Newton v. Joseph et al

Filing 175

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that plaintiff's motion for summary judgment be denied and defendant's motion for summary judgment be granted and the case dismissed with prejudice. Signed by Judge Marcia A. Crone on 7/12/16. (mrp, )

UNITED STATES DISTRICT COURT

RONALD E. NEWTON,
Plaintiff,
versus
LATASHA JOSEPH, et al.,
Defendant.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:13-CV-510

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Ronald E. Newton, an inmate with the Mark Stiles Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 28 U.S.C. § 1983 against defendant
Latasha Joseph.1
The court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends plaintiff’s motion for summary judgment be denied and
defendant’s motion for summary judgment be granted and the case dismissed with prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Plaintiff
filed objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P.
72(b).
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Plaintiff’s claims against defendants Pille, Barrow, Apperson, Gorsuch, Wallace, and Massie were dismissed
by Partial Judgment on March 23, 2015.

After careful consideration, the court finds plaintiff’s objections are without merit. As
outlined by the Magistrate Judge, “[w]hile prison officials have the burden of showing that a
search of a prisoner is reasonable, the Fifth Circuit has described this burden as ‘light.’”
Waddleton v. Jackson, 445 F. App’x 808 (5th Cir. October 21, 2011). In analyzing the
reasonableness of searches, a district court is “required to balance the need for the searches against
the invasion of personal rights that the searches entailed by considering the scope of the intrusion,
the manner in which they were conducted, the justification for them, and the places in which they
were conducted.” Id. at 809. Even if defendant Joseph was mistaken in her belief that plaintiff
was entering a restricted chemical room without authorization, it was not unreasonable for
defendant Joseph to fear for the safety of herself or others when plaintiff entered the separate room
and closed the door, considering the security issues of a prison unit. Plaintiff’s own actions
created a situation that could be reasonably construed as an emergency situation justifying the strip
search to ensure plaintiff did not obtain any contraband. It is similarly not unreasonable for
defendant Joseph to deny plaintiff’s request for a male officer to conduct the strip search given the
perceived state of emergency. Conducting a strip search to ensure a prisoner is not in possession
of contraband in order to maintain the safety and security of a unit is related to TDCJ penological
interests. The Fourth Amendment only requires that searches be reasonable under all the facts and
circumstances in which they are performed. Even if other officers of reasonable competence could
disagree as to whether the search violated plaintiff’s Fourth Amendment rights, defendant Joseph’s
qualified immunity remains intact. Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

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Furthermore, the Texas Tort Claims Act forecloses any state tort claim brought by
plaintiff.2 Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a
government employee acting within the general scope of his employment must be dismissed “if
it could have been brought under this chapter [that is, under the Act], against the governmental
unit. Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011).3 Under the Franka rule, all tort
claims, including intentional torts, “could have been brought” against the governmental unit,
regardless of whether the governmental unit’s immunity from suit is expressly waived by the
Texas Tort Claims Act for those claims. Id. at 385. The statute strongly favors dismissal of
governmental employees. Tipps v. McCraw, 945 F. Supp.2d 761, 766 (W.D. San Antonio, 2013)
(citing Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App. 2005).

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Plaintiff complains the Magistrate Judge made inconsistent recommendations as it relates to plaintiff’s
common law tort claims. A review of the record, however, reveals there is no inconsistency in the rulings.
The Magistrate Judge initially denied the defendants’ 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction with respect to plaintiff’s common law tort claims as they relate to defendant Joseph (docket entry
no. 67). In the 12(b)(1) motion to dismiss, defendant Joseph argued the Texas Tort Claims Act specifically
provides that “[a] suit under this chapter shall be brought in state court in the county in which the cause of
action arose or a part of the cause of action arises” and that a “state does not waive its Eleventh Amendment
immunity in federal courts by waiving sovereign immunity in its own courts.” (docket entry no. 37). The
Magistrate Judge denied the 12(b)(1) motion stating that plaintiff did not plead the Texas Tort Claims Act nor
did plaintiff sue the State of Texas. In defendant Joseph’s Motion for Summary Judgment, however,
defendant Joseph argues plaintiff’s common law tort claims should be dismissed because they occurred in the
scope of defendant Joseph’s employment and could have been brought under the Texas Tort Claims Act
(docket entry no. 134). The Magistrate Judge recommended plaintiff’s motion for summary judgment be
granted as to plaintiff’s common law tort claims as Section 101.106(f) of the Texas Tort Claims Act bars a
suit against a government employee sued in his individual capacity if he was acting within the scope of his
employment (docket entry no. 170, pgs. 10 - 13).

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Section 101.106 states specifically,
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of
that employee’s employment and if it could have been brought under this chapter against the governmental
unit, the suit is considered to be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day
after the date the motion is filed.
TEXAS. CIV. PRAC. & REM. CODE § 101.106(f) (Texas Tort Claims Act).

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To the extent plaintiff argues there is a genuine dispute of material fact as to whether
defendant Joseph was acting within the general scope of her employment, this Court finds no
support for such argument. The Tort Claims Act defines “scope of employment” as “the
performance for a governmental unit of the duties of an employee’s office or employment and
includes being in and about the performance of a task lawfully assigned to an employee by a
competent authority.” Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App. – Houston [1st
Dist.] 2001, no pet.) (quoting TEX. CIV. PRAC. & REM. CODE § 101.001(5)). Liberally construing
plaintiff’s objections, it would appear plaintiff argues defendant Joseph acted outside the scope of
her employment because she had no authority to conduct a strip search on a male inmate absent
exigent circumstances. However, “[a]n official acts within the scope of her authority if she is
discharging the duties generally assigned to her.” Ballantyne v. Champion Builders, Inc., 144
S.W.3d 417, 424 (Tex. 2004). That is, an employee’s scope of authority extends to job duties to
which the official has been assigned, even if the official errs in completing the task. Id.
As outlined by the Magistrate Judge, performing a strip search is within the scope of
defendant Joseph’s employment as a TDCJ correctional officer. Although there is a factual dispute
as to whether defendant Joseph ordered plaintiff to a full strip search, those facts are not material.
Assuming, arguendo, plaintiff’s allegations were true and no emergency situation existed to
warrant the strip search by a female guard, plaintiff’s common law tort claims are still foreclosed
by the Texas Tort Claims Act. Even if defendant Joseph used forbidden means in conducting the
strip search, the search was still performed to serve the purpose of her employer and to maintain
the safety and security of the unit. Herrera v. Aguilar, et al., SA-10-CV-00569-DAE, 2013 WL
4784125, at *3 (W.D. Tex. – San Antonio 2013) (citing TEX. CIV. PRAC. REM. CODE §

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101.001(5)) (holding if the employee is employed to perform that kind of conduct, and it is at least
partly done with the purpose to serve the employer, the action is within the scope of employment
even if they use forbidden means of accomplishing the results). This is true even if the employee,
in discharging her duties, acts in part to serve the employee’s or a third party’s interest. Hopkins
v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302, at *3 (Tex. App. Mar. 21, 2013) (citing
Anderson, 365 S.W.3d at 125-26); see also Tipps v. McCraw, 945 F.Supp.2d 761 (W.D. Tex. –
San Antonio Div. 2013) (holding plaintiff’s state law intentional tort claims barred by the Texas
Tort Claims Act).
ORDER
Accordingly, the objections of the petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.

Signed this date.
Jul 12, 2016

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