Hines v. Castillo et al

Filing 29

OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION FOR LEAVE TO FILE A THIRD SUPPLEMENTAL COMPLAINT; denying 27 Motion for Leave to File.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSEPH BARNARD HINES,
Plaintiff,
VS.
CASTILLO, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-120
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OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION FOR
LEAVE TO FILE A THIRD SUPPLEMENTAL COMPLAINT
Pending is Plaintiff’s motion for leave to file a third supplemental complaint (D.E.
27). Plaintiff has already filed two supplemental complaints (D.E. 21, 22). Leave to
amend should be freely granted when justice requires, FED. R. CIV. P. 15(a)(2), but not if
amendment would be futile. Whitley v. Hanna, ___ F.3d ___, 2013 WL 4029134, No.
12-10312 (5th Cir. Aug. 8, 2013) (slip op.); Newby v. Enron Corp., 542 F.3d 463, 469
(5th Cir. 2008). Plaintiff’s amendments would be futile.
First, he proposes to add claims of failure to train and supervise against Wardens
Currie, Barber, and Monroe. He alleges only that these wardens failed to train and
supervise their employees without providing any supportive facts. As discussed in the
Memorandum and Recommendation filed August 9, 2013, there must be some personal
involvement of these Defendants (D.E. 24). Moreover, for liability to attach on a failure
to train and supervise claim, plaintiff must allege facts that would tend to establish (1) a
supervisor failed to supervise or train; (2) causal link between the failure to train or
supervise; and (3) the failure to train or supervise amounts to deliberate indifference.
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Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Plaintiff
alleged no facts to support these elements. Adding a claim of failure to train or supervise
would be futile.
Second, Plaintiff seeks to join several John Doe Defendants, the participants in the
use of force led by Defendant Sergeant Castillo. Plaintiff failed to allege that these John
Doe Defendants participated in the assault by Sgt. Castillo; instead he alleges for the first
time that the John Does failed to protect him from the harm caused by Sgt. Castillo. As
discussed in the Memorandum and Recommendation (D.E. 24), Plaintiff offers no
evidence that the John Does were aware that Sgt. Castillo would use excessive force
(assuming for purposes of this motion that he did) or that they had time to intervene once
the assault was in progress, Moreover, as Sgt. Castillo was the ranking officer and the
officer leading the use of force, the John Doe Defendants were subject to the judgment of
Sgt. Castillo that the force used was necessary under the circumstances. At most,
according to the facts alleged by Plaintiff, these John Does were witnesses to an assault.
If Plaintiff develops evidence, during the course of discovery, that these defendants
participated in the assault or failed to protect the Plaintiff, Plaintiff may seek to
supplement the complaint at that time. Adding the John Doe Defendants at this time
would be futile.
Third, Plaintiff seeks to add Connally Unit Defendants who retaliated against him
following his complaints and grievances. The Connally Unit Defendants have already
been transferred (D.E. 9) to the Western District of Texas. During the evidentiary
hearing, it was explained to Plaintiff that he must sue the Connally Unit Defendants in the
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Western District of Texas because venue lay in the Western, not the Southern District of
Texas. Amendment would be futile.
Accordingly, Plaintiff’s motion (D.E. 27) is denied in all things.
ORDERED this 3rd day of September, 2013.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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