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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DAMIEN BERNARD,

Plaintiff,

v. 

WILLIAM C. RODGERS, CAPTAIN J. 

CARPER,

Defendants.

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CIVIL ACTION NO. 6:23-CV-00303-JCB

REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE

Before the court is Defendants’ William Rodgers and Jennifer Carper1(collectively 

“Defendants”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 

11.) Plaintiff filed a response in opposition (Doc. No. 15). This case was designated to the 

undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) to handle all pretrial matters in 

this case, including dispositive motions. (Doc. No. 3.) For the reasons stated herein, the court 

RECOMMENDS that Defendants’ motion to dismiss (Doc. No. 11) be GRANTED-IN-PART

and DENIED-IN-PART as set forth herein. 

BACKGROUND

Plaintiff filed this action against Defendants on June 16, 2023, for alleged violations of 

constitutional rights pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) On September 11, 2023, Plaintiff 

filed an amended complaint, which is the operative complaint in this matter. (Doc. No. 9.) 

1 The motion was originally brought by Defendants Bryan Collier, John Ragsdale, William Rodgers, Jennifer Carper, 

and the Texas Department of Criminal Justice (“TDCJ”), but Defendants TDCJ, Brian Collier, Warden J. Garcia, and 

Major John Ragsdale were subsequently dismissed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. 

No. 13.) 

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Specifically, Plaintiff alleges that on June 18, 2021, when he was an inmate confined at 

TDCJ’s Coffield Unit, he received a disciplinary write up for allegedly threatening an officer. Id.

at ¶ 9. As a result, Plaintiff was placed in a “P-1” legal cage for 11 hours and was then transported 

to the “P-2” side of the front office. Id. at ¶¶ 9–10. It was at this time that Plaintiff alleges that 

Defendant Sgt. William Rodgers “walked up to Plaintiff and knowing and intentionally slammed 

him into an unconscious state,” while Plaintiff was handcuffed behind his back. Id. at ¶¶ 11–12. 

Plaintiff alleges that the assault was related to his being written up and that he sustained injuries 

that he will have to deal with for the rest of his life. Id. at ¶¶ 12–13. Specifically, Plaintiff alleges 

that he suffered a “dislocated shoulder, lacerations, and face and teeth fractures that required him 

to be transported to Palestine Regional Hospital as well as to Hospital Galveston for surgery.” Id.

at ¶ 18. Plaintiff alleges that Defendant Rodgers did not report his use of force and tried to cover 

up the injuries by just putting Plaintiff back in his cell. Id. at ¶¶ 19–20. Plaintiff alleges that a nurse 

refused to do so because she felt that Plaintiff needed outside attention, which further frustrated 

Defendant Rodgers. Id. at ¶ 20. Plaintiff alleges that an ambulance was called once Defendant 

Rodgers left. Id. at ¶ 21. 

Plaintiff alleges that on July 20, 2021, he attempted to file a Life in Danger (“LID”) 

complaint due to the June 18, 2021 assault by Defendant Rodgers and the continued harassment 

he received from other guards and inmates. Id. at ¶ 32. Plaintiff alleges that he attempted to have 

Defendant Captain Jennifer Carper file the LID complaint. Id. at ¶ 34. Plaintiff alleges that 

Defendant Carper had been investigating the use of force incident against Plaintiff by Defendant 

Rodgers prior to Plaintiff trying to file a LID complaint. Id. at ¶ 38. Plaintiff alleges that Defendant 

Carper had Plaintiff start writing the LID complaint but then told him he needed to write certain 

things and admit to certain things so as not to paint a perfect picture of himself. Id. at ¶ 35. Plaintiff 

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alleges that when he did not write the statement the way that Defendant Carper had wanted him 

to, she proceeded to “throw his statement on the desk” and told him to go back to the house and 

that he could not file a LID complaint. Id. at ¶ 36. Plaintiff states that Defendant Carper told 

Plaintiff that a LID complaint could only be filed against other inmates and that she would not 

allow him to file one against a fellow officer. Id. at ¶ 37. 

