Covarrubias v. Wallace et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 30 Report and Recommendations, and denying 29 Motion for Leave to Appeal filed by Jaime Covarrubias and 28 Motion for Reconsideration filed by Jaime Covarrubias. Signed by Judge Michael H. Schneider on 3/6/13. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JAIME COVARRUBIAS

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v.

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VICTORIA WALLACE, ET AL.

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CIVIL ACTION NO. 6:12cv156

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON PLAINTIFF’S MOTION TO AMEND PARTIAL JUDGMENT
The Plaintiff Jaime Covarrubias, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges.
Covarrubias complained of an alleged use of force incident which occurred on April 26,
2010. After an evidentiary hearing, the Magistrate Judge ordered three of the Defendants, Wallace,
Obrigbo, and Wilson, to answer the lawsuit, and recommended that the remaining Defendants be
dismissed. This recommendation was adopted by the Court on November 6, 2012.
Covarrubias then filed a motion for reconsideration of this decision. He also asked that he
be allowed to take an interlocutory appeal. On February 4, 2013, the Magistrate Judge issued a
Report recommending that Covarrubias’ motion be denied. The Magistrate Judge also recommended
that leave to take an interlocutory appeal be denied. Covarrubias filed objections to the Report on
February 25, 2013.
In his objections, Covarrubias first complains that some of his claims were not addressed.
The first of these allegedly unaddressed claims is that Obrigbo and Wilson were deliberately
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indifferent to his safety, although he concedes that the Magistrate Judge addressed his claim that
these defendants assisted Wallace in the use of force. These two contentions are essentially
coterminous. This objection is without merit.
Second, Covarrubias argues that he is raising a Fourth Amendment claim. He acknowledges
that this is not a reference to the use of force itself; instead, Covarrubias argues that “a correctional
officer should not be allowed to unreasonably stop an offender with the intent of harassing or hurting
the prisoner.” The Fourth Amendment’s protections against unreasonable searches and seizures,
which is already significantly limited in the prison setting, see Elliott v. Lynn, 38 F.3d 188, 190-91
(5th Cir. 1994), does not extend so far. Covarrubias’ claim on this point is without merit.
Covarrubias next states that the defendants Gladney and Chamberlain were deliberately
indifferent to his safety by not radioing for help or yelling at Wallace to stop using excessive force.
A statement by Officer Chamberlain said that she did not see anything, and Officer Gladney did radio
for help when she saw Wallace struggling with Covarrubias. Even assuming that that Chamberlain
did see the incident, as Covarrubias maintains, he has failed to set out a cause of action for deliberate
indifference because he has not shown that Chamberlain and Gladney, who were in the picket, knew
of and disregarded an excessive to Covarrubias’ health or safety; the fact that they may have seen
a struggle between Wallace and Covarrubias does not by itself show such knowledge. Similarly,
Covarrubias has not set out a claim of bystander liability against Chamberlain or Gladney because
such a claim requires that the officer (1) knows that a fellow officer is violating an individual's
constitutional rights, (2) has a reasonable opportunity to prevent harm, and (3) chooses not to act.
See Randall v. Prince George's County, Maryland, 302 F.3d 188, 203-04 (4th Cir.2002). Covarrubias
has not shown that Gladney or Chamberlain knew that Wallace was violating Covarrubias’
constitutional rights . These objections are without merit.
Covarrubias appears to allege that Sgt. Johnson is the “John Doe” defendant whom he says
failed to monitor his subordinates. Covarrubias stated that Johnson had left the area before the use
of force occurred, and the first Report by the Magistrate Judge concluded that Johnson was not
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deliberately indifferent to Covarrubias’ safety. Covarrubias has failed to set out a claim against
Johnson based on a theory of failure to train or supervise. His objection on this point is without
merit.
Next, Covarrubias asserts that the crux of his conspiracy claim is the allegation that he was
the victim of retaliation, apparently asserting that the object of the conspiracy was to diminish his
chances of obtaining relief for a constitutional violation. He also contends that the intra-corporate
conspiracy doctrine does not bar a claim when employees act out of individual motivations, citing
a district court case from Oklahoma, but as the Magistrate Judge stated, the weight of authority in
the Fifth Circuit is that the intra-corporate conspiracy doctrine does apply when defendants who are
part of the same entity are sued in their individual capacities. This objection is without merit.
Covarrubias also asserts that the Magistrate Judge erred by focusing on the punishment
imposed at the disciplinary hearing, arguing that “when a person is punished for exercising a
constitutional right a liberty interest is implicated.” Covarrubias overlooks the Supreme Court’s
holding in Sandin v. Conner, 115 S.Ct. 2293, 2301 (1995), instead citing Walton v. Alexander, 44
F.3d 1297 (5th Cir. 1997), a case holding that a state school for the deaf had no constitutional duty
to protect a voluntary resident from assault by a fellow student. Besides being off point, Walton predates Sandin. This objection is without merit.
Covarrubias next argues that his grievances provided the Defendants with “sufficient
information to engender personal involvement” and that the failure on the part of the grievance
personnel to “grasp the implications of the internal inconsistencies in their subordinates’ submissions
raises a reasonable inference that they acquiesced in their contrivances to occult [sic] the truth.”
Although Covarrubias engages in convoluted reasoning to argue otherwise, his complaint on this
point is in essence that he filed grievances which were not resolved to his satisfaction, and so the
Defendants should be personally liable because his grievances gave them the needed information and
the Defendants should have believed what Covarrubias told them instead of what the officers
reported. Covarrubias’ objection on this point is without merit.
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Finally, Covarrubias objects to the Magistrate Judge’s recommendation that he be denied
leave to file an interlocutory appeal. He has not shown that the order of partial dismissal involves
a controlling question of law as to which there is substantial ground for difference of opinion, nor
that an immediate appeal of the order would materially advance the ultimate termination of the
litigation. This objection is without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such review, the
Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
.
Judge (docket no. 30) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for reconsideration (docket no. 28) is hereby DENIED.
Finally, it is
ORDERED that the Plaintiff’s motion for leave to take an interlocutory appeal (docket no.
29) is DENIED.
It is SO ORDERED.
SIGNED this 6th day of March, 2013.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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