Horton v. Cockrell

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-41167
Summary Calendar
_____________________________________
BILLY WAYNE HORTON,
Plaintiff-Appellant,
VERSUS
JANIE COCKRELL, ET AL.,
Defendants-Appellees.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
92-CV-465
______________________________________________________
November 13, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Horton challenges the dismissal of his 42 U.S.C. § 1983
complaint following a Flowers2 hearing conducted by the magistrate
pursuant to 28 U.S.C. § 636(b)(l)(B) and the adoption of the
magistrate's recommendation. We find no error and affirm.
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
2
Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on
other grounds, 964 F.2d 400 (5th Cir. 1992).
I.
Billy Wayne Horton, a Texas Department of Criminal Justice
(TDCJ) prisoner, filed a 42 U.S.C. § 1983 complaint alleging that
he was subject to constant threats of violence while housed at the
Beto I Unit. He alleged that white inmates were subject to
extortion by black and hispanic inmates. Horton further alleged
that the threats were reported to defendant Warden Cockrell and
that she refused to take any action to end the threats.
The magistrate judge scheduled a Spears3 hearing. Following
the hearing, Horton filed a motion for leave to file a supplemental
complaint, alleging that he had been repeatedly assaulted since
filing his complaint. The magistrate judge denied this motion.
The magistrate judge recommended that Horton's complaint be
dismissed as frivolous and that Horton's motion to proceed in forma
pauperis (IFP) be denied. The district court adopted the
recommendation and dismissed the complaint. Horton appealed the
dismissal, and this court, in an unpublished opinion, vacated the
district court's order in part and remanded the case for further
proceedings.
Following remand, the magistrate judge granted Horton's motion
to file a supplemental complaint and directed the defendants to
respond. In his supplemental complaint, Horton alleged that he had
notified defendants Glimp and Ramirez that he had been threatened
with the use of force by inmate Alcorn unless he paid extortion
money. Horton contended that he was assaulted a few days later by
3
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Alcorn and some other black inmates because he refused to pay the
extortion money. Horton also alleged that he was threatened and
assaulted by a black inmate after being moved to the Bill Clements
Unit of TDCJ.
The magistrate judge recommended that the claims regarding
incidents at the Clements Unit be severed and transferred to the
Northern District of Texas, where the incidents had occurred. The
district court adopted the magistrate judge's recommendation and
transferred the claims concerning the Clements Unit.
After the defendants filed an answer, the magistrate judge
scheduled an "expanded evidentiary hearing" pursuant to Flowers and
directed the parties to submit a witness list and a brief summary
of the proposed testimony of each witness. The defendants filed a
Notice of Disclosure, stating that they had provided Horton with
the required information under the Civil Justice Expense and Delay
Reduction Plan pursuant to the Civil Justice Reform Act of 1990.
Horton submitted a list of three witnesses. The magistrate
judge ordered the marshal to produce two of the three listed
witnesses at the hearing. After Horton presented his witnesses at
the hearing, the defendants moved for a dismissal of the case,
arguing that Horton had not proved that any of the defendants had
violated his rights.
At the close of the hearing, Horton made an inquiry about how
further discovery in the case would be conducted. The magistrate
judge stated that she would be issuing a recommendation to the
district court and advised Horton that the hearing had "basically
3
been [his] trial." Horton stated that he had understood that the
magistrate judge was merely holding a hearing and expressed
surprise that he would not be having a jury trial. The magistrate
judge responded that he had not requested a jury trial when he had
the opportunity. Horton objected on the basis that he had not
consented to the trial before the magistrate judge. The magistrate
judge agreed that he had not consented to having her try the case,
but stated that he had agreed to appear before the district court
and that she would be making a report to the district court.
Following the hearing, Horton filed a motion for new trial or,
alternatively, a motion to reopen the case. Horton argued that he
had not been notified that a "trial" was to be held and that he had
not prepared for trial. The magistrate judge granted Horton's
motion to the extent that she allowed him to submit additional
evidence which was relevant to the incidents occurring at the Beto
I Unit.
Horton filed a motion to conduct additional discovery. He
sought to obtain a videotape recorded in the prison on the day that
he was assaulted and the disciplinary records of the inmates who
had assaulted him. The magistrate judge ordered the defendants to
provide Horton with a copy of the videotape, but denied Horton's
request to obtain the disciplinary histories of the inmates who
attacked him. The defendants advised the magistrate judge that
they had provided the tape to Horton.
