Smith v. Jaramillo

Filing

UNPUBLISHED OPINION FILED. [08-50821 Affirmed] Judge: WG , Judge: ECP , Judge: CH. Mandate pull date is 10/01/2010 [08-50821]

Smith v. Jaramillo

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Case: 08-50821

Document: 00511230564

Page: 1

Date Filed: 09/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-50821 S u m m a r y Calendar September 10, 2010 Lyle W. Cayce Clerk

J A M E S RUSSELL SMITH, P la in t if f -A p p e lla n t v. M A R I S S A JARAMILLO, CORRECTIONS OFFICER III, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:05-CV-713

B e fo r e GARWOOD, PRADO, and HAYNES, Circuit Judges. P E R CURIAM:* J a m e s Russell Smith, Texas prisoner # 620944, appeals the district court's ju d g m e n t dismissing his 42 U.S.C. § 1983 suit. Smith brought suit against s e v e r a l named and unnamed prison officials, alleging that the officials violated h is equal protection rights by denying him admission into the Gang R e n u n c ia t io n and Disassociation (GRAD) Program based on his race; that they fa ile d to protect him from attacks by various gang members, in violation of the E ig h t h Amendment; and that they failed to follow rules and policies of the Texas
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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D e p a r t m e n t of Criminal Justice (TDCJ) with respect to protecting him from a s s a u lt. With the exception of the claims against Marissa Jaramillo, the district c o u r t dismissed certain claims as frivolous or for failure to state a claim p u r s u a n t to 28 U.S.C. § 1915, and the remaining claims on summary judgment. The case proceeded to trial against Jaramillo, with a verdict in her favor. Smith c h a lle n g e s the pretrial dismissals as well as various procedural rulings and an e v id e n t ia r y ruling at trial. Finding no error, we affirm.1 A dismissal under§ 1915(e) for failure to state a claim upon which relief m a y be granted is reviewed under the same de novo standard as a dismissal u n d e r FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1 9 9 8 ). The dismissal of a complaint as frivolous typically is reviewed for abuse o f discretion; however, where the district court also finds that the complaint fails t o state a claim it is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5 t h Cir. 2005). We review a grant of summary judgment de novo. Cousin v. S m a ll, 325 F.3d 627, 637 (5th Cir. 2003). S m it h first argues that the district court erred by dismissing his equal p r o t e c t io n claims regarding the GRAD Program and failed to enter an order of d is m is s a l. We find no error. The court dismissed all claims based on equal p r o t e c t io n and following the trial entered a judgment dismissing the case. Further, the record supports the dismissal. Smith failed to identify any

in d iv id u a ls responsible for denying him admission into the GRAD Program. See

The record presents a potential jurisdictional issue which we must address first sua sponte. Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). In the court below, a Magistrate Judge presided over the jury trial and entered judgment. See 28 U.S.C. § 636(c) ("Upon the consent of the parties, a full-time United States magistrate . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case. . . ."). However, Smith executed an ambiguous consent form. Nevertheless, neither Smith nor his appointed attorney objected to further appearances before the magistrate judge, including a two-day jury trial. Therefore, we hold that Smith impliedly consented because both Smith and his counsel were aware of the need for consent and the right to refuse it, had ample opportunity to object, and still voluntarily appeared to try the case before the Magistrate Judge. See Roell v. Withrow, 123 S. Ct. 1696, 1703 (2003).

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M u r p h y v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992). Rather, he named only J o h n Does. Even if Smith had been able to identify the John Does through d is c o v e r y , as he contends, Smith's allegations and the record evidence fail to s h o w an equal protection violation by any defendant, named or unnamed. See A d k in s v. Kaspar, 393 F.3d 559, 566 (5th Cir. 2004). With respect to Smith's failure to protect claims, Smith was required to s h o w that he was "incarcerated under conditions posing a substantial risk of s e r io u s harm and that prison officials were deliberately indifferent to his need fo r protection." Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). A prison o ffic ia l acts with deliberate indifference "only if he knows that inmates face a s u b s t a n t ia l risk of serious harm and disregards that risk by failing to take r e a s o n a b le measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). A c tu a l knowledge and appreciation of the risk are required. Id. at 837-38. We h a v e reviewed the record and arguments and we agree with the district court t h a t the defendants were entitled to dismissal of these claims. Smith next argues that the district court erred by entering a protective o r d e r staying discovery. We review for abuse of discretion. See Krim v.

B a n c T e x a s Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). As a threshold m a t t e r , we reject the defendants' contention that we lack jurisdiction to review t h e discovery ruling. It is true that discovery orders are ordinarily not

im m e d ia te ly appealable because they do not constitute final judgments. Goodman v. Harris Cnty., 443 F.3d 464, 467 (5th Cir. 2006). However,

in t e r lo c u t o r y rulings may be reviewable once a final judgment has been r e n d e r e d . See Trust Co. of La. v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir. 1 9 9 7 ); Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999). Nevertheless, we discern no reversible error. The defendants provided s ig n ific a n t amounts of documents and information to Smith voluntarily; Smith m a d e no further efforts to pursue discovery; and Smith offers only conclusory a s s e r t io n s regarding how the discovery was necessary to his case. There was no 3

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a b u s e of discretion. See Krim, 989 F.2d at 1444; Paul Kadair, Inc. v. Sony Corp. o f America, 694 F.2d 1017, 1031-32 (5th Cir. 1983). Next, Smith contends that the court erred by excluding a certain document h e wished to use to impeach Jaramillo. A district court's decision to exclude e v id e n c e is reviewed for an abuse of discretion; however, even if an abuse of d is c r e t io n is found, this court looks to whether the error affected a substantial r ig h t , i.e., was harmless. See Munn v. Algee, 924 F.2d 568, 571, 573 (5th Cir. 1 9 9 1 ). Contrary to Smith's assertion, the record shows that the district court a d m it t e d the first four pages of the contested document, which contained p u r p o r t e d ly damaging information about Jaramillo regarding an investigation. Jaramillo testified about that information both on direct and cross-examination. To the extent that Smith contends that the court erroneously excluded evidence o f an overheard telephone conversation, our review of that evidence and the r e c o r d persuades us that any error was harmless in light of the other evidence r e g a r d in g Jaramillo's credibility and the unrebutted testimony of an investigator fr o m the Office of the Inspector General finding no evidence to support Smith's c la im s against Jaramillo. Finally, Smith does not challenge the district court's dismissal of his c la im s based on failure to follow TDCJ policies. He has thus abandoned that c la im . See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). In any case, t h e district court's ruling was correct. See Edwards v. Johnson, 209 F.3d 772, 7 7 9 (5th Cir. 2000). For the foregoing reasons, the judgment of the district court is A F F IR M E D .

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