Rodriguez v. McMullen ( 2023 )

Case: 21-40593 Document: 00516707705 Page: 1 Date Filed: 04/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 11, 2023
No. 21-40593 Lyle W. Cayce
Clerk
David George Rodriguez,
Plaintiff—Appellant,
versus
Virgil McMullen, Senior Warden; Kendrick Demyers,
Major,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:18-CV-432
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Per Curiam:*
Appellant David George Rodriguez (“Rodriguez”) appeals the final
judgment entered pursuant to a jury verdict in favor of Appellee Virgil
McMullen (“McMullen”). For the reasons explained below, we AFFIRM
the district court’s judgment.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-40593
I. Background
Rodriguez is an inmate of the Texas Department of Criminal Justice
(“TDCJ”). In 2016, Rodriguez was a G-2 level prisoner incarcerated in the
Stringfellow Unit, in Rosharon, Texas. Rodriguez enjoyed certain privileges
as a G-2 prisoner, including living in the dorms and working as a leather
worker in the unit’s craft shop. In 2016, the craft shop supervisors decided
that prisoners would no longer be permitted to shower after working in the
craft shop. Rodriguez filed an I-60 complaint with Warden McMullen asking
that shower privileges be restored. McMullen investigated and addressed the
issues to Rodriguez’s satisfaction. Rodriguez alleges that following the
resolution of his I-60 complaint, one of McMullen’s subordinates, Captain
Graham threatened to take punitive actions against Rodriguez for filing the I-
60 complaint. Rodriguez then filed a Step 1 Grievance—a formal
complaint—regarding Graham’s threats.
On December 9, 2016, McMullen received a tip, through offender
correspondence, that Rodriguez possessed a cell phone. 1 During the
subsequent investigation into this tip, Rodriguez admitted to having had
access, direct or indirect, to a cell phone two months prior. This admission
was sufficient for a disciplinary case to be filed against Rodriguez, and a
disciplinary hearing was held. At that hearing, Rodriguez was found guilty of
possessing a cell phone and was demoted to G-5 status by the three-person
Unit Classification Committee. This demotion led to Rodriguez’s transfer
off the Stringfellow Unit to the Allred Unit, because the Stringfellow Unit
does not house G-5 prisoners.
1
Rodriguez contends that the filing of charges against him must have been
retaliatory because the tip was received after he had already been searched for the cell
phone.
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Rodriguez filed the present complaint against McMullen on
December 17, 2018, pursuant to 42 U.S.C. § 1983 alleging that he was
retaliated against for exercising his First Amendment rights through the
administrative grievance procedure. In July 2021, a two-day jury trial was
held. At no time during the trial did Rodriguez make a motion for judgment
as a matter of law under Rule 50. The jury found that Rodriguez had failed to
prove that McMullen filed false disciplinary charges against Rodriguez for
the purpose of retaliating against him for the exercise of his first Amendment
right to complain to prison officials. On July 21, 2021, the district court
entered judgment on the jury’s verdict. Rodriguez appeals that verdict.
II. Legal Standard
“Challenges to the sufficiency of the evidence must be raised in a
Fed.R.Civ.P. 50(a) motion for judgment as a matter of law before submission
of the case to the jury.” United States ex rel. Wallace v. Flintco, Inc., 143 F.3d
955, 960 (5th Cir. 1998). Where Rodriguez failed to raise a Rule 50 motion
for judgment as a matter of law, we consider the sufficiency of the evidence
under a plain error standard, reversing “only if the judgment complained of
results in a ‘manifest miscarriage of justice.’” Id. at 963–64. On plain error
review “the question before this Court is not whether there was substantial
evidence to support the jury verdict, but whether there was any evidence to
support the jury verdict.” McCann v. Tex. City Refining, Inc., 984 F.2d 667,
673 (5th Cir. 1993) (per curiam). “If any evidence supports the jury verdict,
the verdict will be upheld.” Flintco, Inc., 143 F.3d at 964 (citing Polanco v.
City of Austin, 78 F.3d 968, 974 (5th Cir. 1996)).
III. Discussion
A. Sufficiency of the Evidence
Rodriguez argues that the jury verdict is not supported by sufficient
evidence. Because Rodriguez failed to make a Rule 50(a) motion at trial, we
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must consider Rodriguez’s current challenge to the sufficiency of evidence
under the plain error standard. See McCann, 984 F.2d at 673. Accordingly,
we must determine whether any evidence supports the jury’s verdict that
McMullen did not file false disciplinary charges against Rodriguez in
retaliation for exercising his First Amendment rights through the
administrative grievance procedure. We hold that evidence does support the
jury’s finding.
