Castro v. Wallace ( 2023 )

Case: 21-50909 Document: 00516740169 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 5, 2023
No. 21-50909
Lyle W. Cayce
____________ Clerk
Hubert Edward Castro,
Plaintiff—Appellant,
versus
Warden Darren Wallace, TDCJ Hughes Unit, in his Individual and
Official Capacity; Assistant Warden Toby Powell, TDCJ Hughes
Unit, in his Individual and Official Capacity; Chimdi Akwitti;
Beverly Dawn Smith; Captain Annette Martinez, TDCJ
Hughes Unit, in her Individual and Official Capacity; Counsel
Substitute K. Brase, TDCJ Hughes Unit, in his Individual and
Official Capacity; Counsel Substitute Jane #2 Doe, TDCJ
Hughes Unit, in her Individual and Official Capacity; Counsel
Substitute Jane Doe #3, TDCJ Hughes Unit, in her Individual and
Official Capacity; Director’s Review Committee -
Huntsville, Individual and Official Capacity; Nichole McEntire;
Diana Duff; Veronyka Kiss,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-1116
______________________________
Before Richman, Chief Judge, and Stewart and Dennis, Circuit
Judges:
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Per Curiam:*
Hubert Edward Castro, Texas prisoner #1049656, appeals the
dismissal of his pro se 42 U.S.C. § 1983 civil rights complaint. For the
following reasons, we AFFIRM in part, VACATE in part, and REMAND.
I.
Castro filed his complaint in 2020, arguing that the defendants
violated his constitutional rights by filing false disciplinary charges against
him and restricting his contact with his wife. Specifically, he alleged that in a
2013 Inter-Office Communication (IOC), Darren Wallace, then the Stiles
Unit assistant warden, recommended restricting Castro’s communications
with his wife, Mrs. Cash-Castro, a former prison employee. The IOC
indicated that Castro was a member of the Mexican Mafia and that Cash-
Castro had provided Castro with a cellular telephone. Castro’s complaint
further alleged that, in 2019, the defendants initiated a false disciplinary case
against him based on conduct occurring in the Hughes Unit. Castro alleged
that prison officials overheard him and his wife discussing the 2013 IOC and
the possibility of initiating legal action against Wallace, who had become the
Hughes Unit warden. Castro alleges that in retaliation for discussing this
possible legal action, one of the defendants, Beverly Dawn Smith, falsely
charged him in a disciplinary case with planning to inflict harm on Wallace
and to smuggle contraband drugs (K2) into the prison with his wife’s help.
Castro alleged that Smith based these false charges on alleged recordings or
transcripts of conversations between him and his wife.
Castro also alleged that certain defendants, including Chimdi Akwitti,
improperly handled the grievances he filed challenging his disciplinary
conviction for the false charges. Further, he alleges that K. Brase and the Jane
Doe defendants, who acted as his counsel substitute during the disciplinary
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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proceedings, violated his constitutional rights by failing to secure either a
recording or a transcript of the alleged conversations between Castro and his
wife. Castro sought compensatory and punitive damages, declaratory relief,
and injunctive relief. After Castro filed a more definite statement at the
request of the district court, defendants moved to dismiss the case pursuant
to Federal Rule of Civil Procedure 12(b). The district court granted the
motion to dismiss, and Castro appeals.
II.
We review a dismissal of a complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) de novo. See Smith v. Hood, 900 F.3d
180, 184 (5th Cir. 2018).
III.
A.
An individual state officer sued in his official capacity for § 1983
money damages is entitled to immunity. See Oliver v. Scott, 276 F.3d 736, 742
(5th Cir. 2002). Dismissal of such claims is proper under Rule 12(b)(1) and is
reviewed de novo. See Smith, 900 F.3d at 184. Claims for declaratory and
prospective injunctive relief against such state officers in their official
capacities are permissible. Aguilar v. Texas Dep’t of Crim. Just., 160 F.3d
1052, 1054 (5th Cir. 1998). Contrary to Castro’s arguments, the district court
properly dismissed his claims for damages against the defendants in their
official capacities and recognized that the immunity doctrine did not bar his
remaining claims. See Oliver, 276 F.3d at 742.
B.
The district court also dismissed Castro’s claims against K. Brase and
the Jane Doe defendants, who acted as Castro’s counsel substitutes during
the disciplinary proceedings. The court determined that the defendants were
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not state actors for purposes of § 1983 liability, and Castro had not alleged a
conspiracy to commit an illegal act and violate his constitutional rights
between the defendants and a state actor.
To state a § 1983 claim against his counsel substitutes, Castro was
required to “(1) allege a violation of a right secured by the Constitution or
laws of the United States and (2) demonstrate that the alleged deprivation
was committed by a person acting under color of state law.” Pratt v. Harris
Cnty., 822 F.3d 174, 180 (5th Cir. 2016) (internal quotation marks and
citation omitted). In Banuelos v. McFarland, we analogized the role of a
counsel substitute to that of a public defender and noted that a public
defender does not act under color of state law when acting as an advocate. 41
F.3d 232, 234 (5th Cir. 1995) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318-
19 (1981)). We therefore held that the actions of counsel substitute in a prison
disciplinary hearing likewise are not actions under color of state law. Id. As
alleged in Castro’s complaint, K. Brase and the Jane Doe defendants served
as counsel substitutes, acting as Castro’s advocates during the disciplinary
hearing, and are therefore not state actors. See id. The district court did not
err in dismissing Castro’s claims against these defendants.
