1

As the pleadings and Woods’s summary-judgment evidence all refer to this

defendant as “Merry Sivadge,” the Court will also call her Sivadge.

2

Although Woods filed an amended more definite statement, (docket no. 40),

that document included information related to claims that have since been

dismissed, and is thus not considered relevant to the remaining claims.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MICHAEL JAY WOODS, §

§

VS. § CIVIL ACTION NO.4:04-CV-405-Y

§

KAREN CHAPMAN,Parole Supervisor,§

TDCJ-Parole Division, et al. §

 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 

Now pending before the Court is the motion for summary

judgment of defendants Merry Sivadge Miller,1 William King,

Juanetta Hayes, Latita Murff, Ayodele Fasoro, Thomas Duffe, and

Allen Kigigha. The case was stayed pending Woods’s release from

prison, but after it was re-opened, Woods was permitted to file a

response to the summary-judgment motion. 

Plaintiff Woods’s pleadings that are subject to the Court’s

review are the second amended complaint (SAC) (docket no. 17) and

his reply under Federal Rule of Civil Procedure 7 (docket no. 75).2

The remaining claims before the Court involve a series of actions

by the individual defendants, each of whom is an employee/official

of the Texas Department of Criminal Justice--Parole Division

(“TDCJ--PD”) associated with the issuance of parole-violator

warrants against Woods. The defendants’ collective motion for

summary judgment claims the defense of qualified immunity, and

 

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2

asserts that there is no genuine issue of material fact and that

they are entitled to qualified immunity as a matter of law. After

review and consideration of the motion for summary judgment, the

response, and the applicable law, the Court concludes that the

motion should be granted, for the reasons stated in the motion and

as set forth herein. 

Summary-Judgment Evidence

Defendants submitted no evidence in support of their motion

for summary judgment. Plaintiff Woods attached to his response an

appendix containing the following documents: May 23, 2002, TDCJ--PD

report (1); March 1, 2005, TDCJ--PD Policy and Operating Procedure

for “Processing Violations of the Rules and Conditions of

Release”(5); May 23, 2002, White Settlement police department

narrative (13); June 7, 2002, TDCJ--PD Interoffice Memorandum re:

notice of arrest of Woods (14); August 14, 2002, verified statement

of Angela Michelle Johnson (15); July 2, 2002, Texas Board of

Pardons and Paroles (“TBPP”) Revocation Hearing Report (17); July

18, 2002, TDCJ--PD Notice of Special Condition (no contact

w/Johnson)(22); July 18, 2002, TDCJ--PD Notice of Special Condition

(electronic monitoring)(23); November 26, 2004, verified statement

of John Miller (24); February 24, 2006, “Affidavit” of Michael

Woods (26); May 1, 2002, Apartment Lease between Woods and Johnson

and Windmill Terrace Apartments (31); August 13, 2002, TDCJ--PD

parole-violation report (37); September 4, 2002, TBPP, Revocation

 

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3

Although none of these documents is presented as a certified copy or

otherwise authenticated sufficiently to be considered as sufficient summary

judgment evidence over objection, Defendants have not objected to or contested

them. Thus, for the purposes of this motion, the Court will consider these

documents, notwithstanding the lack of authentication. The Court notes, however,

that Michael Woods’s own February 24, 2006, “affidavit,” is not sworn to in the

presence of an authorized officer, nor are the statements contained therein

expressly made “under penalty of perjury” and verified as “true and correct” to

satisfy the exception for unsworn declarations under 28 U.S.C. § 1746. Thus,

Woods’s affidavit must be disregarded as summary-judgment proof. See Nissho-Iwai

American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1989); see also Yett v.

Peters, No.4:08-CV-0343-A, 2008 WL 2815587, at *1 (N.D.Tex. July 7, 2008).

4

See Nissho-Iwai American Corp., 845 F.2d at 1306. The Court notes that

Woods’s Second Amended Complaint, like his February 24, 2006, affidavit, does not

recite that the statements therein are made “under penalty of perjury” and

verified as “true and correct.” Thus, this pleading is not considered sufficient

summary-judgment evidence.

