Velazquez v. Osari et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PHILLIP VELAZQUEZ,
(TDCJ # 02363422)
Plaintiff,
versus
M. OGARI, et al,
Defendants.
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CIVIL ACTION NUMBER
4:25-cv-01148
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON MOTION TO DISMISS
Plaintiff Phillip Velazquez sued multiple defendants
under 42 USC §1983. The motion to dismiss by Defendants
Mary Ogari, Ramon Serrano, Will Hudson, Christopher
Garcia, and the Texas Department of Criminal Justice is
granted. Dkt 16.
1. Background
Plaintiff proceeds pro se and in forma pauperis. His
§1983 complaint alleges that TDCJ and multiple TDCJ
officials violated his constitutional rights in a series of
events that began with the discovery of a cell phone. Dkt 1.
He alleges that on November 7, 2022, Corrections
Officer Ogari found a cell phone in a jacket that was left in
the dayroom of Plaintiff’s pod. Believing the cell phone
belonged to Plaintiff, she filed a major disciplinary case
against him for possessing contraband. Id at 4.
Plaintiff was moved to a pre-hearing detention cell,
where Gang Intelligence Officer Serrano questioned him.
Serrano told Plaintiff that he would lose his privileges, line
class, and custody level if convicted of the disciplinary
charge. Warden Garcia advised Plaintiff not to fight the
charge, claiming there was video footage to support it. Ibid.
United States District Court
Southern District of Texas
ENTERED
March 13, 2026
Nathan Ochsner, Clerk
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At the disciplinary hearing, counsel substitute told the
hearing officer that Plaintiff had no favorable evidence to
present. The hearing officer found Plaintiff guilty of the
charge and reduced his custody status and line class. Ibid.
Plaintiff appealed the conviction through TDCJ’s
grievance process. While the appeal was pending, Serrano
denied Plaintiff some of his mail and packages, contending
that they contained contraband. Serrano also conducted
numerous searches of Plaintiff’s cell but found none. Id
at 7.
On April 4, 2023, Plaintiff’s disciplinary conviction was
overturned, but he wasn’t notified of the decision until mid-
May. During those six weeks, Plaintiff remained in close
custody despite the now-overturned conviction. Ibid.
On May 24, 2023, Sergeant Hudson and a second
officer searched Plaintiff’s cell, again looking for
contraband. The officials wore gas masks and carried gas
canisters, but they didn’t videotape the search as required
by TDCJ policy. Hudson claimed he found a cell phone
during the search, and Plaintiff was again charged with
possessing contraband. Plaintiff was later found guilty of
the second charge, and that conviction was upheld. Ibid.
In December 2023, Plaintiff’s mother and father were
denied an in-person visit with Plaintiff that Garcia had
previously authorized. In January 2024, Plaintiff’s mother,
father, and girlfriend were placed on his negative mailing
list, allegedly due to illegal money transactions. No
disciplinary charges were ever filed on these allegedly
illegal transactions. Ibid.
Plaintiff alleges that TDCJ “administration” violated
his First, Eighth, and Fourteenth Amendment procedural
due process rights by these actions. He alleges that Ogari
violated his rights by abusing her authority and fabricating
a false disciplinary charge against him. He alleges that
Serrano retaliated against him for using the grievance
process to successfully challenge the first disciplinary
conviction. He alleges that Hudson conducted the second
search in retaliation for the overturned conviction, violated
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TDCJ policies while conducting the search, and violated
Plaintiff’s due process rights at the ensuing disciplinary
hearing. He alleges that Garcia is liable because he allowed
these corrupt actions to occur. Id at 3, 6. As relief, he seeks
an order restoring his custody status and awarding him
money damages. Id at 4.
Defendants were ordered to respond to the complaint.
Dkt 7. Defendants TDCJ, Ogari, Garcia, Serrano, and
Hudson responded with a motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), raising
multiple defenses to Plaintiff’s claims against them.
Dkt 16. TDCJ was unable to identify the remaining
defendants based on the information included in Plaintiff’s
complaint. Dkt 15.
Plaintiff responded to the motions, reiterating his
factual allegations and raising for the first time an equal
protection claim. He also clarified that his First
Amendment claim arises from the alleged retaliation by
Serrano, Hudson, and Garcia for Plaintiff’s use of the
grievance process. His Eighth Amendment claim is based
on Defendants leaving him in close custody after his
conviction was overturned. And his procedural due process
claims are based on the alleged conspiracy of all
Defendants during the disciplinary proceedings to obtain a
false conviction. Dkt 17.