Based upon these factual allegations Plaintiff alleges that Defendant William Rodgers 

violated Plaintiff’s Eighth Amendment right to be free of cruel and unusual punishment by using 

excessive force. (Doc. No. 9, at 8–10.) Plaintiff alleges that Defendant Jennifer Carper violated his 

Eighth Amendment rights through deliberate indifference, as well as his Fourteenth Amendment 

rights. Id. at 10–13. Plaintiff alleges that both Defendants Rodgers and Carper violated his 

constitutional rights by engaging in a conspiracy. Id. at 13–15. Plaintiff seeks both monetary 

damages and injunctive relief. Id. at 15–17. 

LEGAL STANDARD

Motions to dismiss under Rule 12(b)(6) for failure to state a claim “are viewed with 

disfavor and are rarely granted.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th 

Cir. 2005); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The court utilizes a 

“two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 

(2009). First, the court identifies and excludes legal conclusions that “are not entitled to the 

assumption of truth.” Id. Second, the court considers the remaining “well-pleaded factual 

allegations.” Id. The court must accept as true all facts alleged in a plaintiff’s complaint, and the 

court views the facts in the light most favorable to the plaintiff. In re Katrina Canal Breaches 

Litig., 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff’s complaint survives a defendant’s Rule 

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12(b)(6) motion to dismiss if it includes facts sufficient “to raise a right to relief above the 

speculative level.” Id. (quotations and citations omitted). 

In other words, the court must consider whether a plaintiff has pleaded “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). “‘[D]etailed factual allegations’” are not required. Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555). Nevertheless, a complaint must allege “sufficient factual matter, 

accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 

570). “A claim has facial plausibility when the pleaded factual content allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Id. at 679. 

DISCUSSION 

As discussed, because several moving Defendants have since been dismissed from this 

action, the court addresses the motion as it pertains to the two remaining Defendants: Defendant 

Rodgers and Defendant Carper. Defendants’ motion first requests that the court dismiss Plaintiff’s 

claims against Defendant Carper because Plaintiff does not allege specific facts that entitle him to 

relief, namely because he has not alleged an injury. (Doc. No. 4, at 5–9.) Defendants further argue 

that the statements in the amended complaint related to Defendant Carper being deliberately 

indifferent to his needs do not relate back to the original complaint and are therefore barred by the 

statute of limitations. Id. at 10. Plaintiff similarly argues that any conspiracy claims were not set 

forth in Plaintiff’s original complaint and therefore do not relate back under Fed. R. Civ. P. 

15(c)(1)(B). Id. Plaintiff responds that his claims against Defendant Carper state a claim because 

his mental anguish and stress for the fear of his life was caused by the actual physical injury that 

had occurred on June 18, 2021. (Doc. No. 15, at 5.) Plaintiff alleges that the allegations regarding 

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Defendant Carper sufficiently relate back because his original complaint mentioned the filing of a 

LID complaint and that it must be done by a Captain. Id. at 2. Plaintiff does not address the 

conspiracy claims. 

I. Claims Against Defendant Captain Carper

As discussed, the parties initially dispute whether the claims against Defendant Carper are 

time barred. This dispute turns on whether the claims set forth in the amended complaint 

sufficiently relate back to the original pleading, which was timely filed for statutory purposes.

a. Statute of Limitations 

Plaintiff’s § 1983 claim against Defendant Carper arises from her alleged July 20, 2021 

refusal to file a LID complaint. There is no federal statute of limitations for 42 U.S.C. § 1983 

actions; the relevant statute of the forum state furnishes the limitations period—but federal law 

determines the date the accrual commences. See Owens v. Okure, 488 U.S. 235 (1989). The statute 

of limitations in Texas for § 1983 actions is two years, as claims under § 1983 are governed by 

Texas’s two-year, personal-injury limitations statute. See Tex. Civ. Prac. & Rem. Code § 16.003(a); 

Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987) (“Civil rights actions brought under 42 

U.S.C. §§ 1981, 1983, 1985, and 1988 are deemed analogous to Texas tort actions, and therefore, 

the applicable limitations period is ... two years.”); see also Wade v. City of Dallas, 2018 WL 

3966358 *1–2 (N.D. Tex. July 16, 2018) (citing and quoting Helton, 832 F.3d at 334). 