Evidence was presented to the jury that undercut Rodriguez’s claim
that McMullen possessed the requisite retaliatory intent. First, Rodriguez
wrote that his concerns regarding the shower policy, which was the alleged
basis for the retaliation, were “appropriately and professionally handled by
Senior Warden McMullen.” Second, Rodriguez testified that despite filing
multiple previous complaints with McMullen “[m]e and him have not fallen
out yet.” This testimony, from Rodriguez, is evidence that McMullen
lacked the requisite retaliatory intent.
Additionally, McMullen testified that he received a tip, through
offender correspondence, that “[o]ffender Rodriguez had cellphones and
K2.” McMullen further testified that in the course of investigating that tip,
Rodriguez admitted that “two months prior that he had a cellphone and he
was using it do legal work on.” This evidence supports the jury’s
determination that the disciplinary charges filed against Rodriguez were
based on his own conduct and admissions and not in retaliation for
exercising his First Amendment rights. Thus, we find that evidence does
support the jury’s verdict and no plain error was made.
B. Jury Instruction 6
Rodriguez posits that the district court gave improper jury
instructions. A properly objected-to instruction is reviewed for abuse of
discretion. See United States v. Daniels, 281 F.3d 168, 184 (5th Cir. 2002). In
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Bender v. Brumley, 1 F.3d 271, 276–77 (5th Cir. 1993), we set forth a two-part
test for challenges to jury instructions. First, the challenger must
demonstrate that “the charge ‘as a whole creates “substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations.’” Id. at 276 (quoting Kyzar v. Vale Do Ri Doce Navegacai, S.A.,
464 F.2d 285, 290 (5th Cir. 1972). Second, even if the jury instructions were
erroneous, we will not reverse if we determine, based upon the entire record,
that the challenged instruction could not have affected the outcome of the
case. Id. at 276–77. We consider whether the instruction, taken as a whole,
“is a correct statement of the law and whether it clearly instructs jurors as
to the principles of law applicable to the factual issues confronting them.”
United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990) (quoting
United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990)). Trial judges are
afforded “wide latitude in fashioning jury instructions.” Bender, 1.F. 3d at
276. “The instructions need not be perfect in every respect provided that
the charge in general correctly instructs the jury, and any injury resulting
from the erroneous instruction is harmless.” Rogers v. Eagle Offshore Drilling
Servs., Inc., 764 F.2d 300, 303 (5th Cir. 1985) (citing Kyzar 464 F.2d at 285).
“In assessing whether evidence sufficiently supports a particular jury
instruction, this Court views the evidence and all reasonable inferences that
may be drawn from the evidence in the light most favorable to the
Government.” United States v. Cessa, 785 F.3d 165, 185 (5th Cir. 2015)
(internal quotation marks omitted).
Rodriguez asserts that the district court committed reversible error in
Jury Instruction 6 by instructing the jury that:
In weighing the credibility of a witness, you may consider the
fact that he or she has previously been convicted of a felony.
Such a conviction does not necessarily destroy the witness’s
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credibility, but it is one of the circumstances you may take into
account in determining the weight to give his or her testimony.
“[A] district court ‘may not instruct the jury on a charge that is not
supported by evidence.’” United States v. Cessa, 861 F.3d at 135 (quoting
Cessa, 785 F.3d at 185 (5th Cir. 2015)). First, Rodriguez argues that
Instruction 6 lacked a proper evidentiary predicate. We disagree. Rodriguez
testified that he was—and had been for years—an inmate in the TDCJ as
did his witness Mariano Castillo (“Castillo”). Rodriguez’s testimony
primarily centered on his status and experience as a prisoner. This evidence,
and all reasonable inferences that can be drawn from this evidence, when
viewed in the light most favorable to the government, support the
government’s claim that Instruction 6 had a proper evidentiary predicate.
Rodriguez further argues that Jury Instruction 6 was improper
because it was not properly limited. Rodriguez contends that the instruction
should have stated that his criminal history could “only” be used for the
purpose of weighing his truthfulness. Jury Instruction 6—the Fifth Circuit’s
Pattern Jury Instruction 2.12—was properly limited by stipulating that the
jury could consider Rodriguez’s prior felony conviction “in weighing the
credibility of a witness.” Accordingly, Rodriguez has failed to show that the
absence of the word “only” from Jury Instruction 6 created “substantial and
ineradicable doubt” as to whether the jury had been properly guided in its
deliberations. See Bender 1 F.3d at 276–77 (internal quotations removed). In
sum, we find that there is no reversible error as the alleged instruction
“could not have affected the outcome of the case.” Id. at 277 (internal
quotations removed).
IV. Conclusion
The judgment of the district court is AFFIRMED.
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