Defendants filed a reply, reasserting their defenses and
contending that any additional facts and claims contained
in Plaintiff’s response weren’t properly raised in that
response and so shouldn’t be considered. Dkt 18.
Plaintiff filed a motion to “deny Defendants’ reply,” in
which he alleges for the first time a claim that Garcia failed
to properly train and supervise his subordinates. Dkt 19.
2. Legal standard
Plaintiff’s complaint is construed liberally because he
proceeds pro se. Coleman v United States, 912 F3d 824, 828
(5th Cir 2019), citing Erickson v Pardus, 551 US 89, 94
(2007, per curiam).
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Dismissal is appropriate “‘when the court lacks the
statutory or constitutional power to adjudicate’ the claim.”
In re Federal Emergency Management Agency Trailer
Formaldehyde Products Liability Litigation, 668 F3d 281,
286 (5th Cir 2012), quoting Home Builders Association, Inc
v City of Madison, 143 F3d 1006, 1010 (5th Cir 1998). Rule
12(b)(1) permits a defendant to seek such dismissal. Once
put at issue, the party asserting jurisdiction has the
burden to establish by a preponderance of the evidence that
it properly exists. New Orleans & Gulf Coast Railway Co v
Barrois, 533 F3d 321, 327 (5th Cir 2008). Indeed, a
presumption against subject-matter jurisdiction “must be
rebutted by the party bringing an action to federal court.”
Coury v Prot, 85 F3d 244, 248 (5th Cir 1996).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires a plaintiff’s complaint to provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Rule 12(b)(6) allows the defendant to
seek dismissal if the plaintiff fails “to state a claim upon
which relief can be granted.”
Reading these Rules together, the Supreme Court has
held that Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v
Iqbal, 556 US 662, 678 (2009), quoting Bell Atlantic Corp v
Twombly, 550 US 544, 555 (2007). To survive a Rule
12(b)(6) motion to dismiss, the complaint “must provide the
plaintiff’s grounds for entitlement to relief—including
factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” Cuvillier v
Taylor, 503 F3d 397, 401 (5th Cir 2007), quoting Twombly,
550 US at 544.
A complaint must therefore contain “enough facts to
state a claim to relief that is plausible on its face.”
Twombly, 550 US at 570. A claim has facial plausibility
“when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 US at 678,
citing Twombly, 550 US at 556. This standard on
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plausibility is “not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 US at 678, quoting
Twombly, 550 US at 556.
Review on a motion to dismiss under Rule 12(b)(6) is
constrained, being generally limited to the contents of the
complaint and its attachments. Brand Coupon Network
LLC v Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir
2014). The reviewing court “must accept all well-pleaded
facts as true and view them in the light most favorable to
the plaintiff.” Walker v Beaumont Independent School
District, 938 F3d 724, 735 (5th Cir 2019) (cleaned up). But
“courts ‘do not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.’”
Vouchides v Houston Community College System, 2011 WL
4592057, *5 (SD Tex), quoting Gentilello v Rege, 627 F3d
540, 544 (5th Cir 2010). And while pro se litigants are held
to less stringent pleading standards than attorneys, they
aren’t excused from the requirement to allege sufficient
facts to state a plausible claim. See Taylor v Books A
Million Inc, 296 F3d 376, 378 (5th Cir 2002); Toole v Peak,
361 F Appx 621, 621 (5th Cir 2010, per curiam) (self-
represented litigant “still must actually argue something
that is susceptible of liberal construction”).
3. Discussion
a. Official capacity claims
Plaintiff seeks an award of money damages from TDCJ
and the individual defendants in their official capacities.
The Eleventh Amendment bars suits for damages
against a state in federal court. Kentucky v Graham,
473 US 159, 169 (1985). “Absent waiver, neither a State
nor agencies acting under its control [are] ‘subject to suit
in federal court.’” Puerto Rico Aqueduct and Sewer
Authority v Metcalf & Eddy Inc, 506 US 139, 144 (1993),
quoting Welch v Texas Department of Highways and Public
Transportation, 483 US 469, 480 (1987). This bar also
applies to state officials sued for damages in their official
capacity. Kentucky, 473 US at 169.
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TDCJ is an arm of the State of Texas and so is immune
from suit in federal court under the Eleventh Amendment.