Rule 15(c)(1) of the Federal Rules of Civil Procedure allows a party to amend a pleading 

to add a claim beyond the expiration of the statute of limitations so long as the amendment relates 

back to the date of the original pleading. Fed.R.Civ.P. 15(c)(1). An amendment to a pleading relates 

back when (1) “the law that provides the applicable statute of limitations allows relation back,” or 

(2) “the amendment asserts a claim or defense that arose out of the conduct, transaction, or 

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occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1). 

In other words, a statute of limitations bar can be avoided if the amended claim “arose out of the 

conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” 

Fed.R.Civ.P. 15(c)(1)(B); Mayle v. Felix, 545 U.S. 644, 659 (2005). The amendment may invoke 

a legal theory and rely on facts not asserted in the original complaint. Mayle, 545 U.S. at 659. 

“[R]elation-back doctrine is controlled by . . . the underlying facts upon which the cause of action 

is based.” Watkins v. Lujan, 922 F.2d 261, 265 (5th Cir. 1991). Where an amended claim relies on 

the same operative facts as that which the cause of action was based, the amended complaint relates 

back, defeating a statute of limitations bar. Id. 

Here, Plaintiff’s amended complaint relates back to the conduct set out in the original 

complaint that was asserted within the statutory period on June 16, 2023. (Doc. No. 1.) As 

discussed above, Plaintiff’s amended complaint alleges that on July 20, 2021, he attempted to file 

a LID complaint due to the June 18, 2021 assault and the continued harassment that he received 

from guards and other inmates, but that Defendant Carper refused to file the LID complaint. Id. at 

¶¶ 32–36. In the original complaint, Plaintiff listed Defendant Carper as a Defendant but did not 

go into specific detailed factual allegations regarding Defendant Carper’s alleged conduct. Plaintiff 

did, however, allege that “[o]n July 20, 2021, Plaintiff attempted to file a Life in Danger (“LID”) 

complaint due to the June 18, 2021, assault and the continued harassment he received from guards 

and other inmates.” (Doc. No. 1, at ¶ 29.) Plaintiff’s allegations further state that he was denied 

filing of the LID because he “was told that only a Captain can file a LID.” Id. at ¶ 30. These are 

the same set of facts upon which Plaintiff’s current amended complaint sets forth a claim against 

Defendant Carper. Moreover, given that the factual allegations in the original complaint included

the involvement of a Captain related to the denial of the LID complaint, Defendant Carper would 

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have reasonably understood that these factual allegations were directed at her. Because the claims 

against Defendant Carper in the amended complaint arise out of the same factual occurrence 

attempted to be set forth in the timely-filed original complaint, the claims against Defendant Carper 

are not barred by the statue of limitations. 

b. Sufficiency of the Pleadings 

Having determined that the claims against Defendant Carper in the amended complaint are 

not barred by the statute of limitations, the court turns to the challenges related to the sufficiency 

of the allegations. In this regard, Defendants move to dismiss the claims against Defendant Carper 

because Defendants contend that verbal harassment and/or threats are not sufficient to state claim 

for a constitutional violation. (Doc. No. 11, at 3–4.) In this regard, Defendants appear to construe 

Plaintiff’s claim against Defendant Carper as an alleged violation of the Eighth Amendment based 

upon the words Carper and Plaintiff exchanged while he was trying to file his LID complaint. The 

court would agree that such language alone is insufficient to state a constitutional violation, 

Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002); Robertson v. City of Plano, Tex., 70 F.3d 

21, 24 (5th Cir. 1995), but as Plaintiff points out in her response, this does not appear to be the 

basis of her alleged claim against Defendant Carper. (Doc. No. 15, at 5–6.) Although Plaintiff cites 

to the prior physical attack on June 18, 2021 that caused his subsequent emotional injuries, he does 

not plainly state how these allegations relate to a claim asserted against Defendant Carper based 

upon the conduct alleged. At best, it could be deduced that Plaintiff either attempted to assert a 

claim for deliberate indifference against Defendant Carper for failing to file the LID complaint, or 

that Plaintiff intended to assert a due process violation against Carper on the same grounds. Neither 

claim passes scrutiny under 12(b)(6). 

