Rich v. Gabino

Filing 33

MEMORANDUM ADOPTING REPORT AND RECOMMENDATIONS for 29 Report and Recommendations of the United States Magistrate Judge. ORDERED that the Defendants motion for partial summary judgment is GRANTED and any claims raised by the Plaintiff under state law or for monetary damages against the Defendant in his official capacity are DISMISSED WITH PREJUDICE. Signed by Judge Michael H. Schneider on 9/23/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JACOB RICH

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v.

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GALVAN GABINO

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CIVIL ACTION NO. 6:14cv584

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The Plaintiff Jacob Rich, 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.
Rich complained about a use of force occurring on April 5, 2014. The sole named
Defendant, Galvan Gabino, filed a motion for partial summary judgment as to any claims raised by
Rich for assault and battery under Texas state law as well as claims brought against Gabino in his
official capacity.
After review of the pleadings, the magistrate judge issued a Report recommending that the
motion for partial summary judgment be granted. The magistrate judge observed that Rich filed his
complaint on a §1983 lawsuit form, presumably under the Eighth Amendment, and did not invoke
pendent jurisdiction. The Eleventh Amendment bars any claims for monetary damages from Gabino
in his official capacity. The magistrate judge stated that the dismissal of such claims would not
affect Rich’s claim against Gabino in his individual capacity.

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In his objections, Rich clarifies that he is suing Gabino in his individual capacity for violating
his rights under the Eighth Amendment. He contends that Gabino is not entitled to Eleventh
Amendment immunity because Gabino did not act in good faith and objects to the Defendant moving
for summary judgment because there are disputed issues of material fact. He asks that the Court
“waive immunity to the defendant” because he is suing Gabino in his individual capacity.
Eleventh Amendment immunity applies to official-capacity lawsuits, not individual-capacity
ones. Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). The magistrate judge correctly determined
that any claims by Rich for monetary damages against Gabino in his official capacity, but not his
individual capacity, would be barred by the Eleventh Amendment. The element of good faith is not
applicable to Eleventh Amendment immunity. Rich has not shown that disputed issues of fact exist
with respect to the question of whether claims against Gabino in his official capacity would be barred
by the Eleventh Amendment. His objections are without merit.
The Court has conducted a careful de novo review of those portions of the magistrate judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the report of the magistrate judge is correct and 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. 29) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendant’s motion for partial summary judgment (docket no. 15) is
GRANTED and any claims raised by the Plaintiff under state law or for monetary damages against
the Defendant in his official capacity are DISMISSED WITH PREJUDICE. It is further

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ORDERED that the dismissal of such claims shall have no effect upon the Eighth
Amendment claims by the Plaintiff Jacob Rich against the Defendant Galvan Gabino in his
individual capacity.
SIGNED this 23rd day of September, 2015.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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