Covarrubias v. Foxworth et al

Filing 96

MEMORANDUM ORDER adopting 86 Report and Recommendation. Ordered that the above-styled civil action is severed into three separate lawsuits, encompassing each of the three named Defendants remaining in the case. Cause no. 6:13cv812 shall consist o f the heat claim against Warden Berger, the case which is the primary subject of this Order. The amended complaint (docket no. 39) shall be the operative pleading in each of the new cases. Ordered that the Defendant's 74 motion for summary judgment is granted. Ordered that under the unique circumstances of this case, the filing fees shall be waived for the new cases.. Signed by Judge Ron Clark on 3/29/2017. (bjc, )

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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TODD FOXWORTH, ET AL.

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CIVIL ACTION NO. 6:13cv812

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANT WARDEN BERGER’S MOTION FOR SUMMARY JUDGMENT
AND ORDER OF SEVERANCE AND FINAL 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. 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. The remaining Defendants in the case are Warden Larry Berger, Warden
Todd Foxworth, and former Officer Brenda Mapps. This Memorandum Opinion concerns the
motion for summary judgment filed by the Defendant Warden Berger.
I. Background
The remaining claims in the lawsuit are an unlawful strip search by Officer Mapps, unlawful
sleep deprivation, and exposure to excessive heat. Warden Berger, the defendant identified for the
heat claim, filed a motion for summary judgment arguing that Covarrubias failed to exhaust his
administrative remedies on this claim.
The summary judgment evidence showed that Covarrubias filed a grievance, which received
no. 2013210333, complaining that for many months he had been subjected to excessive heat, but the
grievance was rejected as untimely. He also filed grievance no. 2013172973, complaining of
exposure to heat, but he did not receive a response to the Step Two appeal of this grievance until
after the lawsuit was filed. In grievance no. 2013206806, Covarrubias raised 16 different issues,
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including heat exposure, but in accordance with TDCJ policy requiring that only one issue be raised
per grievance, only the first issue raised, concerning a lack of hot water in his cell, received a
response. The Step Two appeal of this grievance was provided after the lawsuit was filed.
Covarrubias complained of heat and inadequate ventilation in grievance no. 2014140970, but this
grievance was prepared after the lawsuit was filed.
Warden Berger argued in his motion for summary judgment that under the Fifth Circuit’s
strict exhaustion standard, neither a grievance which is rejected as untimely nor completion of the
grievance procedure after the lawsuit is filed serve to exhaust administrative remedies.
In his response, Covarrubias argued: (1) he exhausted his administrative remedies prior to
filing his amended complaint; (2) his grievance was not untimely because it concerned an ongoing problem; (3) the Defendants have had ample opportunity to address the problem; and (4)
the court has discretion to determine that the two-day gap between the filing of his lawsuit and
the return of his Step Two grievance is inconsequential or that the claim was exhausted upon the
filing of the amended complaint.
II. The Magistrate Judge’s Report
Upon review of the pleadings and the summary judgment evidence, the Magistrate Judge
issued a Report stating that prisoners are required to exhaust administrative remedies before filing
suit and that prisoners must comply with all administrative deadlines and procedural rules, including
the time deadlines. District courts have no discretion to excuse a prisoner’s failure to properly
exhaust the grievance procedure before filing suit.
The Magistrate Judge stated that Covarrubias’ untimely grievance did not serve to exhaust
administrative remedies and that the grievance process for his other complaints was not completed
until after the lawsuit was filed. An amended complaint will not typically cure the failure to exhaust
administrative remedies prior to initially filing suit. The Magistrate Judge therefore recommended
that Warden Berger’s motion for summary judgment be granted and this claim dismissed.

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III. Covarrubias’ Objections
In his objections, Covarrubias contends that he was not timely notified of an extension of
time to respond to grievance no. 2013172973. He states that the rejection of his grievance as
untimely was improper because the grievance described a situation that transpired within the
grievable time period. He contends that he was on 11 Building, exposed to excessive heat from
July 11 to August 12, 2013, and filed his grievance on August 22, 2013, within the 15-day
deadline for filing grievances.
Covarrubias’ grievance reads in pertinent part as follows: “For many months now
Administration has been using 11 Building, Transient, PHD [pre-hearing detention] and solitary
cells to house close custody overflow. It was during one of these 30-day stays that I experienced
and observed this predicament.” Although the grievance form instructs prisoners to “state who,
what, when, where, and the disciplinary case number if appropriate,” Covarrubias’ grievance says
nothing about dates or gives any indication of when Covarrubias was allegedly exposed to the
condition complained of; it particularly does not state that Covarrubias had just recently been
released from the building. Covarrubias has failed to show that his grievance was improperly
rejected as untimely when every indication from the face of the grievance showed that it was in fact
untimely. This objection is without merit. See also Gomez v. Hill, 87 F.App’x 374, 2004 U.S. App.
LEXIS 2540, 2004 WL 298564 (5th Cir., February 17, 2004) (rejecting claim that prisoner should
be excused from the exhaustion requirement because the denial of his grievance as untimely was
erroneous).
Next, Covarrubias states that he received a notice of extension on October 7, 2013, for
grievance no. 2013172973, but the due date for return of the Step Two grievance was September 26,
2013. He states that “Berger failed to properly request and notify of an extension and Plaintiff was
entitled to rely on this failure in proceeding to the next step - a 42 U.S.C. §1983 complaint.”