i. Eighth Amendment Violation 

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To the extent that Plaintiff has attempted to allege that Defendant Carper’s refusal to file 

the LID complaint was a failure to protect, such a claim fails on the pleadings. The Supreme Court 

has explained that:

[A] prison official cannot be held liable under the Eighth Amendment for 

denying an inmate humane conditions of confinement unless the official knows 

of and disregards an excessive risk to inmate health or safety; the official must 

both be aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and he must also draw the inference. ...

But an official’s failure to alleviate a significant risk which he should have 

perceived, but did not, while no cause for commendation, cannot under our 

cases be condemned as the infliction of punishment.

Farmer v. Brennan, 511 U.S. 825, 837–38 (1994); see Reeves v. Collins, 27 F.3d 174, 176 (5th 

Cir. 1994). Thus, to state a constitutional claim for failure to protect, a plaintiff must show: (1) that 

he was subjected to conditions posing a substantial risk of serious harm; and (2) prison officials 

were deliberately indifferent to his need for protection. Id.; Neals v. Norwood, 59 F.3d 530, 533 

(5th Cir. 1995). Deliberate indifference “is an extremely high standard to meet.” Domino v. Texas 

Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Crucially, in order to show that 

prison officials were deliberately indifferent to a prisoner’s need for protection, the prisoner must 

prove “that the official actually knew of a substantial risk of serious harm and failed to act.” 

Adeleke v. Heaton, 352 F. App’x 904, 907 (5th Cir. 2009) (per curiam) (unpublished) (emphasis 

added). Moreover, “mere negligence in failing to protect a prisoner from assault does not establish 

a constitutional violation.” See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).

Here, Plaintiff fails to plead sufficient facts to allege a constitutional violation against 

Defendant Carper for failure to protect. Plaintiff pleads that Defendant Carper was investigating 

the use of force incident by Rodgers on June 18, 2021, but Plaintiff fails to allege any facts 

regarding any risk of serious harm that Defendant Rodgers continued to pose in July 2021, let 

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alone one that Defendant Carper was aware of. Indeed, Plaintiff does not indicate that he had any 

further involvement with Defendant Rodgers after he returned from the hospital as he was placed 

in the G-wing. (Doc. No. 9, at ¶¶ 22–24.) Instead, Plaintiff’s allegations focus on verbal threats 

from Lieutenant Clark and Officer Scott during this time period. Id. at ¶¶ 28–31. Nowhere in his 

allegations does Plaintiff state that Defendant Carper was made aware of these ongoing threats 

from other officers; rather, Plaintiff states only that Defendant Carper tried to direct the way he 

wrote the statement and ultimately told him that she would not allow him to file one against another 

officer. Id. at ¶¶ 35–37. These allegations, construed liberally, do not allow for the inference that 

Defendant Carper was aware of substantial risk of serious harm and failed to act and therefore do 

not state a claim for a violation of the Eighth Amendment. 

ii. Fourteenth Amendment Violation 

Plaintiff’s amended complaint might also be read to assert that Defendant Carper is liable 

for failing to fully investigate or punish Defendant Rodgers for his actions. But there is no 

constitutional right to have another individual investigated, disciplined, or prosecuted, even when 

the parties involved are inmates and correctional officers. Oliver v. Jackson Corr. Ctr., No. 3:12-

CV-2660, 2013 WL 596155, at *3 (W.D. La. Jan. 22, 2013), report and recommendation adopted, 

No. 3:12-CV-2660, 2013 WL 596153 (W.D. La. Feb. 15, 2013) (citing Linda R.S. v. Richard D., 

410 U.S. 614, 619 (1973), and United States v. Batchelder, 442 U.S. 114, 124 (1979)); see also 

Williams v. Washington, No. 96 C 0704, 1997 WL 201579, at *3 (N.D. Ill. Apr. 16, 1997) 

(“Williams had no legal right to have the correctional officers punished, or to have an investigation 

conducted.”). Accordingly, any claim premised on the failure to take some action necessary to 

facilitate such discipline or prosecution fails to state a claim for a constitutional violation.

