* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41090

Summary Calendar

JERMAINE DEMOND NORMAN

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL

DIVISION

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:06-CV-403

Before KING, GARWOOD and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jermaine Demond Norman,Texas prisoner # 1160833, appeals the district

court’s order granting the defendant Texas Department of Criminal Justice’s

(TDCJ) motion for summary judgment and dismissing Norman’s complaint

against TDCJ asserting claims for damages under the American with

Disabilities Act (ADA) and the Rehabilitation Act (RA).

United States Court of Appeals

Fifth Circuit

F I L E D

September 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-41090

2

In 1987, the Social Security Administration classified Norman as disabled

due to psychotic disorders. In 2004, Norman was injured when he tripped on

a crack at the prison basketball court in Tennessee Colony, Texas. Through a

committee created by the state legislature, the TDCJ contracts out its medical

services to the University of Texas Medical Branch and the Texas Tech

University Health Sciences Center. Allegedly due to a delay in medical

treatment, Norman suffered permanent nerve damage to his leg.

Approximately four and a half months after the initial injury, Norman

underwent surgery on his leg. Norman was required to use crutches thereafter,

and he claims that he was further endangered when he was forced to maintain

his crutches within narrow designated traffic lanes painted in the prison

hallways. Additionally, some of Norman’s personal property was destroyed

after prison officials refused to grant him a “medical box,” which would have

allowed him to store his personal items at ground level, in lieu of a standardissue “property box,” which Norman claims was too high for him to reach with

his injured leg. Norman asserts that these were discriminatory acts leveled

against him due to his mental and physical disabilities.

Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). “[T]he party moving for summary

judgment must demonstrate the absence of a genuine issue of material fact, but

need not negate the elements of the nonmovant's case.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks

and citation omitted). The burden then shifts to the nonmovant to set forth

specific facts showing the existence of a genuine issue for trial. FED. R. CIV P.

56(e). The nonmovant cannot satisfy his summary judgment burden with

conclusory allegations, unsubstantiated assertions, or only a scintilla of

evidence. Little, 37 F.3d at 1075. “A plaintiff asserting a private cause of action
No. 07-41090

3

for violations of the ADA or the RA may only recover compensatory damages

upon a showing of intentional discrimination.” Delano-Pyle v. Victoria County,

Texas, 302 F.3d 567, 574 (5th Cir. 2002). 

Norman argues thatthe district court erred in finding thatthe TDCJ was

not responsible for the health care provided by university employees. The

affidavit of Dr. Kelley provided by the TDCJ in support of its motion for

summary judgment reflected that the medical employees acted as independent

contractors, that TDCJ was not responsible for the daily medical operations at

the prison, and that neither the TDCJ nor any of its employees had any

supervisory or enforcement authority over the university health care staff.

Norman has not provided any evidence to rebut that statement. However, even

assuming arguendo thatthe TDCJ was responsible for the acts ofthe university

medical staff, Norman has not provided any evidence showing that the alleged

delay in his medical care and the denial of a medical property box was the

result of intentional discrimination based on his mental or physical disability.

Thus, Norman has failed to show that he is entitled to relief for the acts and

omissions of the university employees under the ADA or the RA. See 42 U.S.C.

§ 12101(b)(1); 29 U.S.C. § 794.

Norman also argues that the TDCJ is liable under the ADA and RA

because it failed to maintain the basketball court on which Norman was

injured. Public entities are required to “maintain in operable working condition

those features of facilities and equipment that are required to be readily

accessible to and usable by persons with disabilities.” 28 C.F.R. § 35.133.

Norman has not provided any authority showing that a basketball court is a

required facility that must be readily accessible to disabled persons.

Furthermore, Norman has not shown that the TDCJ failed to maintain

the condition of the basketball court because the TDCJ intentionally

discriminated against mentally disabled inmates who would be using the court.

Nor has Norman provided evidence of disparate treatment by showing that non-
No. 07-41090

4

disabled inmates had access to a properly maintained basketball court. The

district court did not err in granting the TDCJ’s motion for summary judgment

on this claim.

Norman argues that the lines painted in the hallway of the prison to

designate traffic paths reflect retaliation against disabled inmates. The TDCJ

provided an affidavit explaining the reason for the creation of the traffic path

and also stating that accommodations had been made for disabled inmates

using crutches and other devices. Norman has not rebutted this evidence and

has not produced any specific evidence showing that the lines are drawn for

discriminatory purposes or as form of retaliation against disabled inmates. The

district court did not err in granting the TDCJ’s motion for summary judgment

on this claim.