Valentine v Collier, 993 F3d 270, 280 (5th Cir. 2021).
Likewise, actions against state officials in their official
capacity are treated as actions against the state and are
barred by the Eleventh Amendment. Hafer v Melo, 502 US
21, 25 (1991). Plaintiff’s claims against TDCJ and the
individual defendants in their official capacity can’t
proceed in federal court.
The motion by Defendants to dismiss under Rule
12(b)(1) is GRANTED. Dkt 16.
The claims by Plaintiff for money damages against
TDCJ and against the individual Defendants in their
official capacity are DISMISSED WITHOUT PREJUDICE for lack
of subject-matter jurisdiction.
b. May 2023 disciplinary hearing
Plaintiff alleges that Defendants violated TDCJ
policies and Plaintiff’s constitutional rights during the
proceedings relating to the May 2023 disciplinary charge.
To bring a §1983 action based on an allegedly
unconstitutional conviction, the plaintiff must demon-
strate that “the conviction . . . has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ
of habeas corpus [under] 28 USC §2254.” Heck v Humphrey,
512 US 477, 486–87 (1994). Heck bars any cause of action
under §1983, regardless of the type of relief sought, that
would necessarily imply that a conviction or sentence is
invalid unless the conviction has already been invalidated
through proper channels. Id at 487.
In the disciplinary context, Heck doesn’t bar an action
if the basis of a prisoner’s claim “is distinct from the basis
of his disciplinary conviction.” Gray v White, 18 F4th 463,
467–68 (5th Cir 2021), quoting Bourne v Gunnels, 921 F3d
484, 491 (5th Cir 2019). But if a ruling in the prisoner’s
favor would “negate the prison’s finding that [the prisoner]
violated its policies and was subject to disciplinary action
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as a result,” the action can’t proceed unless the prisoner
satisfies Heck’s favorable-termination requirement. Ibid. If
the plaintiff hasn’t satisfied the favorable-termination
requirement, “he is barred from any recovery.” Randell v
Johnson, 227 F3d 300, 301 (5th Cir 2000, per curiam).
Plaintiff alleges that the May 2023 disciplinary charge
was filed in retaliation for his successful challenge to his
earlier disciplinary conviction. But a ruling in his favor
would necessarily negate the finding at the disciplinary
hearing that he violated TDCJ’s policies and was subject to
discipline. His claims thus aren’t appropriate for federal
court consideration at this time. Until Plaintiff receives a
ruling that satisfies Heck’s favorable-termination
requirement, no action will accrue under §1983. Heck,
512 US at 488–89.
The motion to dismiss by Defendants as to Plaintiff’s
claims from the May 23 disciplinary charge is GRANTED.
Dkt 16.
Plaintiff’s claims against all Defendants arising from
the May 2023 disciplinary conviction are DISMISSED
WITHOUT PREJUDICE to being reasserted if and when the
Heck conditions are satisfied. See Clarke v Stalder, 154 F3d
186, 191 (5th Cir 1998); Johnson v. McElveen, 101 F3d 423,
424 (5th Cir 1996, per curiam).
c. Warden Christopher Garcia
Plaintiff claims that Garcia is liable because he
“permitted corrupt actions by Wynne Unit employees.”
Dkt 1 at 3. Plaintiff also alleges that Garcia “affirmed” the
second disciplinary charge by denying Plaintiff’s appeal.
Ibid.
Under §1983, supervisory officials aren’t responsible
for the actions of their subordinates on a theory of either
vicarious liability or respondeat superior. See Oliver v
Scott, 276 F3d 736, 742 (5th Cir 2002); Thompkins v Belt,
828 F2d 298, 303 (5th Cir 1987). Only the direct actions or
omissions of a government official will give rise to
individual liability under §1983. See Alton v Texas A&M
University, 168 F3d 196, 200 (5th Cir 1999). Plaintiff
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therefore can’t hold Garcia liable based solely on actions
taken or not taken by his subordinates.
But supervisors can be held liable for their own actions.
To state a claim against a supervisory official under §1983,
the plaintiff must allege facts showing either (i) the
supervisor’s personal involvement in a constitutional
deprivation and a causal connection between the
supervisor’s wrongful conduct and a constitutional
deprivation, or (ii) the supervisor’s decision to implement
an unconstitutional policy that resulted in a violation of the
plaintiff’s constitutional rights. See Thompkins, 828 F2d
at 303–04; see also Gates v Texas Department of Protective
and Regulatory Services, 537 F3d 404, 435 (5th Cir 2008).
