Derek Montez v. Cody Hampton , 595 F. App'x 418 ( 2015 )

Case: 13-20331 Document: 00512954302 Page: 1 Date Filed: 03/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20331 FILED
Summary Calendar March 2, 2015
Lyle W. Cayce
Clerk
DEREK WAYNE MONTEZ,
Plaintiff-Appellant
v.
CODY HAMPTON; CLARA ANDERSON; BRUCE BAGGETT; DONNA
CURTIS; TIFFANY TOMKAVITIS; BRITTANY TURNER; LONNIE E.
TOWNSEND; TONY O’HARE; THOMAS PIERCE; VERNON PITTMAN;
OFFICE OF THE ATTORNEY GENERAL (TEXAS),
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-1891
Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
Derek Wayne Montez, Texas prisoner # 1434316, filed a pro se 42 U.S.C.
§ 1983 complaint against Lieutenant Cody Hampton, Officer Clara Anderson;
Captains Bruce Baggett and Lonnie E. Townsend, Counsels Substitute Donna
Curtis, Tiffany Tomakavitis, and Brittany Turner, Assistant Warden Thomas
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-20331
Pierce, and Wardens Tony O’Hare and Vernon Pittman. He contested several
disciplinary convictions against him while he was incarcerated in the Wynne
Unit of the Texas Department of Criminal Justice-Correctional Institutions
Division (TDCJ-CID).
The district court sua sponte dismissed the claims against the counsels
substitute. The Attorney General (AG) moved for summary judgment on
behalf of Baggett, Anderson, Townsend, O’Hare, and Pittman. The AG did not
obtain authority to represent Pierce and Hampton because they were no longer
employed by the TDCJ, and Montez moved for default judgment against them
after they did not answer or otherwise appear.
The district court granted summary judgment in favor of the defendants
represented by the AG and determined that Pierce was entitled to summary
judgment because there was no cause of action against him. The district court
could not resolve the claims against Hampton and denied without prejudice
the motion for default against him. Although Montez filed a premature notice
of appeal from the order granting summary judgment to the defendants, we
have jurisdiction over the appeal because the district court later disposed of all
outstanding claims. See Young v. Equifax Credit Info. Servs., Inc., 294 F.3d
631, 634-35 & n.2 (5th Cir. 2002).
The district court thereafter entered default judgment against Hampton
after he did not appear. The district court awarded Montez nominal and
punitive damages. He did not appeal from the default judgment and, thus, any
claims regarding Hampton or the amount of damages awarded are not before
us. See Bowles v. Russell, 551 U.S. 205, 214 (2007).
We review the grant of summary judgment de novo. Nickell v. Beau View
of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment shall
be granted if the movant establishes that there is no genuine dispute as to any
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No. 13-20331
material fact and that the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a). Because the defendants raised the defense of qualified
immunity, Montez must establish (1) that the defendants’ conduct violated a
constitutional right and (2) that the constitutional right at issue was clearly
established so that a reasonable official in the defendant’s situation would have
understood that his conduct violated that right. Pearson v. Callahan, 555 U.S.
223, 232 (2009).
Montez maintains that Baggett violated his due process rights at the
disciplinary hearings and became responsible for Hampton’s unconstitutional
acts by convicting Montez of charges that were not supported by the evidence
and which were brought on account of Hampton’s retaliatory intent. However,
none of the punishments that Montez received as a result of his disciplinary
convictions – i.e., solitary confinement, change in custodial classification, and
forfeiture of good-time credits that affected his parole eligibility – implicates a
protected liberty interest; thus, Montez cannot allege a due process claim with
respect to his disciplinary proceedings. See Sandin v. Conner, 515 U.S. 472,
484 (1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v.
Parker, 104 F.3d 765, 767 (5th Cir. 1997). To the extent that he alleges that
Baggett is responsible for Hampton’s conduct based on a theory of respondeat
superior or supervisory liability, he has not asserted that Baggett was involved
in implementing a policy or custom that violated his constitutional rights and
was the moving force of a constitutional violation; thus, he has not raised a
genuine issue of material fact as to whether Baggett violated a constitutional
right. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002); FED. R. CIV.
P. 56(a); Pearson, 555 U.S. at 232, 236. Accordingly, the district court did not
err in granting Baggett summary judgment. See Pearson, 555 U.S. at 232, 236;
FED. R. CIV. P. 56(a).
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Montez asserts that O’Hare and Pierce sanctioned Hampton’s retaliation
and Baggett’s due process violations by failing to overturn his convictions or
take other remedial action in response to the grievances that he filed regarding
the disciplinary hearings. However, any failure by O’Hare and Pierce to rectify
any error or misconduct that arose during the disciplinary hearings does not
amount to a constitutional violation. See Geiger v. Jowers, 404 F.3d 371, 374
(5th Cir. 2005). To the extent that Montez suggests that his claims against
O’Hare and Pierce are based upon their adoption of a policy or practice that
enabled a constitutional violation, he has failed to identify a policy or custom
that they endorsed or to assert a failure to train or supervise; his conclusory
allegations do not raise a genuine issue of material fact. See Oliver, 276 F.3d
at 742; Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009); Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Thus, the
district court did not err in granting O’Hare and Pierce summary judgment.
See Pearson, 555 U.S. at 232, 236; FED. R. CIV. P. 56(a).
Montez also argues that the district court wrongly denied his motion for
default judgment against Pierce. However, Montez was not entitled to default
judgment merely because Pierce did not respond, see Ganther v. Ingle, 75 F.3d
207, 212 (5th Cir. 1996), and Pierce was entitled to the benefit of the defenses
raised by the defendants who moved for summary judgment and established
that Montez failed to assert a cause of action, see Lewis v. Lynn, 236 F.3d 766,
768 (5th Cir. 2001). Accordingly, the district court did not abuse its discretion
by refusing to enter default judgment. See id. at 767.
To the extent that Montez raised claims other claims in the district court,
he has abandoned them by failing to brief them. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.
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