Garcia v. Hackman et al
Filing
92
OPINION AND ORDER denying 89 Motion to Alter or Amend Final Judgment.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(lsmith, )
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.
§
§
§
§
§
C.A. NO. C-10-311
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO AMEND OR ALTER FINAL JUDGMENT
This is a civil rights action filed by a state prisoner pursuant to 42 U.S.C. § 1983.
Pending is plaintiff’s motion to alter or amend final judgment. (D.E. 89). For the reasons stated
herein, plaintiff’s motion is denied.
I. BACKGROUND
Plaintiff alleged that defendants engaged in a pattern of retaliatory conduct in response to
his filing of grievances, including deliberately failing to properly place an order for craft shop
equipment, disciplining him for tattoos that he acquired years earlier, unfairly suspending him
from the craft shop, and ultimately revoking his privileges there for practices that they long knew
about and condoned, as well as punishing him with the loss of commissary and recreation days
for those same practices. He asserted that defendants’ actions violated his constitutional rights,
as well as his state law right to be free from the unlawful conversion of his property. Id.
Defendants filed a motion for summary judgment arguing that they were entitled to
qualified immunity. Summary judgment on defendants’ qualified immunity defense was denied.
See generally Garcia v. Hackman, No. C-10-311, 2011 WL 2457918 (S.D. Tex. June 16, 2011).
Counsel was appointed to represent plaintiff at trial.
In February 2012, a three-day jury trial was held regarding plaintiff’s retaliation claims
and his state-law conversion claims. During plaintiff’s case-in-chief, he testified as well as
called three witnesses to testify about his claims. After plaintiff rested, defendants argued for
directed verdict as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure.
See generally Garcia v. Hackman, No. C-10-311, 2012 WL 1193249 (S.D. Tex. Feb. 16, 2012).
Regarding plaintiff’s retaliation claims, it was determined that “there was enough evidence and
testimony based on the standard enunciated by the Fifth Circuit to find that plaintiff had met his
burden.” Id. at *1. Regarding plaintiff’s conversion claims, “[t]here was virtually no evidence
in the trial record regarding [that] claim [, and] Plaintiff’s counsel conceded as much, indicating
that plaintiff was no longer pursuing that claim.” Id. at *2. Consequently, “plaintiff’s
conversion claim [was] dismissed pursuant to Rule 50.” Id. After defendants’ case-in-chief, the
jury entered a verdict in defendants’ favor.
II. DISCUSSION
A.
Legal Standard For Relief Pursuant To Rule 59.
Rule 59(e) motions “serve the narrow purpose of allowing a party ‘to correct manifest
errors of law or fact or to present newly discovered evidence.’” Waltman v. Int’l Paper Co., 875
F.2d 468, 473 (5th Cir. 1989) (citations omitted); accord Kossie v. Crain, 602 F. Supp. 2d 786,
793 (S.D. Tex. 2009) (citation omitted). Rule 59(e) cannot be used to introduce evidence that
was available prior to the entry of judgment, nor should it be employed to relitigate old issues,
advance new theories, or secure a rehearing on the merits. Templet v. HydroChem Inc., 367
F.3d 473, 478-79 (5th Cir. 2004) (citation omitted); accord Kossie, 602 F. Supp. 2d at 793
(citation omitted). To prevail on a Rule 59(e) motion, the moving party must demonstrate the
existence of the need to correct a clear error of law, or present newly discovered evidence.
Templet, 367 F.3d at 479; accord Kossie, 602 F. Supp. 2d at 793.
2
B.
Plaintiff Fails To Provide A Basis For Reconsidering The Dismissal Of His Claims.
Pursuant to Texas state law, the common law tort of conversion is committed by “‘[t]he
unauthorized and wrongful assumption and exercise of dominion and control over the personal
property of another, to the exclusion of or inconsistent with the owner’s rights.’” Arthur W.
Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 705 (5th Cir. 2009) (quoting Waisath v.
Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). There need not be “‘a manual taking of
the property in question’” but “the defendant’s actions must impair the plaintiff’s ownership
interest.” Id. (quoting Waisath, 474 S.W.2d at 447 and citing Prewitt v. Branham, 643 S.W.2d
122, 123 (Tex. 1982)). A showing of conversion requires a plaintiff to prove: “(1) he legally
possessed the property or was entitled to it; (2) the defendant wrongfully exercised dominion and
control over the property, excluding the plaintiff; (3) the plaintiff demanded the property’s
return; and (4) the defendant refused.” Id. (citing Small v. Small, 216 S.W.3d 872, 877 (Tex.
App. 2007)).
In the pending motion, plaintiff claims that the “dismissal of the state common-law tort of
conversion is based on the taking of his craftshop tools and material is based on an incorrect
legal standard instead of the controlling U.S. Supreme Court precedent and a mistake of the
actual claim.” (D.E. 89, at 1). First, to the extent that he is arguing that there is some controlling
Supreme Court case, he does not cite any decision by the Supreme Court. Second, he does not
address the fact that his trial counsel conceded that there were insufficient facts to support the
conversion claim and that it was no longer being pursued. Third, he does not point to any
evidence elicited at trial that would satisfy any of the four elements to prove a conversion claim
in Texas.
3
Next, plaintiff argues that his attorney “failed to establish, during trial, how the
defendants took plaintiffs [sic] property without compesation [sic].” Id. at 2. He further asserts
that he “never conceded that he was no longer pursuing the conversion claim.” Id. To the extent
that plaintiff is attempting to raise an ineffective assistance of counsel claim in his civil trial, the
Fifth Circuit has explained that “the sixth amendment right to effective assistance of counsel
does not apply to civil proceedings.” Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th
Cir. 1986) (per curiam); accord Swanson v. Perez, 250 F. App’x 596, 598 (5th Cir. 2007) (per
curiam) (unpublished) (citing Sanchez, 785 F.2d at 1237 ).
Finally, he asserts that “the evidence was overwhelming on plaintiff’s retaliation claim
and such would be an injustice of law not to correct.” (D.E. 89, at 2). This statement is the only
one that addresses the retaliation claim. He does not note any facts that rendered the jury verdict
unjust.
III. CONCLUSION
Plaintiff has failed to establish either a legal or factual basis supporting reconsideration of
the dismissal of his claims. Accordingly, plaintiff’s motion to alter or amend final judgment,
(D.E. 89), is denied.
ORDERED this 26th day of April 2012.
____________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?