5

FED. R. CIV. P. 56(c).

3

Hearing Report (41); March 15, 2007, TDCJ--PD Policy and Operating

Procedure for “Electronic Monitoring Program” (46); letter from

TDCJ Assistant Regional Director Smith to Woods (47); September 13,

2002, letter from State Representative Terri Hodge to Woods (49);

September 13, 2002, TBPP Revocation report (50); October 23, 2002,

TBPP Revocation Hearing report (51); and September 18, 2002, TDCJ--

PD violation report (58).3 Also, as Woods expressly declared that

his August 7, 2006, reply was true and correct under penalty of

perjury, this Court is required to consider this pleading as

competent summary-judgment evidence.4

 

Summary-Judgment Standard

Summary judgment is appropriate when the record establishes

"that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law."5 The party

 

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6

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v.

Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).

7 Id., at 322-23; Anderson, 477 U.S. at 257.

8

Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)(noting that only

genuine and substantial issues may subject a defendant to the burden of

trial)(quoting Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945).

9

See Anderson, 477 U.S. at 248.

10See National Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d

698, 712-13 (5th Cir. 1994).

11See Id. at 713.

4

moving for summary judgment has the initial burden of informing the

Court of the basis for his motion and producing evidence that tends

to show that no genuine issue as to any material fact exists and

that he is entitled to judgment as a matter of law.6

 Once the

moving party has made such a showing, the non-moving party may not

rest upon mere allegations or denials in the pleadings, but must

set forth specific facts showing the existence of a genuine issue

for trial.7 Whether an issue is “genuine” is a determination of

whether it is “real and substantial, as opposed to merely formal,

pretended, or a sham.”8 A fact is “material” if its resolution in

favor of one party might affect the outcome of the action under

governing law.9 No genuine issue of material fact exists if no

rational trier of fact could find for the nonmoving party based on

the evidence presented.10 The Court must consider all evidence in

the light most favorable to the nonmoving party.11

 

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12Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

13533 U.S. 194 (2001).

14Id. at 201.

15129 S.Ct. 808 (2009). 

16Id. at 818. 

5

Analysis

Qualified immunity shields government officials performing

discretionary tasks from liability for civil damages if their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.12 In Saucier v. Katz,13 the Supreme Court mandated a two-step

sequence to resolve a qualified-immunity claim: first, a court

determines whether the facts alleged or shown state a violation of

a constitutional right; second, a court must decide whether the

right was clearly established at the time of the defendant’s

conduct.14 In the recent case Pearson v. Callahan,15 however, the

Supreme Court retreated from this sequential approach: 

while the sequence set forth [in Saucier] is often

appropriate, it should no longer be regarded as

mandatory. The judges of the district courts and the

courts of appals should be permitted to exercise their

sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at

hand.16

Thus, under Pearson, this Court may resolve the qualifiedimmunity issue through analysis under the second step. But because

 

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17See generally Pearson, 129 S.Ct. at 821 (“Our decision does not prevent

the lower courts from following the Saucier procedure; it simply recognizes that

those courts should have the discretion to decide whether that procedure is

worthwhile in particular cases.")

18See Jones v. State, 119 S.W. 3d 766, 786 (Tex.Crim App. 2003)

(“[W]e have held in the context of a parole violation that a

judgment coupled with a finding by the court that there is a “reason

to believe” that the defendant has violated the conditions of his

parole will constitute sufficient probable cause to support the

issuance of a parole violation warrant”), cert den’d, 542 U.S. 905

(2004)

(citing Garrett v. State, 791 S.W.2d 137, 140 (Tex. Crim. App. 1990)). 

