Abdullah v. State of Texas ( 2023 )

Case: 22-50347 Document: 00516606682 Page: 1 Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50347
Summary Calendar FILED
January 11, 2023
Lyle W. Cayce
Tamir Abdullah, Clerk
Plaintiff—Appellant,
versus
State of Texas; Henry Garza; Sheriff Eddie Lange;
Killeen Police Department; John Galligan,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:22-CV-160
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Appellant Tamir Abdullah brought the instant case, proceeding pro se
and in forma pauperis, under 42 U.S.C. § 1983. He alleges constitutional
violations committed by his attorney, John Galligan; the State of Texas; the
Killeen Police Department; the Bell County district attorney, Henry Garza;
and the Bell County sheriff, Eddie Lange. The district court dismissed
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50347 Document: 00516606682 Page: 2 Date Filed: 01/11/2023
No. 22-50347
Abdullah’s suit for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B).
Under this section, a district court must dismiss a complaint if it is
“frivolous,” “malicious,” or “fails to state a claim on which relief may be
granted.” § 1915(e)(2)(B)(i)–(ii).
We conclude that there was no error in the district court’s dismissal.
Rather, we agree with the district court that many of Abdullah’s claims are
plainly precluded. 1 Further, to the extent Abdullah attempts to challenge his
current detention, that claim is not properly before us. See Preiser v.
Rodriguez, 411 U.S. 475, 488–90 (1973) (noting that a petition for habeas relief
is the proper remedy to challenge the facts or duration of confinement).
Finally, Abdullah’s remaining claim asserting that he was denied adequate
medical care is similarly meritless. To establish such a claim, Abdullah was
required to plead that prison officials acted with deliberate indifference to his
medical needs. 2 See Hare v. City of Corinth, 74 F.3d 633, 636 (5th Cir. 1996)
(en banc). But “[d]eliberate indifference is an extremely high standard to
meet.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
It “cannot be inferred merely from a negligent or even a grossly negligent
response to a substantial risk of serious harm.” Thompson v. Upshur County,
1
First, his claim against the State of Texas is barred by the Eleventh Amendment.
Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Second,
he fails to properly plead any allegations supporting a supervisory liability theory against
Sheriff Lange. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 693 (1978). Third, his
claim against the Killeen Police Department is precluded because the Department is not a
legal entity capable of being sued. See Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th
Cir. 1991). Fourth, District Attorney Garza is immune from suit for actions taken in
connection with judicial proceedings. See Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994).
Finally, Abdullah’s claim against his defense attorney Galligan fails because his attorney is
not a state actor subject to § 1983 liability. See Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677,
679 (5th Cir. 1988).
2
To establish deliberate indifference, a plaintiff must plead that “[1] the official
was aware of facts from which an inference of substantial risk of serious harm could be
drawn; [2] the official actually drew that inference; and [3] the official’s response indicates
the official subjectively intended that harm occur.” Thompson v. Upshur County, 245 F.3d
447, 458–59 (5th Cir. 2001).
2
Case: 22-50347 Document: 00516606682 Page: 3 Date Filed: 01/11/2023
No. 22-50347
245 F.3d 447, 459 (5th Cir. 2001). Abdullah has failed to plead any allegations
which could be construed as establishing deliberate indifference. Thus, this
claim also fails.
Abdullah is warned that the district court’s dismissal of his action as
frivolous counts as a “strike” under 28 U.S.C. § 1915(g). If Abdullah
accumulates three strikes, he will not be able to proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury.
AFFIRMED; SANCTION WARNING ISSUED. The motion to
amend party names is DENIED. 3
3
On appeal, Abdullah moved to “amend the names of the parties to this action.”
The motion seeks to add several previously unnamed defendants. However, Abdullah
never moved to amend his complaint or add additional parties in the proceedings before
the district court. His attempt to do so here on appeal then is improper.
3