Perez v. Livingston ( 2023 )

Case: 23-40219 Document: 00516982704 Page: 1 Date Filed: 11/29/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40219 FILED
Summary Calendar November 29, 2023
____________ Lyle W. Cayce
Clerk
Bobby Perez,
Plaintiff—Appellant,
versus
Brad Livingston, in his individual capacity; Kevin Moore,
Warden; Dr. Jessica Khan; Jane Does; John Doe; Sara
Hancock; Bryan Collier, Executive Director, Texas Department of
Criminal Justice, in his individual and official capacity; University of
Texas Medical Branch; Texas Department of Criminal
Justice; Bobby Lumpkin, Director, Texas Department of Criminal
Justice, Correctional Institutions Division, in his official capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CV-172
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40219 Document: 00516982704 Page: 2 Date Filed: 11/29/2023
No. 23-40219
Bobby Perez, Texas prisoner # 01117750, appeals the district court’s
grant of the defendants’ motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) and (6) and the concomitant dismissal of his 42 U.S.C.
§ 1983 suit. Review is de novo. Smith v. Hood, 900 F.3d 180, 184 (5th Cir.
2018). Dismissal under Rule 12(b)(1) is proper when a claim is barred by
immunity. See id. at 184-85. Dismissal under Rule 12(b)(6) is proper when a
complaint fails “to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). Perez shows no error in connection with the district
court’s judgment.
Because the record supports Perez’s assertion that he sued the
defendants in their official capacities only,1 we agree that the district court
should not have considered personal capacity claims and qualified
immunity;2 we thus decline to review the district court’s determinations as
to these issues. Perez cites nothing showing that the defendants waived their
Eleventh Amendment immunity with respect to § 1983 suits for money
damages and thus shows no error in the district court’s dismissal of his § 1983
claims for pecuniary relief. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
66, 71 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998); Lewis v.
UTMB, 665 F.3d 625, 630 (5th Cir. 2011).
Similarly, Perez shows no error in connection with the district court’s
conclusion that he had not shown actionable claims under the Americans
_____________________
1
On appeal, Perez asserts that the district court “misconstrued” his complaint as
raising claims against the defendants in their personal capacities and clarifies that
“Defendants have been sued in their official capacities and are therefore representing their
respective state agencies.” Similarly, in his “Amended Supplemental Complaint” Perez
specifies in several places that he is suing the defendants in their official capacities.
2
See Hernandez v. Spencer, 780 F.2d 504, 506 (5th Cir. 1986) (noting that a plaintiff
“is the master of his pleadings and, subject to the requirements of Rule 11, . . . may include
in them whatever claims he wishes”).
2
Case: 23-40219 Document: 00516982704 Page: 3 Date Filed: 11/29/2023
No. 23-40219
with Disabilities Act and the Rehabilitation Act because those laws do not set
forth standards of care for prisoners, nor are they infringed by a prison’s not
providing medical treatment to prisoners. See Hale v. Harrison Cty. Bd. of
Sup’rs, 8 F.4th 399, 404 n.† (5th Cir. 2021); Frame v. City of Arlington, 657
F.3d 215, 223-24 (5th Cir. 2011) (en banc); Pace v. Bogalusa City Sch. Bd., 403
F.3d 272, 287-88 (5th Cir. 2005). Insofar as he contends that the district
court erred by rejecting some of his claims under the doctrine of res judicata,
he is mistaken, as the record shows that none of his claims were dismissed
pursuant to this theory. Finally, because he has not shown that his case
presents extraordinary circumstances, we will not appoint counsel in this
appeal. See Delaughter v. Woodall, 909 F.3d 130, 140-41 (5th Cir. 2018). The
judgment of the district court is AFFIRMED, and the motion for appointed
counsel is DENIED.
3