Brigham v. The Texas Department of Criminal Justice et al

Filing 67

MEMORANDUM ORDER overruling objections and adopting 61 Report and Recommendation. Defts' 62 Motion to Strike is granted, and Pltf's 62 Motion for Extension of Time and 63 Objections are stricken from the record. Signed by Judge Ron Clark on 9/22/17. cc: Brigham (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JIMMY R. BRIGHAM, SR.,

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VS.

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TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, et al.,

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CIVIL ACTION NO. 1:15-CV-440

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Jimmy R. Brigham, an inmate formerly confined at the Eastham Unit with the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding with counsel,
filed the above-referenced civil rights action pursuant to 42 U.S.C. § 1983 against defendants.
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 defendants’ motion for summary judgment based on qualified
immunity be granted.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Plaintiff’s
counsel did not file objections to the Report and Recommendation. However, plaintiff filed a motion
for extension of time to file objection and objections. Defendants filed a motion to strike and a
response to the objections.
Motion to Strike
A Report and Recommendation was entered by the Magistrate Judge on August 3, 2017
(docket entry no. 61). As outlined above, plaintiff’s counsel did not file objections to the Report and
Recommendation. Plaintiff himself, however, did file a motion for extension of time to file
objections to the Report and Recommendation on August 16, 2017 (docket entry no. 62).
Defendants filed a Motion to Strike the Motion for Extension of Time and a Response in Opposition
on August 18, 2017 (docket entry nos. 63 & 64). Plaintiff then filed his objections on August 21,

2017 (docket entry no. 65).
Plaintiff has been represented by counsel since the inception of this case. Plaintiff has not
moved for withdrawal of counsel or otherwise suggested he is no longer represented by counsel.
Federal law permits parties to “plead and conduct their own cases personally or by counsel . . .” 28
U.S.C. § 1654. This statute has been interpreted by this District to mean that a civil litigant may
represent himself or be represented by counsel, but cannot have it both ways. See Diamond
Consortium, Inc., v. Manookian, 4:16-CV-094 (docket entry no. 225) (E.D. Tex. May 31, 2017)
(citing McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004)). “There is no right to hybrid representation
in the federal courts.” McCulloch, 364 F.3d at 5.
As argued by defendants, plaintiff’s pro se motion is an improper attempt to avail himself
of hybrid representation without authorization. Plaintiff offers no good cause as to why his counsel
of record did not file objections to the Report and Recommendation. This court must assume
counsel waived his right to object. Defendants’ Motion to Strike (docket entry no. 63) plaintiff’s
Motion for Extension of Time to File Objections and Objections is GRANTED. Plaintiff’s Motion
for Extension of Time to File Objections (docket entry no. 62) and Objections (docket entry no. 65)
are STRUCK from the record in this cause.
Objections
The court, in the alternative, considers and finds plaintiff’s objections lacking in merit. See
FED. R. CIV. P. 72(b) (this requires a de novo review of the objections in relation to the pleadings and
applicable law). Contrary to petitioner’s belief, the Magistrate Judge did not recommend that his
civil rights action be dismissed for failure to exhaust administrative remedies. The Magistrate Judge,
in fact, found that plaintiff did exhaust his administrative remedies with respect to his claims but
recommended plaintiff’s claims be dismissed based on qualified immunity.
Specifically, the Magistrate Judge found that plaintiff has failed to produce competent
summary judgment evidence that demonstrates defendants Morgan, Bowman, Jones, Hawkins,
Davis, West, and Holloway actually engaged in any conduct that violated a clearly-established right.
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As outlined by the Magistrate Judge, as evidence, plaintiff provided the sworn declaration of plaintiff
and several other inmates. Exhibits A, C-H (docket entry nos. 56-1, 56-3 thru 56-8). None of these
declarations, however, identify any of the defendants in this lawsuit as individuals who served peanut
butter to plaintiff on any specified date and time. On the present record, there is simply no evidence
of deliberate indifference on the part of any of the defendants in this lawsuit. Plaintiff cannot rest
on the allegations of his pleadings alone and has failed to create an issue of material fact. FED. R.
CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (citation omitted).
Defendants are entitled to qualified immunity. Furthermore, plaintiff’s request for injunctive relief
should be denied as plaintiff has failed to demonstrate he will actually prevail on the merits of his
claim. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987).
ORDER
Accordingly, plaintiff’s objections 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 accordance with the recommendations of the Magistrate Judge.
So ORDERED and SIGNED this 22 day of September, 2017.

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Ron Clark, United States District Judge

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