based these false charges on alleged recordings or 

transcripts of conversations between him and his wife. 

Castro also alleged that certain defendants, including Chimdi Akwitti, 

improperly handled the grievances he filed challenging his disciplinary 

conviction for the false charges. Further, he alleges that K. Brase and the Jane 

Doe defendants, who acted as his counsel substitute during the disciplinary 

_____________________

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

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proceedings, violated his constitutional rights by failing to secure either a 

recording or a transcript of the alleged conversations between Castro and his 

wife. Castro sought compensatory and punitive damages, declaratory relief, 

and injunctive relief. After Castro filed a more definite statement at the 

request of the district court, defendants moved to dismiss the case pursuant 

to Federal Rule of Civil Procedure 12(b). The district court granted the 

motion to dismiss, and Castro appeals. 

II. 

We review a dismissal of a complaint pursuant to Federal Rules of 

Civil Procedure 12(b)(1) and 12(b)(6) de novo. See Smith v. Hood, 900 F.3d 

180, 184 (5th Cir. 2018). 

III. 

A.

An individual state officer sued in his official capacity for § 1983 

money damages is entitled to immunity. See Oliver v. Scott, 276 F.3d 736, 742 

(5th Cir. 2002). Dismissal of such claims is proper under Rule 12(b)(1) and is 

reviewed de novo. See Smith, 900 F.3d at 184. Claims for declaratory and 

prospective injunctive relief against such state officers in their official 

capacities are permissible. Aguilar v. Texas Dep’t of Crim. Just., 160 F.3d 

1052, 1054 (5th Cir. 1998). Contrary to Castro’s arguments, the district court 

properly dismissed his claims for damages against the defendants in their 

official capacities and recognized that the immunity doctrine did not bar his 

remaining claims. See Oliver, 276 F.3d at 742. 

B.

The district court also dismissed Castro’s claims against K. Brase and 

the Jane Doe defendants, who acted as Castro’s counsel substitutes during 

the disciplinary proceedings. The court determined that the defendants were 

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not state actors for purposes of § 1983 liability, and Castro had not alleged a 

conspiracy to commit an illegal act and violate his constitutional rights 

between the defendants and a state actor. 

To state a § 1983 claim against his counsel substitutes, Castro was 

required to “(1) allege a violation of a right secured by the Constitution or 

laws of the United States and (2) demonstrate that the alleged deprivation 

was committed by a person acting under color of state law.” Pratt v. Harris 

Cnty., 822 F.3d 174, 180 (5th Cir. 2016) (internal quotation marks and 

citation omitted). In Banuelos v. McFarland, we analogized the role of a 

counsel substitute to that of a public defender and noted that a public 

defender does not act under color of state law when acting as an advocate. 41 

F.3d 232, 234 (5th Cir. 1995) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318-

19 (1981)). We therefore held that the actions of counsel substitute in a prison 

disciplinary hearing likewise are not actions under color of state law. Id. As 

alleged in Castro’s complaint, K. Brase and the Jane Doe defendants served 

as counsel substitutes, acting as Castro’s advocates during the disciplinary 

hearing, and are therefore not state actors. See id. The district court did not 

err in dismissing Castro’s claims against these defendants. 

C.

The district court also rejected Castro’s claim against Akwitti, noting 

that supervisory officials cannot be held vicariously liable in § 1983 cases; 

rather, they only may be held liable if they are personally involved in the 

alleged constitutional violation. Here, Castro has not alleged that Akwitti was 

personally involved aside from his routine handling of a grievance, and Castro 

had no constitutional right to have his grievance resolved in a favorable 

manner. Further, even if a prison official overturned the disciplinary 

conviction after Castro filed a Step 2 grievance, Castro’s argument that he 

was denied a meaningful prison grievance proceeding by Akwitti’s denial of 

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his Step 1 grievance was properly dismissed because any due process error in 

his disciplinary case was cured when the case was overturned through the 

administrative appeal process. See Ard v. Leblanc, 404 F. App’x 928, 929 (5th 

Cir. 2010); Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 

D.

For the first time in his reply brief, Castro challenges the district 

court’s dismissal of his retaliation claim. This court does not consider issues 

raised for the first time in a reply brief, and we therefore affirm the district 

court’s dismissal of Castro’s retaliation claim. See Morin v. Moore, 309 F.3d 

316, 328 (5th Cir. 2002). 

E.