Norman also contends that the Parole Division of the TDCJ and the

Board of Pardons and Parole are one entity and, thus, the TDCJ is responsible

for the Board’s alleged incorrect assessment of Norman’s parole eligibility. The

Texas Board of Pardons andParole is a separate entity from the Parole Division

of the Texas Department of Corrections, and each entity has different

responsibilities under the Government Code. TEX. GOVT. CODE ANN. § 491.001.

The Board of Pardons and Parole is responsible for determining which inmates

are to be released on parole or mandatory supervision. TEX. GOVT. CODE. ANN.

§ 508.0441(a)(1). The Pardons and Parole Division of the TDCJ is a different

entity that is responsible for supervising and reintegrating felons into society.

TEX. GOVT. CODE ANN. § 493.005. Because neither the TDCJ nor its parole

division has any responsibility for determining an inmate’s parole or mandatory

supervision eligibility or his right to be released, Norman has no cause of action

against the TDCJ for any parole or mandatory supervision release decisions.

Furthermore, Norman filed documents with his pleadings that reflect that

the Board of Parole’s decision on his parole eligibility had no connection to his

disability. The Notice of Parole Decisions filed by Norman with his complaint
No. 07-41090

5

shows that he was denied parole on two occasions because of his prior criminal

history, his criminal gang activity, and his acts of violence and use of a weapon.

Norman has not come forth with any evidence showing that he was denied

parole based on his mental or physical disability. The district court properly

dismissed this claim as frivolous. 28 U.S.C. § 1915A(b)(1).

Norman challenges the constitutionality of TEX. GOVT. CODE ANN.

§ 508.149, which addresses the ineligibility of certain inmates for mandatory

supervision release. The proper party defendant is the party responsible for

enforcing the law. Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Indep.

Auto. Dealers Ass’n, 37 S.W.3d 538, 541-42 (Tex.App.–El Paso 2001). As

previously stated, the TDCJ is not responsible for determining whether a

prisoner is eligible for release. Again, Norman has not sued the proper party.

The district court properly granted summary judgment on this claim.

Norman argues that the district court erred in granting the TDCJ

absolute immunity. The district court acknowledged that, under United States

v. Georgia, 126 S.Ct. 877, 881-82 (2006), the TDCJ has no sovereign immunity

from the ADA and the RA claims. Thus, this argument has no merit.

Norman makes a conclusory argument that the judgment should be

reversed because the magistrate and the district court judge were biased and

should have been disqualified under 28 U.S.C. § 455. However, other than his

displeasure with the judges’ rulings, Norman provides no facts to substantiate

this argument. Adverse judicial rulings alone, however, almost never support

an allegation of bias under 28 U.S.C. § 455. See Liteky v. United States, 114 S.

Ct. 1147, 1157 (1994). Norman has not demonstrated that he was subject to

judicial bias.

Norman repeatedly claimed in the district court that prison officials

retaliated against him because he filed grievances against prison personnel.

Public officials are prohibited from retaliating against individuals who have

filed discrimination claims under the ADA. 28 C.F.R. § 35.134. The alleged
No. 07-41090

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

6

acts of retaliation include taking his typewriter, his legal materials, and his

medically issued walking cane, and denying him a medical storage box. He has

not come forth with any evidence showing that these acts were committed in

retaliation for the grievances he filed claiming discrimination due to his mental

or physical disability. Thus, the district court did not err in granting the

TDCJ’s motion for summary judgment and dismissing the retaliation claim.

Norman argues thatit was determined attheSpears1 hearing that he had

stated a cause of action of intentional and willful discrimination based on a

disability. He is apparently asserting that this determination is sufficient to

allow him to proceed with his claims in the district court. However, the mere

fact that the magistrate judge determined that Norman stated an arguable

claim under the ADA and the RA does not show that the district court erred in

granting the TDCJ’s summary judgment based on the evidence that the TDCJ

presented in support of its motion. Norman failed to come forth with any

specific facts showing that the defendant intentionally discriminated against

him based on his disability. FED. R. CIV. P. 56(e). Thus, Norman failed to show

that there was a genuine issue for trial on his claims under the ADA or the RA.

Norman argues that he was entitled to the appointment of counsel and

to attorney’s fees pursuant to 28 C.F.R. § 35.175. This regulation provides that

a prevailing party in an ADA action may be entitled to recover attorney’s fees

and litigation costs. However, the regulation does not state that all individuals

seeking relief under the ADA are entitled to appointed counsel. The district

court determined that Norman was not entitled to relief under the ADA and,

thus, he is not a prevailing party within the meaning ofthe regulation. Norman

has not shown that he was entitled to the appointment of counsel or fees under

this provision.
No. 07-41090

7

The district court did not err in granting the TDCJ’s motion for summary

judgment and in dismissing Norman’s claim concerning parole pursuant to

§ 1915A(b)(1). 

AFFIRMED.