The only fact Plaintiff alleges concerning Garcia’s
participation in any of the alleged wrongdoing is his denial
of Plaintiff’s appeal of the disciplinary conviction in May
2023. But as explained above, any claim arising from that
conviction is barred by Heck.
Absent Garcia’s personal participation, Plaintiff can
hold him liable only by showing that he implemented an
unconstitutional official policy that causally resulted in the
alleged violation. Peña v City of Rio Grande City, 879 F3d
613, 620 (5th Cir 2018), citing Gates, 537 F3d at 435. An
official policy includes “the decisions of a government’s
lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically
have the force of law.” Connick v Thompson, 563 US 51, 61
(2011). Liability attaches when “supervisory officials
implement a policy so deficient that the policy ‘itself is a
repudiation of constitutional rights’ and is ‘the moving
force of the constitutional violation.’” Thompkins, 828 F2d
at 304, quoting Grandstaff v City of Borger, 767 F2d 161,
169, 170 (5th Cir 1985).
This standard requires more than conclusory
assertions. As framed by the Fifth Circuit, a complaint’s
“description of a policy or custom and its relationship to the
underlying constitutional violation . . . cannot be
conclusory; it must contain specific facts.” Peña, 879 F3d at
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621, quoting Spiller v City of Texas City, Police
Department, 130 F3d 162, 167 (5th Cir 1997).
In addition, the plaintiff must allege facts showing that
the supervisory official acted with deliberate indifference.
Porter v Epps, 659 F3d 440, 446 (5th Cir 2011). Deliberate
indifference is “a stringent standard of fault,” one
“requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Id. at 446–47,
quoting Connick, 563 US at 61. The allegations necessary
to show a supervisor’s deliberate indifference generally
must include at least a pattern of similar violations. Rios v
City of Del Rio, Texas, 444 F3d 417, 427 (5th Cir 2006)
(citations omitted).
Plaintiff doesn’t identify any official policy or custom
implemented or adopted by Garcia, nor does he show how
any such policy caused the alleged violation of his
constitutional rights. Absent facts that could support the
existence of an unconstitutional official policy, Plaintiff’s
complaint fails to state a claim for supervisory liability
against Garcia.
Seeking to avoid this result, Plaintiff belatedly raises a
claim in his “Motion to Deny Defendants’ Reply” based on
a failure to train or supervise. Dkt 19. This claim fails for
two reasons.
First, Plaintiff was previously advised that no
amendments or supplements to his complaint would be
permitted without prior approval. Dkt 6. He didn’t seek
approval before attempting to add these new claims
against Garcia to his current action.
Second, Plaintiff doesn’t allege facts that state a claim
for failure to train or supervise. Such a claim requires facts
demonstrating that (i) the supervisor either failed to
supervise or train the subordinate official, (ii) a causal link
exists between the failure to train or supervise and the
violation of the plaintiff’s rights, and (iii) the failure to
train or supervise amounts to deliberate indifference to the
constitutional right allegedly violated. See Estate of Davis
ex rel McCully v City of North Richland Hills, 406 F3d 375,
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381 (5th Cir 2005). Deliberate indifference requires
showing that the official (i) was aware of facts from which
an inference could be drawn that a substantial risk of
serious harm exists, and (ii) actually drew the inference.
Ibid. Proof of more than a single instance of lack of training
or supervision causing a violation of constitutional rights
is generally required before such lack can constitute
deliberate indifference. Instead, the plaintiff must show a
pattern of similar violations that together demonstrate
that the training or supervision is “so clearly inadequate as
to be obviously likely to result in a constitutional violation.”
Roberts v City of Shreveport, 397 F3d 287, 292 (5th Cir
2005), quoting Burge v St Tammy Parish, 336 F3d 363, 370
(5th Cir 2003).
Plaintiff makes only a conclusory allegation that
Garcia failed to train or supervise the officers at the Wynne
Unit. He alleges no facts showing that Garcia was directly
involved in the training or supervision of any of the other
officers, that any training or supervision they received was
inadequate, or that Garcia was aware of a pattern of
similar violations sufficient to put him on notice that
additional training or supervision was needed to prevent
constitutional violations. Plaintiff’s conclusory allegation
based on his own earlier conviction and some unidentified
similar charges against other unidentified prisoners at
unidentified times doesn’t show the pattern or practice
necessary to state a claim against Garcia for failure to train
or supervise.