6

the Court previously denied a motion to dismiss on this issue, the

Court will address and analyze the first step of the qualifiedimmunity inquiry.17

Sivadge Miller, King, Hayes, Murff and Duffe

The bulk of Woods’s remaining allegations relate to these

listed defendants, and arise from his belief that parole violator

warrants were issued on three different occasions without the

defendants’ having sufficient “reason to believe” a violation had

occurred. Woods does not contest the defendants’ assertion that

parole officials were required to have only a “reason to believe”

that he had violated the conditions of his parole to constitute

sufficient probable cause to issue a parole-violation warrant.18

Although the Court previously found that Woods recited facts in his

pleadings sufficient to state a claim that defendants violated his

right not to be subjected to the issuance of a parole warrant

 

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7

without sufficient reasons in support, the summary-judgment

evidence supplied by Woods shows otherwise. 

With regard to the May 23, 2002, decision to issue a paroleviolation warrant, Woods provided the “Narrative” of White

Settlement police officer J. Kavanaugh, in which he recites that

Angela Johnson “stated that her ex-boyfriend Michael J. Woods had

called her and said ‘that he was going to be on the News tonight,’

because he was going to kill her and her mother.’” (Woods App. 13.)

Kavanaugh also noted that Johnson wanted him to convey this

information to Woods’s parole officer Jaunetta Hayes, which

Kavanuagh did. (Woods App. 13.) Woods also provided a copy of the

May 23, 2002, violation report prepared by Hayes, in which Hayes

noted that she had talked to Johnson, and that Johnson reported

that Woods “has made terroristic threats on her life and family.”

Hayes noted both in her narrative and in a special comments

section, that Johnson would not submit an affidavit because she was

afraid of Woods. (Woods App. 2-3.) The document also shows that

Hayes, unit supervisor Latitia Murff, and program administrator T.

Duffe all agreed that a warrant should issue. (Woods App. 3-4.)

Angela Johnson stood by her allegations that Woods threatened her

during the resulting parole-revocation hearing, and the hearing

officer noted she was granted “fearful witness status.” (Woods App.

 

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8

19.) Although Johnson later claimed in a statement that her

allegations were untrue, she acknowledged that such allegations

resulted in the warrant’s issuing for Woods’s arrest. (Woods App.

15.) 

A review of this evidence provided by Plaintiff establishes

that the defendants had a reason to believe that Woods had violated

the conditions of his parole when they were notified of his threat

to Johnson. That the defendants requested the issuance of a warrant

without an affidavit from Johnson was justified due to Johnson’s

fear of providing such an affidavit. Further, the fact that the

White Settlement police department did not arrest Woods is not

controlling, as the defendants were obligated to investigate all

suspected violations under a standard of whether there was a reason

to believe a violation occurred. Woods has not shown that there is

a genuine issue of material fact as to whether the issuance of the

warrant resulting from the May 23, 2002, events violated a

constitutional right.

Although Woods’s parole was not revoked as a result of the May

23, 2002, incident, his continued supervision was modified such

that he was subjected to the special conditions of having no

contact with Angela Johnson and of electronic monitoring. (Woods

App. 21-23.) Woods objected to these new conditions, but signed an

 

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9

instrument indicating that he understood and agreed to them on July

18, 2002. (Woods App. 22-24.) In spite of this, Woods met with

Angela Johnson on August 10, 2002. Woods did so, even though he

acknowledged to Johnson it would be a violation of his parole.

(Woods App. 15-16, 25.) Johnson then informed parole officer Merry

Sivadge of Woods’s contact with her and, when Sivadge questioned

Woods on August 13, 2002, he told her that Johnson had been staying

with him since August 10. (Woods App. 38.) As a result, Sivadge,

unit supervisor Bill King, and program administrator K. Sheick all

recommended that a warrant issue. (Woods App. 37-40.) 

