Garcia v. Hackman et al
Filing
62
OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(amireles, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BASILLO GARCIA
TDCJ-CID #598955
v.
JAMES HACKMAN, ET AL.
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C.A. NO. C-10-311
OPINION DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW
This pro se civil rights action was filed pursuant to 42 U.S.C. § 1983 by a state prisoner
alleging that defendants Hackman and Crites retaliated against him for filing grievances.
Plaintiff Basillo Garcia asserts that he was removed from the craft shop and charged with
disciplinary cases after filing grievances. Plaintiff also asserts a claim that defendants committed
the state common-law tort of conversion based on the taking of his craft shop tools and materials.
On February 15, 2012, the trial began, and plaintiff’s case-in-chief concluded on February 16,
2012. At the conclusion of plaintiff’s case, defendants orally moved for a directed verdict
pursuant to Rule 50 of the Federal Rules of Civil Procedure.
Judgment as a matter of law is available when “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1); accord U.S.
Commodity Future Trading Comm’n v. Dizona, 594 F.3d 408, 413 (5th Cir. 2010). In such
circumstances, “the court may: (A) resolve the issue against the party; and (B) grant a motion for
judgment as a matter of law against the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable find on that issue.” Fed. R. Civ. P.
50(a)(1). The Fifth Circuit has explained that “[i]n evaluating such a motion, the court must
consider all of the evidence in the light most favorable to the non-movant, drawing all factual
inferences in favor of the non-moving party, and leaving credibility determinations, the weighing
of evidence, and drawing of legitimate inferences from the facts to the jury.” Dizona, 594 F.3d
at 413 (citation omitted); accord Mullins v. TestAmerica, Inc., 564 F.3d 386, 403 (5th Cir. 2009)
(citation omitted). “Although the court ‘should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to believe.’” Dizona, 594
F.3d at 413 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)).
Instead, the trial court “‘should give credence to the evidence favoring the nonmovant as well as
that evidence supporting the moving party that is uncontradicted and unimpeached at least to the
extent that that evidence comes from disinterested witnesses.” Dizona, 594 F.3d at 413-14
(quoting Reeves, 530 U.S. at 151); accord Mullins, 564 F.3d at 403 (same).
Defendants first made their motion concerning plaintiff’s retaliation claims against both
defendants. Regarding that issue there was enough evidence and testimony based on the
standard enunciated by the Fifth Circuit to find that plaintiff had met his burden. Accordingly,
judgment as a matter of law is denied concerning the retaliation claims.
Next, defendants asserted that they were entitled to judgment as a matter of law
concerning plaintiff’s conversion claims. In order to prove a claim of conversion, plaintiff must
provide evidence of four elements. See Small v. Small, 216 S.W.3d 872, 877 (Tex. App. 2007)
(citation omitted). They argued that Texas statute bars the conversion claim:
If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee’s
employment and if it could have been brought under this chapter
against the governmental unit, the suit is considered to be against
the employee’s motion, the suit against the employee shall be
dismissed unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as a defendant on
or before the 30th day after the motion is filed.
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Tex. Civ. Prac. & Rem. Code § 101.106(f). Defense counsel acknowledged that no motion
contemplated by § 101.106(f) was ever filed. Moreover, this issue was first raised on February
14, 2012 at the final pre-trial conference.
The Texas Supreme Court has determined that a government hospital’s failure to raise
this defense before the trial court constituted a waiver of the issue on appeal. See University of
Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibias, 324 S.W.3d 544, 551 (Tex. 2010). Plaintiff
was not required to amend the pleading where the defendant failed to file a motion pursuant to
§ 101.106(f). Id. Here, defendants did not raise this statute as a defense until the eve of trial
when it was first raised. By that time, it was too late for plaintiff to amend his pleadings to
preserve the claim. Accordingly, defendants have waived this defense as a shield to liability.
Nonetheless, defense counsel argued that plaintiff had failed to present sufficient
evidence to support his burden on this claim. There was virtually no evidence in the trial record
regarding a possible conversion claim. Plaintiff’s counsel conceded as much, indicating that
plaintiff was no longer pursuing that claim. Accordingly, plaintiff’s conversion claim is
dismissed pursuant to Rule 50.
ORDERED this 16th day of February 2012.
___________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE
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