The opinion
IN THE UNITED STATES DISTRICT COURT February 20, 2020
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
CORPUS CHRISTI DIVISION
JOSEPH F. WEAVER, §
§
Plaintiff, §
VS. § CIVIL NO. 2:17-CV-388
§
ERICK ECHAVARRY, et al, §
§
Defendants. §
ORDER
The Court is in receipt of the Magistrate Judge’s Memorandum and
Recommendation (“M&R”) to Deny Defendant Echavarry’s Motion for Summary
Judgment, Dkt. No. 53. The Court is also in receipt of Defendant Erick Echavarry
(“Echavarry”) Objections to the M&R, Dkt. No. 55. For the reasons discussed below
the Court ADOPTS the M&R.
I. M&R
The Magistrate Judge proposed the Court conclude that Echavarry is not
entitled to qualified immunity and recommended denying his summary judgment
motion, Dkt. No. 46, regarding Plaintiff Joseph F. Weaver’s (“Weaver”) deliberate
indifference claim against Echavarry. Dkt. No. 53 at 20. The Magistrate Judge
recommends this Court conclude that based on the competent summary judgment
evidence fact issues exist regarding whether Echavarry’s conduct was reasonable.
Dkt. No. 53 at 20-21.1
The Court reviews objected-to portions of a Magistrate Judge’s proposed findings
and recommendations de novo. 28 U.S.C. § 636(b)(1). But if the objections are
frivolous, conclusive or general in nature the court need not conduct a de novo
review. Battle v. United States Parole Comm’n, 834 F.2d 419 (5th Cir. 1987).
1 The M&R mistakenly refers to Echavarry as Corbett on page 20, the Court does not adopt this statement and
instead substitutes in Echavarry’s name. Dkt. No. 53 at 20.
Echavarry objects on the grounds that “there is no clearly established law or
evidence that Plaintiff’s transportation to Galveston in March 2016 versus January
2016, or Defendant’s involvement therein, rises to the level of a constitutional
violation at all.” Dkt. No. 55 at 2. Echavarry further objects that the M&R
improperly focuses on the lack of evidence concerning transportation of inmates to
find potential liability while ignoring a “wealth” of evidence demonstrating
Echavarry’s proper treatment of Weaver and attempts to facilitate transportation.
Id.
II. Analysis
The Magistrate Judge adequately addresses all of Echavarry’s objections in the
M&R, the objections also rehash issues already raised in the briefing of the
summary judgment motion. See Battle, 834 F.2d 419; Dkt. No. 46.
Echavarry’s objects “that there is no clearly established law or evidence” that
Weaver’s treatment and transportation rises to the level of a constitutional violation
at all. Echavarry cites Lincoln v. Turner for the proposition that that the burden is
on the Plaintiff to demonstrate the relevant law is clearly established. See Dkt. No.
55 at 2; Lincoln v. Turner, 874 F.3d 833, 849 (5th Cir. 2017). First, Echavarry’s
objection conflates the standards of law and fact that are employed in a summary
judgment motion. See Dkt. No. 55 at 2. As the Magistrate Judge states: “Summary
judgment is proper if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).” Dkt.
No. 53 at 10 (emphasis added). While regarding qualified immunity the Magistrate
Judge clearly states the burden and standard required:
“The usual summary judgment burden of proof is altered in the case of a
qualified immunity defense. See Michalik v. Hermann, 422 F.3d 252, 262 (5th
Cir. 2005). When a government official has pled the defense of qualified
immunity, the burden is on the plaintiff to establish that the official’s conduct
violated clearly established law. Id.” Dkt. No. 53 at 12.
