IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20508

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 17, 2010

Lyle W. Cayce

Clerk

 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. Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1122 (1996).

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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

The denial of Eleventh Amendment immunity is reviewed de novo, as a question of 1

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 TEX. CIV. PRAC. & REM. CODE § 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. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). The facts alleged,

2

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).

 This Court reviews denials of qualified immunity de novo. Price v. Roark, 256 F.3d 2

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

Similarly, plaintiffs’ lack of standing to assert declaratory or injunctive relief against

3

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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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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