Horton filed a motion to compel discovery, alleging that he
had not received the tape. He subsequently filed a second motion
4
to compel discovery, arguing that the defendants had not shown him
the entire tape. The defendant responded that Horton viewed the
only tape that exists regarding the alleged assault incident. The
magistrate judge denied Horton's motion to compel and his second
motion to compel.
Horton then filed a motion to recuse the magistrate judge from
further proceedings in the case, arguing that she summarily denied
his motions without investigation and did not provide sufficient
reasons for denying the motions. Horton also filed a motion for
sanctions against the defendants based on their failure to comply
with discovery orders. He contended that the defendants erased
portions of the requested videotape in violation of prison
regulations.
Horton also filed a jury demand. He argued that he is
entitled to a jury trial because he had not been notified that the
hearing would be his trial. Horton also filed a motion to change
discovery tracks so that he could conduct further discovery in the
case. The magistrate judge denied Horton's motions for recusal,
sanctions, to change discovery tracks, and his request for a jury
trial.
The magistrate judge recommended that the case be dismissed
with prejudice. The magistrate judge determined that the
defendants did not have knowledge that Horton was exposed to an
excessive risk of harm to his health and safety. Horton filed
objections to the recommendation. The district court adopted the
5
magistrate judge's recommendation and dismissed the complaint with
prejudice.
II.
A.
Horton argues first that the magistrate judge did not have
jurisdiction to conduct a trial because he did not consent to her
doing so pursuant to 28 U.S.C. § 636(c)(1). Consent under §
636(c)(1) is required only when the magistrate judge is to both
conduct the proceedings and enter the judgment.
Title 28 U.S.C. § 636(b)(1)(B) provides that "a judge may also
designate a magistrate to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed findings
of fact and recommendations for the disposition . . . of prisoner
petitions challenging conditions of confinement." In Flowers, 956
F.2d at 490, a hearing was conducted pursuant to § 636(b)(1). The
procedure followed in Flowers is acceptable unless the plaintiff
has properly demanded a jury trial.4 See Archie v. Christian, 808
F.2d 1132, 1135 (5th Cir. 1987). Because, as discussed below,
Horton did not make a timely demand for a jury trial, the
magistrate judge had the authority to conduct the evidentiary
hearing and to submit proposed findings of fact and a dispositional
recommendation to the district court. Horton, however, has not
4
Horton argues that he was entitled to a trial by jury
although he failed to make a jury demand in a timely manner as
required by Fed. R. Civ. P. 38(b). Horton argues that the delay
was excusable because he was not aware that the evidentiary
hearing would be the "trial" of the case.
6
argued that the denial of his jury demand is grounds for reversal,
thus we need not give this argument further consideration.
B.
Horton argues that the magistrate judge should have granted
him a new trial rather than just allowing him to present additional
documentary evidence. He argues that he was entitled to the new
trial because he was not aware that the evidentiary hearing would
be his "trial."
The denial of a motion for new trial will be reversed only if
there is a clear showing of an abuse of discretion. Dawsey v. Olin
Corp., 782 F.2d 1254, 1261 (5th Cir. 1986). With respect to
Horton's argument that the magistrate judge failed to notify him
that the hearing would be the "trial" of the case, the scheduling
order correctly described the proceeding as an expanded evidentiary
hearing pursuant to Flowers. The order directed the parties to
provide a witness and exhibit list to the court and did not advise
the parties that they were required to make only a prima facie
case. Any omission to more adequately warn Horton that this
hearing would be his only opportunity to present evidence was
harmless since the magistrate judge permitted Horton to submit
additional evidence after the hearing was completed.
In his motion for new trial, Horton complained that he was not
given the opportunity to present evidence of general grievances
that he had filed about the constant threat of violence at the Beto
I Unit, evidence of incidents that occurred at the Clements Unit,
7
and a videotape recorded at the prison on the date that Horton was
attacked by several black inmates.
The magistrate judge allowed Horton to submit the grievances
into evidence after the hearing. The magistrate judge also ordered
the defendants to provide Horton with the requested videotape.
Defense counsel responded in a letter that he had reviewed the tape
and determined that it did not show the altercation between Horton
and the other inmates although it showed the inmates being
processed after the incident was over. Horton filed a motion to
compel the production of the entire tape. Defense counsel
responded that the TDCJ officials advised that the videotape
produced was the only tape existing regarding the incident involved
in the suit. Thus, Horton could not have obtained further evidence
from the tape even if he had received a new trial.