C.
The district court also rejected Castro’s claim against Akwitti, noting
that supervisory officials cannot be held vicariously liable in § 1983 cases;
rather, they only may be held liable if they are personally involved in the
alleged constitutional violation. Here, Castro has not alleged that Akwitti was
personally involved aside from his routine handling of a grievance, and Castro
had no constitutional right to have his grievance resolved in a favorable
manner. Further, even if a prison official overturned the disciplinary
conviction after Castro filed a Step 2 grievance, Castro’s argument that he
was denied a meaningful prison grievance proceeding by Akwitti’s denial of
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his Step 1 grievance was properly dismissed because any due process error in
his disciplinary case was cured when the case was overturned through the
administrative appeal process. See Ard v. Leblanc, 404 F. App’x 928, 929 (5th
Cir. 2010); Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
D.
For the first time in his reply brief, Castro challenges the district
court’s dismissal of his retaliation claim. This court does not consider issues
raised for the first time in a reply brief, and we therefore affirm the district
court’s dismissal of Castro’s retaliation claim. See Morin v. Moore, 309 F.3d
316, 328 (5th Cir. 2002).
E.
In rejecting Castro’s claim that the defendants violated his
constitutional rights by restricting contact with his wife, the district court
held that the prison had a legitimate interest in maintaining security that
justified such a restriction, given that Castro’s wife had smuggled an illegal
cell phone into the prison in 2013, Castro and his wife sought to smuggle K2
into the prison in 2019, and they sought to harm Warden Wallace in 2019.
Although the 2019 disciplinary conviction was overturned, the district court
concluded that the conviction was overturned for procedural reasons, which
did not eliminate the security risk posed by Castro.
Our review of the district court’s Rule 12(b)(6) dismissal is de novo.
See Smith, 900 F.3d at 184. We, like the district court, must accept all well-
pleaded facts as true and view those facts in the light most favorable to the
plaintiff. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.
2019). Dismissal “is warranted if the complaint does not contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Id. at 734 (internal quotation marks and citation omitted).
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Prisoners retain First Amendment free speech rights that are
consistent “with the legitimate penological objectives of the corrections
system.” Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (internal
quotation marks and citation omitted). Restrictions on those rights cannot be
greater than necessary to protect the correctional interests involved. Id. at
822. “[P]risoners have no absolute constitutional right to visitation,” but
“[e]ven so, limitations of visitation may be imposed only if they are necessary
to meet legitimate penological objectives.” Lynott v. Henderson, 610 F.2d
340, 342-43 (5th Cir. 1980); see Berry v. Brady, 192 F.3d 504, 508 (5th Cir.
1999).
To support the conclusion that there was a reasonable penological
interest at stake, the district court pointed to the 2013 IOC that Castro and
his wife smuggled an illegal cell phone into the prison and the 2019
disciplinary case that claimed Castro sought to smuggle K2 into the prison
and to harm Wallace. As to the 2013 IOC, however, Castro alleged in his
complaint and in his response to the district court’s request for a more
definite statement that the IOC contained false charges and that the
defendants permitted him to resume contact with his wife five years after the
2013 IOC. Viewing the facts as true and in the light most favorable to Castro,
see Walker, 938 F.3d at 735, the defendants no longer considered the
smuggled telephone a security concern in 2019, because he was permitted to
resume contact with her.
The remaining two grounds supporting the district court’s decision—
Castro’s supposed attempts to smuggle K2 into the prison and to harm
Wallace with his wife’s help—are belied by Castro’s attachment to his
complaint, which shows that these grounds were the basis of the 2019
disciplinary conviction, which was subsequently overturned. Castro alleged
in his complaint that he and his wife never discussed smuggling K2 into the
prison, nor did they discuss harming Wallace, but instead had discussed filing
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a lawsuit against Wallace, and the defendants made false accusations against
him in the disciplinary proceeding in retaliation for his intent to file a lawsuit
against Wallace. Although the district court concluded that the disciplinary
conviction was overturned for procedural reasons, which could mean that the
grounds underlying the conviction remained valid security concerns, the
grievance report provides no express reason for the decision to overturn the
conviction. It is true that Castro argued that his procedural due process rights
were violated during the disciplinary proceedings, and it is therefore possible
that the grievance officer’s decision to overturn the conviction was based on
these procedural reasons. But construing the facts in Castro’s favor, we
cannot conclude that the conviction was certainly overturned for procedural
reasons, and the district court therefore erred in not construing the facts in
the light most favorable to Castro.
Given Castro’s allegations that the defendants permitted him to
resume contact with his wife a few years after the 2013 IOC, that his 2019
disciplinary conviction was overturned, and that the charges against him
were false, and the absence of facts showing that the conviction was
overturned for procedural reasons, we conclude that the district court did not
accept Castro’s allegations as true and view them in the light most favorable
to Castro. See Walker, 938 F.3d at 735. Accordingly, we vacate and remand
as to the district court’s ruling on Castro’s First Amendment claim. As it
appears that Castro is no longer housed in either the Stiles or Hughes Units
where he alleged that the 2013 and 2019 incidents occurred, the district court
will be in a better position to determine the effect of his transfer on remand.
See Cooper v. Sheriff, Lubbock Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991).
IV.
Accordingly, the district court’s judgment is AFFIRMED in part,
VACATED in part, and REMANDED for further proceedings consistent
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with this opinion. Castro’s motion for the appointment of counsel is
DENIED.
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