Ruiz v. Price , 84 F. App'x 393 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10536
Summary Calendar
OSCAR RUIZ,
Plaintiff-Appellant,
versus
JOSEPH K. PRICE; STEVEN N. RICH; CAROLYN R. CORREA; GUSTAVO D.
VAQUERA; JIMMY O. BOWMAN; CHARLES R. ELLINGBURG; G. DAVIS;
MARISCAL Q.; DARRYL E. GLENN; BRIAN RODEEN; JANE M. COCKERHAM,
Texas Department Criminal Justice-Institutional Division Office
of Ombudsman; CRAIG FLOWERS, Texas Department of Criminal
Justice-Institutional Division Office of Ombudsman;
ADMINISTRATION; GRIEVANCE DEPARTMENT; TEXAS BOARD OF CRIMINAL
JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JANIE COCKRELL;
JOHN GILBERT; JAY LOWE; R. DUFFY; JOHN DOE; KEITH CLENDENNEN;
UNITED STATES POSTAL SERVICE; JOWERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-CV-00378
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Oscar Ruiz, Texas prisoner # 766772, appeals the dismissal of
his 42 U.S.C. § 1983 suit for failure to state a claim, as
frivolous, with prejudice to being asserted again until Heck v.
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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that this opinion should not be published and is not precedent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.
Humphrey, 512 U.S. 477, 487 (1994), conditions are met, and for
failure to exhaust administrative remedies. Ruiz argues that the
defendants violated his Eighth Amendment rights by failing to
protect him from assault when rival gangs were sent to recreate
together. He also argues that he may sue the Texas Board of
Criminal Justice (TBCJ) and the Texas Department of Criminal
Justice (TDCJ) for making unconstitutional policies because he is
not asking for money damages. He argues that he did not suffer
substantial injury only because he was able to defend himself
better than other prisoners. Ruiz argues that he was unable to
exhaust many of his claims because prison policy allows a prisoner
to file only one grievance per week. Finally, he argues that the
Heck rule should not have been applied because he did not complain
that he was wrongfully disciplined.
Ruiz has not addressed his claims against Nancy Jowers, the
Postal Service, Craig Flowers, Jane Cockerham, and Keith
Clendennen. He, therefore, has waived these arguments. See Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
The TDCJ and the TBCJ are instrumentalities of the State and
are immune from suit under the Eleventh Amendment. See Harris v.
Angelina County, Tex., 31 F.3d 331, 337 n.7 (5th Cir. 1994); see In
re Clements, 881 F.2d 145, 150 (5th Cir. 1989); see also Loya v.
Texas Dept. of Corrections, 878 F.2d 860, 861-62 (5th Cir. 1989).
It is immaterial that Ruiz is not suing TDCJ and TBCJ for money
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damages. See Will v. Michigan Dept. of State Police, 491 U.S. 58,
66 (1989).
Ruiz alleged that the unconstitutional policy was implemented
by TBCJ, not by any of the other defendants. Therefore, the
supervisory officials, Janie Cockrell, John Gilbert, Jay Lowe,
Joseph Price, Steven Rich, Brian Rodeen, and John Doe, may be held
liable only if they participated in the acts causing the
constitutional deprivation. See Baker v. Putnal, 75 F.3d 190, 199
(5th Cir. 1996). Ruiz did not allege that these defendants were
present during the prisoner altercation. Consequently, Ruiz failed
to state a claim upon which relief could be granted as to these
defendants. See id.Ruiz alleged that Charles Ellingburg, R. Duffy, Jimmy Bowman,
Carolyn Correa, Gustavo Vaquera, G. Davis, and Darryl Glenn were
present immediately before and/or during the gang fight, that each
had knowledge of the ongoing gang war, and that they either
participated in placing the two gangs together or did nothing to
stop the two gangs from coming together. We do not need to decide
whether Ruiz’s allegations state a non-frivolous claim upon which
relief may be granted against Ellingburg, Duffy, Bowman, Correa,
Vaquera, Davis, and Glenn because Ruiz has not shown that he is
entitled to the relief that he requests. Ruiz cannot receive
damages as relief against these defendants because he did not
allege a more-than-de-minimus injury. See 42 U.S.C. § 1997e(e);
Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). Moreover,
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Ruiz has not shown entitlement to his requested injunctive relief
against these defendants, i.e., their demotion. See Haitian
Refugee Ctr. v. Smith, 676 F.2d 1023, 1041 (5th Cir. Unit B 1982);
see also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977).
The district court’s judgment is AFFIRMED.
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