Employing these standards, the Magistrate Judge demonstrates how Weaver had
satisfied the first and second steps of his burden to show clearly established law and
a genuine issue of material fact concerning the reasonableness of the officials
conduct as required to defeat a qualified immunity defense. Dkt. No. 53 at 12; see
Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001). The Magistrate Judge
explains the clearly established constitutional right of the Eighth Amendment’s
protection from cruel and unusual punishment, the doctrine of deliberate
indifference, and how a wanton delay in medical care that causes substantial harm
meets this standard. Dkt. No. 53 at 14-15. The Magistrate Judge states at length
how a reasonable prison official would have known that an over seventy day delay
in medical treatment to a person in severe pain with broken bones is unlawful. Dkt
No. 53 at 18-19; see Hope v. Pelzer, 536 U.S. 730, 739 (2002); Easter v. Powell, 467
F.3d 459, 464 (5th Cir. 2006).
“Based on the evidence presented before the Court, a jury could find that
Defendant Echavarry acted with deliberate indifference to Plaintiff’s serious
needs by failing to ensure him timely transportation to the Hospital
Galveston and that such actions resulted in both an unconstitutional delay in
his medical care as well as substantial harm to him”
Dkt. No. 53 at 19.
Echavarry objects that the M&R ignores his proper treatment of Weaver and
attempts to facilitate transportation to additional care. Dkt. No. 55 at 2. He objects
that: “[t]here is no basic evidence of any duty of Defendant to physically have
Plaintiff transported anywhere.” Dkt. No. 55 at 3. This assertion is made without
citation. See id. The Magistrate Judge addressed Echavarry’s duty of care as a
medical provider to ensure treatment and Echevarry’s failure to produce evidence
demonstrating the absence of such a duty:
“Defendant Echavarry argues that he initiated Plaintiff’s scheduled
treatment at the Hospital Galveston for his right hand fracture. He makes no
argument with regard to whether he had any control over Plaintiff’s
transportation to the hospital. The summary judgment record is devoid of
evidence outlining and explaining the process by which injured inmates are
scheduled for surgery and brought to the surgical center. It is reasonable to
infer that it would be the medical provider’s responsibility to ensure that the
inmate’s medical needs are addressed.”
Dkt. No. 53 at 17.
Finally, Echavarry objects that Weaver is not being held to a “basic
evidentiary burden beyond mere self-serving assertions.” Dkt. No. 55 at 4 (citing
Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed. Appx 306, 309 (5th Cir. 2011)). The
Magistrate Judge correctly states the standard for evidence that can be considered
in summary judgment and applies the standard to the evidence before the Court.
See Dkt. No. 53 at 3-4. The Magistrate Judge states that the “verified complaint and
sworn interrogatory answers of the pro se litigant can be considered as summary
judgment evidence to the extent that such pleadings comport with the requirements
of current Rule 56(c).” Dkt. No. 53 at 3 (citing Mengele v. AT&T Servs. Inc., No. 3:15-
cv-3934, 2017 WL 3835871, at *3 (N.D. Tex. Aug. 9, 2017)); see King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (citing the same proposition). The Magistrate Judge
writes: “The undersigned, therefore, will not consider parts of Plaintiff’s verified
complaint that are not made on personal knowledge or that would be inadmissible
in evidence. See Fed. R. Civ. P. 56(c)(4).” Dkt. No. 53 at 4.
The Magistrate Judge reviewed the summary judgment evidence that met
the Rule 56 standard including: Weaver’s verified complaint; Weaver’s affidavit and
medical records, and the evidence submitted by Echavarry in support of his motion
for summary judgment. Dkt. No. 53 at 4-10. This thorough review of the summary
judgment evidence was consistent with the appropriate legal standard and was not
based on “mere self-serving assertions” of Weaver. See id.; Dkt. No. 55 at 4; Tyler,
426 Fed. Appx at 309.
III. Conclusion
After independently reviewing the record and considering the applicable law the
Court ADOPTS the Memorandum and Recommendation, Dkt. No. 53. For the
reasons discussed above, the Court OVERRULES Defendant’s objections, Dkt. No.
55. The Court hereby DENIES Defendant’s Motion for Summary Judgment, Dkt.
No. 46.
SIGNED this 19th day of February, 2020.
Hilda Tagle
Senior United States District Judge
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