In rejecting Castro’s claim that the defendants violated his 

constitutional rights by restricting contact with his wife, the district court 

held that the prison had a legitimate interest in maintaining security that 

justified such a restriction, given that Castro’s wife had smuggled an illegal 

cell phone into the prison in 2013, Castro and his wife sought to smuggle K2 

into the prison in 2019, and they sought to harm Warden Wallace in 2019. 

Although the 2019 disciplinary conviction was overturned, the district court 

concluded that the conviction was overturned for procedural reasons, which 

did not eliminate the security risk posed by Castro. 

Our review of the district court’s Rule 12(b)(6) dismissal is de novo. 

See Smith, 900 F.3d at 184. We, like the district court, must accept all wellpleaded facts as true and view those facts in the light most favorable to the 

plaintiff. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 

2019). Dismissal “is warranted if the complaint does not contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on 

its face.” Id. at 734 (internal quotation marks and citation omitted). 

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Prisoners retain First Amendment free speech rights that are 

consistent “with the legitimate penological objectives of the corrections 

system.” Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (internal 

quotation marks and citation omitted). Restrictions on those rights cannot be 

greater than necessary to protect the correctional interests involved. Id. at 

822. “[P]risoners have no absolute constitutional right to visitation,” but 

“[e]ven so, limitations of visitation may be imposed only if they are necessary 

to meet legitimate penological objectives.” Lynott v. Henderson, 610 F.2d 

340, 342-43 (5th Cir. 1980); see Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 

1999).

To support the conclusion that there was a reasonable penological 

interest at stake, the district court pointed to the 2013 IOC that Castro and 

his wife smuggled an illegal cell phone into the prison and the 2019 

disciplinary case that claimed Castro sought to smuggle K2 into the prison 

and to harm Wallace. As to the 2013 IOC, however, Castro alleged in his 

complaint and in his response to the district court’s request for a more 

definite statement that the IOC contained false charges and that the 

defendants permitted him to resume contact with his wife five years after the 

2013 IOC. Viewing the facts as true and in the light most favorable to Castro, 

see Walker, 938 F.3d at 735, the defendants no longer considered the 

smuggled telephone a security concern in 2019, because he was permitted to 

resume contact with her. 

The remaining two grounds supporting the district court’s decision—

Castro’s supposed attempts to smuggle K2 into the prison and to harm 

Wallace with his wife’s help—are belied by Castro’s attachment to his 

complaint, which shows that these grounds were the basis of the 2019 

disciplinary conviction, which was subsequently overturned. Castro alleged 

in his complaint that he and his wife never discussed smuggling K2 into the 

prison, nor did they discuss harming Wallace, but instead had discussed filing 

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a lawsuit against Wallace, and the defendants made false accusations against 

him in the disciplinary proceeding in retaliation for his intent to file a lawsuit 

against Wallace. Although the district court concluded that the disciplinary 

conviction was overturned for procedural reasons, which could mean that the 

grounds underlying the conviction remained valid security concerns, the 

grievance report provides no express reason for the decision to overturn the 

conviction. It is true that Castro argued that his procedural due process rights 

were violated during the disciplinary proceedings, and it is therefore possible 

that the grievance officer’s decision to overturn the conviction was based on 

these procedural reasons. But construing the facts in Castro’s favor, we 

cannot conclude that the conviction was certainly overturned for procedural 

reasons, and the district court therefore erred in not construing the facts in 

the light most favorable to Castro. 

Given Castro’s allegations that the defendants permitted him to 

resume contact with his wife a few years after the 2013 IOC, that his 2019 

disciplinary conviction was overturned, and that the charges against him 

were false, and the absence of facts showing that the conviction was 

overturned for procedural reasons, we conclude that the district court did not 

accept Castro’s allegations as true and view them in the light most favorable 

to Castro. See Walker, 938 F.3d at 735. Accordingly, we vacate and remand

as to the district court’s ruling on Castro’s First Amendment claim. As it 

appears that Castro is no longer housed in either the Stiles or Hughes Units 

where he alleged that the 2013 and 2019 incidents occurred, the district court 

will be in a better position to determine the effect of his transfer on remand. 

See Cooper v. Sheriff, Lubbock Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991).

IV.

Accordingly, the district court’s judgment is AFFIRMED in part, 

VACATED in part, and REMANDED for further proceedings consistent 

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with this opinion. Castro’s motion for the appointment of counsel is 

DENIED.

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