Horton also argued in his motion that he wished to present
evidence of incidents occurring at the Clements Unit to show that
proper procedures were not followed by prison officials. The
magistrate judge specifically precluded Horton from introducing
evidence of the incidents occurring at the Clement Unit. Thus, she
would not have admitted such evidence at a second hearing.
Further, this ruling was not an abuse of discretion because the
manner in which incidents were addressed by officials at the
Clements Unit was not relevant to the procedures followed at the
Beto I Unit.
Horton also argued in his motion that he would seek discovery
of inmate Alcorn's prior disciplinary history because he believed
8
that prison officials knew that Alcorn had assaulted and/or
extorted other inmates. He argues that such evidence would have
shown that Alcorn should have been segregated from the other
inmates. If Horton was correct with respect to the content of
Alcorn's disciplinary history, such evidence may have led to the
discovery of relevant evidence of Alcorn's proclivity to assault
inmates, but it would not have established that the prison
officials had knowledge that Alcorn was a particular threat to
Horton. Thus, even if Horton was not afforded the opportunity to
discover this evidence, it was not an abuse of discretion to refuse
to grant a new trial on that basis.
Horton also argued in his motion for new trial that he had
intended to file a motion for class certification because it would
then have been easier to obtain evidence that every white inmate is
assaulted. He also contended that he would have filed a motion for
the appointment of counsel to represent the class. Because Horton
failed to prove his substantive "failure to protect" allegations,
the issue whether the action was suitable for class certification
is moot as is his motion for appointment of counsel to represent
the class.
C.
Horton argues next that the magistrate judge abused her
discretion in severing and transferring his claims that concerned
incidents occurring in the Clements Unit. Horton argues that his
claims concerning the Clements Unit were better documented than the
Beto I claims and would show a pattern of violence and deliberate
9
indifference to security occurring throughout the prison system.
A district court may sua sponte transfer a case to any other
district where the suit might have been brought for the convenience
of the parties and in the interests of justice. 28 U.S.C. §
1404(a); Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir.
1989). "Decisions to effect 1404 transfers are committed to the
sound discretion of the transferring judge, and review of a
transfer is limited to abuse of that discretion." Mills, 886 F.2d
at 761 (internal quotations and citation omitted).
The Bill Clements Unit is in Amarillo, Texas, which is located
within the jurisdiction of the district court in the Northern
District of Texas. See 28 U.S.C. § 124(a)(5). Horton alleged that
the prison officials in the Clements Units did not protect him from
an assault by a black inmate although he had reported threats made
against him by the inmate. The district court did not abuse its
discretion in transferring these claims to the Northern District
because the incidents occurred there and the defendant prison
personnel were also presumably located in that district.
D.
Horton argues that his motion to recuse the magistrate judge
should have been granted because the magistrate judge is
predisposed to rule against prisoners. Horton has not alleged the
existence of any bias resulting from an extrajudicial source.
Horton's bias argument is based on allegations of consistent
rulings of the magistrate judge against him in the instant
proceeding. Adverse rulings in a case, without more, are not
10
sufficient to support a recusal motion. United States v. MMR
Corp., 954 F.2d 1040, 1045 (5th Cir. 1992). Further, the
magistrate judge granted Horton's motion to reopen the case and
some of his subsequent discovery requests. Thus, the magistrate
judge did not abuse her discretion in denying the motion for
recusal.
E.
Horton argues that the defendants should have been directed to
explain the loss of portions of the videotape in response to his
second motion to compel. He also requests this court to enter an
order to show cause why sanctions should not be imposed against the
defendants.
Discovery matters are entrusted to the "sound discretion" of
the district court and are reviewed for an abuse of such
discretion. King v. Dogan, 31 F.3d 344, 346 (1994); Coughlin v.
Lee, 946 F.2d 1152, 1158 (5th Cir. 1991). In response to Horton's
second motion to compel production of the entire videotape, defense
counsel questioned TDCJ officials about the videotape and they
responded that the only relevant tape in existence had been
provided to Horton. The magistrate judge did not abuse her
discretion in accepting this explanation and denying Horton's
second motion to compel. Horton has not demonstrated a basis for
this court to impose sanctions against the defendants.
Horton makes a number of additional arguments regarding
alleged errors of the magistrate judge in her evidentiary and
11
discovery rulings. Our review of the record reveals no abuse of
discretion in these rulings.
AFFIRMED
12