Walker et al v. Beaumont Independent School District et al

Filing 300

ORDER ON REPORT AND RECOMMENDATION. Judge Giblin's 296 Report and Recommendation is adopted in its entirety. The Walker Plaintiffs' Objections 298 are overruled. The court further orders that the Federal Defendants' motion to d ismiss 21 is granted. Furthermore, because this order dispenses with all of Plaintiffs' claims remaining against Bob Rawls, Deanna Stevens, and Timothy Brewer, these defendants are dismissed as parties to this case. All parties are advised t hat this order is merely a memorandum order on the Federal Defendants' motion to dismiss and does not constitute a final judgment for purposes of appeal. The court will enter final judgment in this case once the court considers the remaining outstanding motions. Signed by Judge Marcia A. Crone on 3/28/17. (mrp, )

UNITED STATES DISTRICT COURT

CALVIN GARY WALKER,
WALKER’S ELECTRIC, WALKERS
ELECTRIC, and JESSIE HAYNES,
Plaintiffs,
versus
BEAUMONT INDEPENDENT
SCHOOL DISTRICT, AARON
COVINGTON, LEROY SALEME, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:15-CV-379

ORDER ON REPORT AND RECOMMENDATION
Pending before the court is Magistrate Judge Keith Giblin’s Report and Recommendation
(#296) on Defendants Bob Rawls (“Rawls”), Deanna Stevens (“Stevens”), and Timothy Brewer’s
(“Brewer”) (collectively, the “Federal Defendants”) Motion to Dismiss for Lack of Subject Matter
Jurisdiction, for Failure to State a Claim, and for Insufficient Service of Process (#211). The
court referred this matter to United States Magistrate Judge Keith F. Giblin for consideration and
recommended disposition of case-dispositive pretrial motions (#55). On March 3, 2017, Judge
Giblin issued the instant report and recommendation, in which he recommended that the court
grant the Federal Defendants’ motion. Plaintiffs timely filed objections (#298) to the magistrate
judge’s report and recommendation. The court has reviewed those objections and concluded that
they are without merit.

I.

Discussion
A party who files timely, written objections to a magistrate judge’s report and

recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(l)(c); FED. R. CIV. P. 72(b)(2)–(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc); accord Bank of
America, N.A. v. Ingram, No. 1:12-cv-55, 2012 WL 2524274, at *1 (E.D. Tex. June 29, 2012);
Flynn v. State Farm Fire & Cas. Ins. Co. (Tex.), 605 F. Supp. 2d 811, 813 (W.D. Tex. 2009);
Savage v. Barnhart, 372 F. Supp. 2d 922, 924 n.1 (S.D. Tex. 2005). Here, the court has
undertaken a de novo review of the report and recommendation and concludes that the objections
must be overruled.
First, as noted by the magistrate judge, Plaintiff Jessie Haynes (“Haynes”) voluntarily
dismissed all claims against the Federal Defendants (#265).

Accordingly, the report and

recommendation pertained only to the claims of Plaintiffs Calvin Gary Walker (“Walker”) and his
two companies, Walker’s Electric and Walkers Electric (collectively, the “Walker Plaintiffs”).
Regarding the objections themselves, the Walker Plaintiffs first oppose the dismissal of any
official-capacity claims against Rawls, asserting that, under Texas law, official-capacity claims are
not treated as a suit against the government when an employee is sued for an ultra vires act. The
magistrate judge found that the Walker Plaintiffs’ claims against Rawls in his official capacity as
a federal prosecutor must be dismissed because such claims must be treated as claims against the