Again, the evidence supplied by Woods confirms that he

violated the special conditions of his parole by having contact

with Angela Johnson on August 10 and after. Without question, the

defendants had a reasonable basis to believe that he had violated

a condition in order to justify the issuance of a parole-violation

warrant. Woods continues to challenge whether the no-contact-withJohnson condition was authorized. But such argument has nothing to

do with the claims remaining against the summary-judgment

defendants. They did not make the decision to impose the nocontact-with-Johnson condition. As such, the Court concludes that

there is no genuine issue of material fact and the defendants are

entitled to judgment as a matter of law with regard to Woods’s

 

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10

claims arising from the issuance of a parole-violator warrant after

the August 10-13, 2002, events. 

After another parole-revocation hearing, the Texas Board of

Pardons and Paroles chose to again continue Woods on supervision,

and determined that the no-contact-with-Johnson condition should be

removed. As a result, Woods was released from the Tarrant County

jail on September 17, 2002. On September 18, Sivadge, unit

supervisor King, and parole supervisor Chapman again issued a

parole violation report on the basis that Woods had failed to

report to their office within 24 hours of release as instructed.

(Woods App. 58-60.) Woods reported to the Fort Worth parole office

at 4:45 p.m. on September 18, and, reviewing in the light most

favorable to Woods, he was released from the jail on September 17,

2002, about 6:30 p.m. (Woods App. 25, 55.) Sivadge believed, and

another official testified at a later revocation hearing, that

Woods had been released at 4:22 p.m. Thus, Sivadge, King and

Chapman had sufficient reason to believe that Woods had failed to

timely report on September 18, and they are entitled to judgment as

a matter of law on this claim. 

Plaintiff alleges that the actions analyzed above were taken

in retaliation for his conduct in testifying before the Texas

legislature in 2001 regarding criticism of the Texas Department of

 

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19See Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003); see also Jones

v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

20Greninger, 188 F.3d at 325 (citing Tighe v. Wall, 100 F.3d 41, 43 (5th

Cir. 1996)(inmate’s claims dismissed for failure to demonstrate violation of a

constitutional right) and Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)

(“to state a claim, an inmate must allege the violation of a specific

constitutional right”)).

21Woods, 60 F.3d at 1166. 

11

Criminal Justice. In order to state a valid claim under § 1983 on

the basis of retaliation, a prisoner must allege (1) a specific

constitutional right,(2) the defendant’s intent to retaliate

against the prisoner for his or her exercise of that right, (3) a

retaliatory adverse act, and (4) causation.19 With regard to the

first element, the inmate must point to a specific constitutional

right that has been violated, or the claim will fail.20 Because the

Court has concluded that Woods has not show that genuine issues of

material fact exist on whether the complained-of issuance of

parole-violation warrants violates a constitutional right, he has

also not set forth a genuine issue of material fact on this

required element of a retaliation claim.

Furthermore, a retaliation claim requires the inmate plaintiff

to “establish that but for the retaliatory motive the complained of

incident . . . would not have occurred.21 Furthermore, “mere

conclusionary allegations of retaliation will not withstand a

summary judgment challenge. The inmate must produce direct evidence

 

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22Id. (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)(other

citations omitted). 

23Id.

24In Counts 6 and 7 of his second amended complaint, Woods alleges that

these defendants’ actions were taken with knowledge that he was, when arrested

on the complained-of parole-violation warrants, in treatment for drug

addiction/chemical dependency and that their actions were done with deliberate

indifference to his serious medical needs in violation of the Eighth Amendment.

Woods has come forward with no evidence to support these allegations. Thus,

defendants are also entitled to judgment as a matter of law on such claims.

