United States District Court, E.D. Texas
CALVIN GARY WALKER, WALKER'S ELECTRIC, WALKERS ELECTRIC, and JESSIE HAYNES, Plaintiffs,
BEAUMONT INDEPENDENT SCHOOL DISTRICT, AARON COVINGTON, LEROY SALEME, et al., Defendants.
ORDER ON REPORT AND RECOMMENDATION
A. CRONE UNITED STATES DISTRICT JUDGE
before the court is Magistrate Judge Keith Giblin's
Report and Recommendation (#296) on Defendants Bob Rawls
(“Rawls”), Deanna Stevens
(“Stevens”), and Timothy Brewer's
(“Brewer”) (collectively, the “Federal
Defendants”) Motion to Dismiss for Lack of Subject
Matter Jurisdiction, for Failure to State a Claim, and for
Insufficient Service of Process (#211). The court referred
this matter to United States Magistrate Judge Keith F. Giblin
for consideration and recommended disposition of
case-dispositive pretrial motions (#55). On March 3, 2017,
Judge Giblin issued the instant report and recommendation, in
which he recommended that the court grant the Federal
Defendants' motion. Plaintiffs timely filed objections
(#298) to the magistrate judge's report and
recommendation. The court has reviewed those objections and
concluded that they are without merit.
who files timely, written objections to a magistrate
judge's report and recommendation is entitled to a de
novo determination of those findings or recommendations
to which the party specifically objects. 28 U.S.C. §
636(b)(1)(c); Fed.R.Civ.P. 72(b)(2)-(3). “Parties
filing objections must specifically identify those findings
[to which they object]. Frivolous, conclusive or general
objections need not be considered by the district
court.” Nettles v. Wainwright, 677 F.2d 404,
410 n.8 (5th Cir. 1982) (en banc), overruled on other
grounds by Douglass v. United Servs. Auto. Ass'n, 79
F.3d 1415 (5th Cir. 1996) (en banc); accord Bank of
America, N.A. v. Ingram, No. 1:12-cv-55, 2012 WL
2524274, at *1 (E.D. Tex. June 29, 2012); Flynn v. State
Farm Fire & Cas. Ins. Co. (Tex.), 605 F.Supp.2d 811, 813
(W.D. Tex. 2009); Savage v. Barnhart, 372 F.Supp.2d
922, 924 n.1 (S.D. Tex. 2005). Here, the court has undertaken
a de novo review of the report and recommendation
and concludes that the objections must be overruled.
as noted by the magistrate judge, Plaintiff Jessie Haynes
(“Haynes”) voluntarily dismissed all claims
against the Federal Defendants (#265). Accordingly, the
report and recommendation pertained only to the claims of
Plaintiffs Calvin Gary Walker (“Walker”) and his
two companies, Walker's Electric and Walkers Electric
(collectively, the “Walker Plaintiffs”).
the objections themselves, the Walker Plaintiffs first oppose
the dismissal of any official-capacity claims against Rawls,
asserting that, under Texas law, official-capacity claims are
not treated as a suit against the government when an employee
is sued for an ultra vires act. The magistrate judge
found that the Walker Plaintiffs' claims against Rawls in
his official capacity as a federal prosecutor must be
dismissed because such claims must be treated as claims
against the United States, and the Walker Plaintiffs had
identified no waiver of sovereign immunity. See Todd v.
Hank, 263 F.3d 162, 162 (5th Cir. 2001) (citing
Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)).
The Walker Plaintiffs now maintain that sovereign immunity
does not prohibit their claims against Rawls in his official
capacity because they have successfully pleaded the ultra
vires exception to governmental immunity under Texas
law. See Houston Belt & Terminal Ry. Co. v. City of
Houston, 487 S.W.3d 154, 161 (Tex. 2016).
Walker Plaintiffs' objection is misguided, however, as
Rawls is a federal employee. Accordingly, the Walker
Plaintiffs are required to identify a waiver of the sovereign
immunity of the United States, not the State of Texas. Texas
law's ultra vires exception to state sovereign
immunity is irrelevant to this issue. See Tex. Parks &
Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 393
(Tex. 2011) (“A suit against a state official
for acting outside his authority is not barred by sovereign
immunity.”) (emphasis added). Therefore, this objection
the Walker Plaintiffs assert that the magistrate judge should
not have granted Rawls absolute immunity from the Walker
Plaintiffs' state law claims pursuant to 28 U.S.C. §
2679(b)(1). The Walker Plaintiffs' objection essentially
repeats the argument they made before the magistrate judge,
and, after de novo review of the issue, the court
concurs with the magistrate judge's analysis and
conclusions. This objection is also overruled.
the Walker Plaintiffs assert that Stevens and Brewer should
not be afforded absolute immunity under 28 U.S.C. §
2679(b)(1) because several of their alleged acts were
illegal, ultra vires acts. Again, the
ultra vires exception to governmental and sovereign
immunity under Texas law does not address the immunity of
federal employees under federal law. This objection is
the Walker Plaintiffs argue that Rawls should not be granted
prosecutorial immunity from claims asserted under the
Racketeering Influenced and Corrupt Organizations Act
(“RICO”) because his acts of tortious
interference and defamation against Walker were not taken
pursuant to his role as a prosecutor. Nonetheless, as the
court has held numerous times previously in this case,
tortious interference and defamation are not RICO predicate
acts. The magistrate judge's findings of prosecutorial
immunity did not pertain to those state common law claims,
but to the Walker Plaintiffs' RICO claims. Moreover, the
court finds that the magistrate judge correctly found that
Rawls's encouragement of Beaumont Independent School
District (“BISD”) to seek restitution against
Walker was associated with his role as a judicial officer.
Stone v. Fahey, No. 4:13-CV-332-A, 2013 WL 3356399
at *3 (N.D. Tex. July 3, 2013) (extending prosecutorial
immunity to restitution orders). The Walker Plaintiffs'
further assertion that Rawls did so despite BISD's own
finding that Walker had not defrauded it and Walker's own
recommendation that BISD not seek restitution does not change
the appropriateness of prosecutorial immunity. Rykers v.
Alford, 832 F.2d 895, 897 (5th Cir. 1987) (explaining
that a prosecutor is entitled to absolute immunity even when
he acts maliciously, wantonly, or negligently); accord
Rodriguez v. Lewis, 427 F. App'x 352, 353 (5th Cir.
2011). Thus, this objection is overruled.
the Walker Plaintiffs object to the magistrate judge's
finding that Stevens and Brewer are entitled to qualified
immunity against the Walker Plaintiffs' RICO claims
because the Walker Plaintiffs failed to assert any RICO
claims. The Walker Plaintiffs' objections repeat their
arguments made before the magistrate judge, and the court
finds that the magistrate judge correctly analyzed these
issues. Accordingly, the objections are overruled.
Conclusion and Order
foregoing reasons, the court ORDERS that Judge Giblin's
Report and Recommendation (#296) is ADOPTED in its entirety.
The Walker Plaintiffs' Objections (#298) are OVERRULED.
The court further ORDERS that the Federal Defendants'
motion to dismiss (#211) is GRANTED, as set forth in the
report and recommendation.
because this order dispenses with all of Plaintiffs'
claims remaining against Bob Rawls, Deanna Stevens, and
Timothy Brewer, these ...