Even considering the new facts included in Plaintiff’s
unauthorized supplemental pleading, he doesn’t allege
facts sufficient to state a claim for supervisory liability
against Garcia.
The motion to dismiss by Garcia is GRANTED. Dkt 16.
The claims by Plaintiff against Garcia are DISMISSED
WITH PREJUDICE for failing to state a claim upon which
relief can be granted.
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d. Mary Ogari
Plaintiff alleges that Ogari violated his rights by
fabricating the basis for the first disciplinary charge.
Filing a false or fabricated disciplinary charge, without
more, isn’t a constitutional violation. See Grant v Thomas,
1994 WL 558835, *1 (5th Cir, per curiam), citing Collins v
King, 743 F2d 248, 253–54 (5th Cir 1984). “A claim that a
prisoner was ‘improperly charged with things he did not
do,’ standing alone, does not state a due process claim.”
Harris v Smith, 482 F Appx 929, 930 (5th Cir 2012,
per curiam), citing Collins, 743 F2d at 253. Thus, an
allegation that a prison official brought a false disciplinary
charge against a prisoner doesn’t state a claim under §1983
so long as the prisoner has been afforded due process
through a subsequent hearing. Collins, 743 F2d at 253.
Plaintiff admits that he had a subsequent hearing and
that he was ultimately cleared of the charge. Because of
this, he fails to state a claim under §1983 against Ogari
based on the allegedly false disciplinary charge.
The motion to dismiss by Ogari is GRANTED. Dkt 16.
The claims by Plaintiff against Ogari are DISMISSED
WITH PREJUDICE for failing to state a claim upon which
relief can be granted.
e. Ramon Serrano and Will Hudson
Plaintiff alleges that Serrano and Hudson violated his
constitutional rights by retaliating against him for
exercising his First Amendment right to file grievances and
challenge disciplinary convictions.
The Fifth Circuit teaches that prison officials “may not
retaliate against or harass an inmate for complaining
through proper channels about a guard’s misconduct.”
Morris v Powell, 449 F3d 682, 684 (5th Cir 2006), citing
Woods v Smith, 60 F3d 1161, 1164 (5th Cir 1995). A prima
facie case of retaliation in the prison context requires the
plaintiff to show that (i) he exercised a specific
constitutional right, (ii) the defendant intended to retaliate
against him for the exercise of that right, (iii) the defendant
took a retaliatory adverse action, and (iv) the plaintiff’s
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exercise of the constitutional right caused the retaliatory
adverse action. Johnson v Rodriguez, 110 F3d 299, 310
(5th Cir 1997). The adverse acts must be sufficiently
serious to rise to the level of a constitutional violation.
Morris, 449 F3d at 684–85. That standard requires acts
that “would chill or silence a person of ordinary firmness
from future First Amendment activities.” Id at 685–86,
quoting Crawford-El v Britton, 93 F3d 813, 826 (DC Cir
1996).
Serrano and Hudson contend that Plaintiff fails to
establish the fourth element. To allege the causation
element in a retaliation claim, the plaintiff must either
“produce direct evidence of retaliation or, the more
probable scenario, a chronology of events from which
retaliation may plausibly be inferred. Woods, 60 F3d at
1166. The plaintiff’s personal belief that he’s the victim of
retaliation isn’t sufficient. Johnson, 110 F3d at 310.
Plaintiff’s allegations don’t meet this standard. He
alleges that Serrano conducted more frequent cell searches
and closely examined Plaintiff’s incoming mail and
packages while the disciplinary appeal was pending. But
because the underlying conviction for having contraband
was valid at that time, those facts don’t support a plausible
inference of retaliation. He also alleges that Hudson
retaliated for the overturned conviction by planting the
second cell phone. But Plaintiff doesn’t allege facts showing
that Hudson knew of the overturned conviction or had any
other reason to retaliate against Plaintiff. Absent such
knowledge, retaliation can’t plausibly be inferred.
Plaintiff’s conclusory factual allegations are thus legally
insufficient to state a claim for retaliation against Serrano
and Hudson.
The motion to dismiss by Serrano and Hudson is
GRANTED. Dkt 16.
The claims against them by Plaintiff are DISMISSED
WITH PREJUDICE for failing to state a claim upon which
relief can be granted.