12

of motivation or, the more probable scenario, ‘allege a chronology

of events from which retaliation may plausibly be inferred.’”22

Evidence that action of the official is legitimate is probative and

potent summary-judgment evidence.23

As noted in the discussions above, the complained-of actions

of defendants each were taken based upon legitimate factual bases

independent of any possible retaliatory motive. Furthermore, Woods

has failed to produce any direct evidence of motivation on the part

of the defendants to retaliate and has produced no evidence that

but for any such motive, the actions related to his parole

violations would not have occurred. Thus, Woods has not shown a

genuine issue of material fact on his retaliation claims against

Sivadge, King, Hayes, Murff, and Duffe, and they are entitled to

judgment.24

Fasoro and Kigigha 

In June of 2003, after Woods’s parole had been revoked, and he

 

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13

had served a period of time in an intermediate sanction facility,

he was again released to parole supervision by the Fort Worth

office through the person of parole officer Ayodele Fasoro. Woods

alleges that when he raised challenges to his being continued on

electronic monitoring beyond the applicable time, Fasoro informed

him that he had failed a drug test and tested positive for cocaine,

which resulted in Woods’s then being subjected to an additional

period of electronic monitoring. (SAC 360-369.) Woods alleges it

was defendant Allen Kigigha who informed him that the positive drug

test would result in a new electronic-monitoring period. (SAC 367)

Woods acknowledges that late in July 2003, he removed the

electronic-monitoring ankle bracelet and fled Texas to Illinois.

Woods’s claims against Fasoro and Kigigha are based only upon

their notification to him of the results of a drug test. Although

he contends the positive drug test was false, he has provided no

evidence in response to these defendants’ motion showing they

retaliated against him, nor has he provided any evidence of

causation. He has made no showing of any genuine issue of material

fact concerning whether Fasoro or Kigigha violated a constitutional

right. 

Thus, the Court concludes that as to all summary-judgment

defendants, there is no genuine issue of material fact as to the

 

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25Saucier, 533 U.S. at 202.

26Quinn v. Roach, 2009 WL 1181072, at *4,n 2 (5th Cir. May 4, 2009)(citing

Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998)(other citations

omitted).

27Quinn, 2009 WL 1181072, at *4, n 2.

14

violation of Woods’s constitutional rights. Although the Court need

not reach the second step of the qualified-immunity analysis, it

will briefly note the standards in concluding that Woods has not

satisfied the second prong either.

In Saucier, the Supreme Court explained the “relevant,

dispositive inquiry in determining whether a right is clearly

established [for the second step] is whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation

he confronted.”25 The Fifth Circuit has sometimes characterized the

second prong as divided into two separate and distinct inquires:

whether the right was clearly established and whether an officer’s

conduct was objectively reasonable.26 But, recently the court of

appeals determined “[t]he Supreme Court’s recent case law makes it

clear that these inquires are more appropriately viewed not as

separate and distinct, but as two sides of the same analytical

coin.”27

In order for a right to be “clearly established” the contours

of the right “must be sufficiently clear that a reasonable official

 

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28Hope v. Pelzer, 536 U.S. 730, 739 (2002)(quoting Anderson, 483 U.S. at

640); see also Saucier, 533 U.S. at 202 (“[T]he right the official is alleged

to have violated must have been clearly established in a more particularized, and

hence more relevant, sense”)(quoting Anderson, 483 U.S. at 640).

29Saucier, 533 U.S. at 202. 

15

would understand that what he is doing violates that right. This

is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been

held unlawful . . . but it is to say that in light of pre-existing

law the unlawfulness must be apparent.”28 If the law does not put

the defendant on notice that their conduct would clearly be

unlawful, summary judgment based on qualified immunity is

appropriate.29

Applying these standards to the record of this case, Woods has

not come forward with evidence to show that any of the summaryjudgment defendants violated a right that was clearly established

at the time of their conduct. 

Therefore, the January 15, 2008, motion for summary judgment

of defendants Merry Sivadge Miller, William King, Juanetta Hayes,

Latita Murff, Ayodele Fasoro, Thomas Duffe, and Allen Kigigha

(docket no. 116) is GRANTED.

Plaintiff shall take nothing on his remaining claims against

defendants Merry Sivadge Miller, William King, Juanetta Hayes,

Latita Murff, Ayodele Fasoro, Thomas Duffe and Allen Kigigha, and

 

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16

such claims are DISMISSED WITH PREJUDICE.

SIGNED June 10, 2009.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

 

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