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United States, and the Walker Plaintiffs had identified no waiver of sovereign immunity. See Todd
v. Hank, 263 F.3d 162, 162 (5th Cir. 2001) (citing Kentucky v. Graham, 473 U.S. 159, 165-67
(1985)). The Walker Plaintiffs now maintain that sovereign immunity does not prohibit their
claims against Rawls in his official capacity because they have successfully pleaded the ultra vires
exception to governmental immunity under Texas law. See Houston Belt & Terminal Ry. Co. v.
City of Houston, 487 S.W.3d 154, 161 (Tex. 2016).
The Walker Plaintiffs’ objection is misguided, however, as Rawls is a federal employee.
Accordingly, the Walker Plaintiffs are required to identify a waiver of the sovereign immunity of
the United States, not the State of Texas. Texas law’s ultra vires exception to state sovereign
immunity is irrelevant to this issue. See Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d
384, 393 (Tex. 2011) (“A suit against a state official for acting outside his authority is not barred
by sovereign immunity.”) (emphasis added). Therefore, this objection is overruled.
Next, the Walker Plaintiffs assert that the magistrate judge should not have granted Rawls
absolute immunity from the Walker Plaintiffs’ state law claims pursuant to 28 U.S.C.
§ 2679(b)(1). The Walker Plaintiffs’ objection essentially repeats the argument they made before
the magistrate judge, and, after de novo review of the issue, the court concurs with the magistrate
judge’s analysis and conclusions.1 This objection is also overruled.
Third, the Walker Plaintiffs assert that Stevens and Brewer should not be afforded absolute
immunity under 28 U.S.C. § 2679(b)(1) because several of their alleged acts were illegal, ultra

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As to the Walker Plaintiffs’ argument that some of Rawls’s actions were taken after Walker was
found not guilty of fraud, the court would clarify that Walker’s federal criminal prosecution resulted in
a mistrial and subsequent plea agreement. According to Plaintiffs’ own complaint and government records
available to the court, Walker was never found not guilty or acquitted of fraud.

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vires acts. Again, the ultra vires exception to governmental and sovereign immunity under Texas
law does not address the immunity of federal employees under federal law. This objection is
overruled.
Fourth, the Walker Plaintiffs argue that Rawls should not be granted prosecutorial
immunity from claims asserted under the Racketeering Influenced and Corrupt Organizations Act
(“RICO”) because his acts of tortious interference and defamation against Walker were not taken
pursuant to his role as a prosecutor. Nonetheless, as the court has held numerous times previously
in this case, tortious interference and defamation are not RICO predicate acts. The magistrate
judge’s findings of prosecutorial immunity did not pertain to those state common law claims, but
to the Walker Plaintiffs’ RICO claims. Moreover, the court finds that the magistrate judge
correctly found that Rawls’s encouragement of Beaumont Independent School District (“BISD”)
to seek restitution against Walker was associated with his role as a judicial officer. Stone v.
Fahey, No. 4:13-CV-332-A, 2013 WL 3356399 at *3 (N.D. Tex. July 3, 2013) (extending
prosecutorial immunity to restitution orders). The Walker Plaintiffs’ further assertion that Rawls
did so despite BISD’s own finding that Walker had not defrauded it and Walker’s own
recommendation that BISD not seek restitution does not change the appropriateness of
prosecutorial immunity. Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987) (explaining that a
prosecutor is entitled to absolute immunity even when he acts maliciously, wantonly, or
negligently); accord Rodriguez v. Lewis, 427 F. App’x 352, 353 (5th Cir. 2011). Thus, this
objection is overruled.
Finally, the Walker Plaintiffs object to the magistrate judge’s finding that Stevens and
Brewer are entitled to qualified immunity against the Walker Plaintiffs’ RICO claims because the

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Walker Plaintiffs failed to assert any RICO claims. The Walker Plaintiffs’ objections repeat their
arguments made before the magistrate judge, and the court finds that the magistrate judge correctly
analyzed these issues.2 Accordingly, the objections are overruled.
II.

Conclusion and Order
For the foregoing reasons, the court ORDERS that Judge Giblin’s Report and

Recommendation (#296) is ADOPTED in its entirety. The Walker Plaintiffs’ Objections (#298)
are OVERRULED. The court further ORDERS that the Federal Defendants’ motion to dismiss
(#211) is GRANTED, as set forth in the report and recommendation.
Furthermore, because this order dispenses with all of Plaintiffs’ claims remaining against
Bob Rawls, Deanna Stevens, and Timothy Brewer, these defendants are DISMISSED as parties
to this case.
All parties are advised, however, that this order is merely a memorandum order on the
Federal Defendants’ motion to dismiss and does not constitute a final judgment for purposes of
appeal. The court will enter final judgment in this case once the court considers the remaining
outstanding motions.

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With respect to the Walker Plaintiffs’ assertion that they requested injunctive relief against all
defendants, including the Federal Defendants, this is not accurate. The issue of whether the Fourth
Amended Complaint requested injunctive relief was addressed and rejected by the magistrate judge in a
prior report and recommendation, which was then adopted by this court. Doc. Nos. 263, 276.

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SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 28th day of March, 2017.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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