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f. Fourteenth Amendment claims
Plaintiff alleges that unspecified Defendants violated
his Fourteenth Amendment rights in two ways, by
(i) denying him due process in the disciplinary hearings,
and (ii) violating his rights under the Equal Protection
Clause.
i. Due process
Plaintiff alleges that he was denied due process during
the first disciplinary hearing because Serrano conspired
with an unidentified disciplinary hearing officer and the
counsel substitute to obtain a finding of guilt despite a lack
of evidence. Heck doesn’t bar this claim because the
conviction was later reversed. See Clarke, 154 F3d at 189.
Due process in prison disciplinary proceedings entitles
the prisoner to (i) written notice of the charges at least 24
hours prior to a disciplinary hearing, (ii) an opportunity “to
call witnesses and present documentary evidence in his
defense when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals,” and
(iii) “a written statement by the factfinders as to the
evidence relied on and the reason for the disciplinary
action.” Wolff v McDonnell, 418 US 539, 564, 566 (1974).
There must also be “some evidence” supporting the finding
of guilt. Morgan v Quarterman, 570 F3d 663, 668 (5th Cir
2009). But the later reversal of a disciplinary conviction
doesn’t automatically establish that due process violations
occurred during the hearing. See Grant, 1994 WL 558835
at *1.
Plaintiff doesn’t allege that he was denied written
notice of the charges, denied an opportunity to call
witnesses or present evidence, or denied a written
statement of the reason for the decision. Instead, he seems
to allege that there wasn’t any evidence to support the
finding of guilt. But Plaintiff alleges that Ogari brought the
charge because she believed the jacket belonged to him.
Dkt 1 at 4. He also alleges that Garcia told him not to fight
the charge “because of footage.” Ibid. And Plaintiff’s Step 2
grievance states that video footage from the dayroom
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exists, but it doesn’t prove that the jacket “definitely” or
“positively” belonged to him. Id at 15.
District courts don’t independently assess witness
credibility or reweigh the evidence in determining whether
“some evidence” existed to support the conviction. Richards
v Dretke, 394 F3d 291, 294 (5th Cir 2004). Because video
footage existed that apparently contained some evidence
relevant to Plaintiff’s possession of the jacket, the facts he
alleges don’t support a conclusion that he was convicted
without “some evidence” of guilt.
Plaintiff thus doesn’t allege facts stating a claim for a
violation of his Fourteenth Amendment procedural due
process rights.
ii. Equal Protection
In his response to Defendants’ motion, Plaintiff for the
first time raises a claim that unspecified Defendants
violated his equal protection rights by leaving him in G5
custody after his disciplinary conviction was overturned.
Dkt 17. This claim can’t go forward for three reasons.
First, “new allegations cannot be raised in response to
a motion to dismiss.” Schieroni v Deutsche Bank National
Trust Company, 2011 WL 3652194, *6 (SD Tex). Plaintiff
didn’t raise this claim in his complaint, and he can’t raise
it for the first time in response to Defendants’ motion to
dismiss.
Second, Plaintiff was previously advised that no
amendments or supplements to his complaint would be
permitted without prior Court approval. Dkt 6. He didn’t
seek approval before attempting to add this new claim to
his current action, so it’s not properly included in this
action.
Third, even if Plaintiff’s response could be construed as
a motion seeking leave to amend to add the new claim, it
wouldn’t be granted because he doesn’t allege facts stating
an equal protection claim. To succeed on such a claim, a
plaintiff “must prove purposeful discrimination resulting
in a discriminatory effect among persons similarly
situated.” Adkins v Kaspar, 393 F3d 559, 566 (5th Cir
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2004), quoting Muhammad v Lynaugh, 966 F2d 901, 903
(5th Cir 1992). A plaintiff must also show that the
disparate treatment arises from a suspect classification,
such as race, alienage, national origin, or gender. DC v
Klein Independent School District, 711 F Supp 2d 739, 748
(SD Tex 2010).
Plaintiff claims his right to equal protection was
violated when his custody level wasn’t immediately
restored after the first disciplinary conviction was
overturned. But he doesn’t allege facts showing that he was
treated differently from other similarly situated prisoners.
Nor does he identify any suspect classification to which he
belongs.
In short, even if considered, his allegations fail to state
a claim for an equal protection violation. Granting leave to
amend would therefore be futile.
The motion by Defendants to dismiss the claims for
procedural due process and equal protection violations is
GRANTED. Dkt 16.