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The notice of extension to which Covarrubias points is dated September 20, 2013 (docket
no. 1-2, p. 9). A hand-written note at the top appears to read “rec’d 10-7/13,” although the date
appears to have been written over something else.
Even assuming that Covarrubias is correct, and that the grievance response was due on
September 26, 2013 and he received the notice of extension until October 7, this nonetheless does
not excuse the exhaustion requirement. Covarrubias signed his lawsuit on October 9, 2013, meaning
that he already had notice of the extension at the time he filed the lawsuit. The Fifth Circuit has
stated:
[D]istrict courts have no discretion to excuse a prisoner's failure to properly exhaust
the prison grievance process before filing their complaint. It is irrelevant whether
exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is
mandatory, and the case must be dismissed if available administrative remedies were
not exhausted.
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
At the time Covarrubias signed his lawsuit, he was aware that the process for this grievance
was still on-going. He failed to comply with the mandatory requirement of pre-filing exhaustion.
His objection on this point is without merit.
Third, Covarrubias argues that his amended complaint is a “filing of a complaint” for
exhaustion purposes. He contends that his amended complaint is an “entirely new document - the
functional equivalent of filing a new complaint.” The Fifth Circuit has upheld a district court’s
dismissal of claims in an amended complaint which were not exhausted at the time of the filing of
the original complaint. Rankin v. Pearson, 612 F.App’x 204, 2015 U.S. App. LEXIS 7378 (5th Cir.,
May 4, 2015). This comports with the holding in Gonzalez that pre-filing exhaustion is mandatory.
Under Covarrubias’ interpretation, prisoners could freely file suit prior to exhausting administrative
remedies and amend their complaints as their claims became exhausted. This is plainly contrary to
Gonzalez and to the Supreme Court’s explanation in Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct.
2378, 165 L.Ed.2d (2006) that exhaustion serves the purposes of allowing agencies to correct their

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own mistakes prior to coming to court and permitting resolution in a quicker and more economic
fashion than litigation in federal court. Covarrubias’ objections are without merit.
IV. Severance
This lawsuit currently contains three claims that are wholly unrelated and which name
different defendants. Fed. R. Civ. P. 18 allows a plaintiff to join either as independent or as alternate
claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.”
Rule 20, Fed. R. Civ. P., allows the joinder of several parties if the claims arose out of a single
transaction and contain a question of fact or law common to all defendants.
Covarrubias’ claims do not share common defendants and did not arise out of a single
transaction; in fact, they are wholly unrelated. As such, they are properly pursued in separate
lawsuits. See, e.g., Nelson v. Francis, civil action no. 2:02cv347, 2003 WL 21766528 (N.D.Tex.,
July 29, 2003) (severing lawsuit consisting of unrelated claims into seven separate cases); Francis
v. 422nd District Court of Fannin County, civil action no. 3:05cv199,. 2–5 WL 544207 (N.D.Tex.,
March 7, 2005) (severing unrelated claim into new lawsuit). As such, Covarrubias’ claims should
be severed into separate lawsuits. It is accordingly
ORDERED that the above-styled civil action is SEVERED into three separate lawsuits,
encompassing each of the three named Defendants remaining in the case. Cause no. 6:13cv812 shall
consist of the heat claim against Warden Berger, the case which is the primary subject of this Order.
The remaining two cases shall receive numbers as designated by the Clerk. The amended complaint
(docket no. 39) shall be the operative pleading in each of the new cases. It is further
ORDERED that upon a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected, in accordance with 28
U.S.C. §636(b)(1), the Plaintiff’s objections are overruled and the Report of the Magistrate Judge
(docket no. 86) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendant’s motion for summary judgment (docket no. 74) is
GRANTED and the above-styled civil action, no. 6:13cv812, is DISMISSED WITH PREJUDICE
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for purposes of proceeding in forma pauperis. The dismissal of this lawsuit shall have no effect
upon the severed claims and does not in any way serve to dismiss the Plaintiff’s claims against
Warden Foxworth or Brenda Mapps. It is further
ORDERED that any motions which may be pending in cause no. 6:13cv812, and only in
cause no. 6:13cv812, are hereby DENIED. This does not affect the pending motion for summary
judgment by Warden Foxworth regarding the claim of sleep deprivation. This motion shall be
transferred to the new case in which Warden Foxworth is a defendant and shall remain pending in
that case. Finally, it is
ORDERED that under the unique circumstances of this case, the filing fees shall be waived
for the new cases.
So ORDERED and SIGNED this 29th day of March, 2017.

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