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For these reasons, Defendants’ motion should be granted with respect to the Eighth 

Amendment and Fourteenth Amendment claims brought against Defendant Carper and those 

claims should be dismissed with prejudice. 

II. Conspiracy Claims Against Defendants Carper and Rodgers

Defendants also argue that Plaintiff’s conspiracy claims must be dismissed against all 

Defendants because the allegations are conclusory. (Doc. No. 11, at 7–9.) Plaintiff does not respond 

to this argument in his response to Defendants’ motion. (Doc. No. 15.) Local Rule CV-7(d) 

provides that “[a] party’s failure to oppose a motion in the manner prescribed herein creates a 

presumption that the party does not controvert the facts set out by movant and has no evidence to 

offer in opposition to the motion.” L.R. CV-7(d). As Plaintiff has not filed a response in opposition 

to Defendants’ request to dismiss the conspiracy claims, the court presumes that Plaintiff has no 

opposition to the dismissal of those claims. 

Moreover, reviewing the allegations, Plaintiff’s allegations fail to state a claim for an 

alleged conspiracy. The Fifth Circuit has stated that specific facts must be pleaded when a 

conspiracy is alleged. Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986). In pleading these specific 

facts, Plaintiff must allege the operative facts of the alleged conspiracy. Lynch v. Cannatella, 810 

F.2d 1363, 1369–70 (5th Cir. 1987). “Bald allegations that a conspiracy existed are insufficient.” 

Id. Under § 1983, a claim for conspiracy must allege (1) an agreement between private and public 

defendants to commit an illegal act, and (2) a constitutional deprivation. Cinel v. Connick, 15 F.3d 

1338, 1343 (5th Cir. 1994). Here, Plaintiff alleges that Defendant Carper acted in conspiracy with 

Defendant Rodgers with respect to the excessive force used by attempting to cover up the use of 

force—namely through the refusal to allow the filing of the LID complaint. See Doc. No. 9, at ¶¶ 

83–85. But these allegations are insufficient to establish any agreement between Defendant Carper 

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and Rodgers to commit a constitutional violation as Defendant Carper’s alleged refusal to file the 

LID complaint happened a month after the alleged use of force by Defendant Rodgers. Id. at ¶ 32. 

As such, Plaintiff’s conspiracy claims against Defendant Carper and Defendant Rodgers should be 

dismissed with prejudice. 

CONCLUSION

For these reasons, the court RECOMMENDS that Defendants’ motion (Doc. No. 11) be 

GRANTED with respect to Defendants’ request to dismiss Plaintiff’s Eighth Amendment and 

Fourteenth Amendment claims as to Defendant Captain Carper. The court RECOMMENDS that 

the motion (Doc. No. 11) be GRANTED as to Plaintiff’s conspiracy claims asserted against 

Defendants Carper and Rodgers. These claims should all be dismissed with prejudice. The court 

RECOMMENDS that Defendants’ motion (Doc. No. 11) be DENIED as moot with respect to the 

other grounds raised in this motion that are related to Defendants that have since been dismissed

from this case. This recommendation would result in the dismissal of all claims against Defendant 

Carper; the sole remaining claim in this case would be the use of force claim against Defendant 

Rodgers. 

Within fourteen days after receipt of the Magistrate Judge’s Report, any party may serve 

and file written objections to the findings and recommendations contained in the Report. A party’s 

failure to file written objections to the findings, conclusions, and recommendations contained in 

this Report within fourteen days after being served with a copy shall bar that party from de novo

review by the district judge of those findings, conclusions, and recommendations and, except on 

grounds of plain error, from appellate review of unobjected-to factual findings and legal 

conclusions accepted and adopted by the district court. Douglass v. United States Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996).

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So ORDERED and SIGNED this 19th day of April, 2024.

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