The Fourteenth Amendment claims by Plaintiff are
DISMISSED WITH PREJUDICE for failing to state a claim.
g. Eighth Amendment claims
Plaintiff alleges that unspecified Defendants violated
his Eighth Amendment rights by subjecting him to
inhumane conditions after his custody level was changed.
He specifically alleges that he was “oppressed by the
administration in close[] custody.” Dkt 1 at 14. In his
response, Plaintiff also adds that unspecified Defendants
subjected him to “a hostile environment, floods, fires,
fights, and staff misconduct,” while being deliberately
indifferent to these conditions. Dkt 17 at 3.
The Eighth Amendment requires prison officials to
“ensure that inmates receive adequate food, clothing,
shelter, and medical care, and . . . ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer
v Brennan, 511 US 825, 832 (1994), quoting Hudson v
Palmer, 468 US 517, 526–27 (1984). Comfortable prisons
aren’t required, and the challenged conditions must pose a
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substantial risk of serious harm. Ball v LeBlanc, 792 F3d
584, 592 (2015).
Plaintiff alleges no facts showing that he’s been denied
adequate food, clothing, shelter, or medical care. And even
considering the additional facts alleged in his response, he
doesn’t show that his confinement in close custody posed a
substantial risk of serious harm. His allegations don’t state
a claim for relief under the Eighth Amendment against any
Defendant.
The motion by Defendants to dismiss the Eighth
Amendment claims is GRANTED. Dkt 16.
The Eighth Amendment claims by Plaintiff are
DISMISSED WITH PREJUDICE for failing to state a claim upon
which relief can be granted.
h. First Amendment
The complaint by Plaintiff alleges that unspecified
Defendants violated his First Amendment rights in some
unspecified way. In his response to the motion to dismiss,
Plaintiff clarifies that his First Amendment claim arises
from the alleged retaliation by Serrano, Hudson, and
Garcia for his use of the grievance process.
As explained above, Plaintiff doesn’t allege sufficient
facts to support a retaliation claim against any of the
defendants.
The motion by Defendants to dismiss the First
Amendment claims is GRANTED. Dkt 16.
The First Amendment claims by Plaintiff are
DISMISSED WITH PREJUDICE for failing to state a claim upon
which relief can be granted.
i. Qualified immunity
Defendants raise the affirmative defense of qualified
immunity. Such immunity protects government officials
“from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v Callahan, 555 US 223, 231 (2009),
quoting Harlow v Fitzgerald, 457 US 800, 818 (1982). Its
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availability as a defense ultimately “turns only upon the
objective reasonableness of the defendant’s acts.”
Thompson v Upshur County, 245 F3d 447, 457 (5th Cir
2001).
Analysis of qualified immunity involves two inquiries.
See Aguirre v City of San Antonio, 995 F3d 395, 406
(5th Cir 2021); see also Batyukova v Doege, 994 F3d 717,
724–25 (5th Cir 2021). A court first asks “whether the facts,
taken in the light most favorable to the party asserting the
injury, show the officer’s conduct violated a federal right.”
Aguirre, 995 F3d at 406, quoting Tolan v Cotton, 572 US
650, 655–56 (2014, per curiam). Second, it determines
whether the allegedly wrongful conduct violated clearly
established law. Tolan, 572 US at 656, citing Hope v Pelzer,
536 US 730, 739 (2002).
As explained above, Plaintiff doesn’t sufficiently allege
that any Defendant violated his constitutional rights.
Consideration of the second question is thus unnecessary.
The motion by Defendants to dismiss Plaintiff’s claims
against them based on qualified immunity is GRANTED. Dkt
16.
The claims by Plaintiff against Defendants are
DISMISSED WITH PREJUDICE as barred by qualified
immunity.
4. Conclusion
The motion to dismiss by Defendants Mary Ogari,
Ramon Serrano, Will Hudson, Christopher Garcia, and the
Texas Department of Criminal Justice is GRANTED. Dkt 16.
The claims by Plaintiff Phillip Velazquez against these
Defendants are DISMISSED WITH PREJUDICE.
Plaintiff’s motion to deny Defendants’ reply is DENIED.
Dkt 19.
A separate order will be entered concerning Plaintiff’s
claims against the other remaining Defendants.
Defendants’ motion to substitute counsel is GRANTED.
Assistant Attorney General Abigail Carter is substituted
in place of Assistant Attorney General Joseph P. McDuffie.
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Dkt 21.
SO ORDERED.
Signed on , at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
March 13, 2026
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