COMPEAN v. VASQUEZ

Civil Action No. 5:16-CV-035-C.

ISMEAL COMPEAN, Institutional ID No. 1813267, SID NO. 8138914, Plaintiff, v. OLIVER VASQUEZ, Lt., et al., Defendants.

United States District Court, N.D. Texas, Lubbock Division.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner Pet / Other: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Ismeal Compean, Plaintiff, Pro Se.

Oliver Vasquez, Defendant, represented by Leah Jean O'Leary , Office of the Attorney General.

Sgt Alcario Garcia, Jr, Defendant, represented by Leah Jean O'Leary , Office of the Attorney General.

Rafael Esquivel, Defendant, represented by Leah Jean O'Leary , Office of the Attorney General.

Kevin Jarvis, Defendant, represented by Leah Jean O'Leary , Office of the Attorney General.

Office of the Attorney General for the State of Texas as Amicus Curiae, Amicus, represented by Leah Jean O'Leary , Office of the Attorney General.


ORDER

SAM R. CUMMINGS, District Judge.

Plaintiff, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Lt. Oliver Vasquez; Sgt. Alcario Garcia, Jr.; Rafael Esquivel; Kevin Jarvis; and Dustin Spaggiari, employees of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") Preston Smith Unit, as Defendants.1 Plaintiff claims that on September 7, 2015, Defendants Jarvis, Esquivel, and Spaggiari subjected him to excessive force and that Defendants Vasquez and Garcia failed to intervene to stop said use of force in violation of the Eighth Amendment. Plaintiff seeks declaratory relief, as well as compensatory and punitive damages.

The complaint was transferred to the docket of the United States Magistrate Judge, who held a hearing pursuant to Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), on November 3, 2016. Plaintiff consented to proceed before the United States Magistrate Judge prior to the Spears hearing. Following the Spears hearing, the Magistrate Judge found that Plaintiff had stated claims of constitutional violation sufficient to require an answer and on January 4, 2017, ordered Defendants to file answers or other responsive pleadings. On February 3, 2017, the Attorney General filed an Answer on behalf of Defendants Alcario Garcia, Jr., Oliver Vasquez, and Rafael Esquivel. On March 1, 2017, the Attorney General filed an Answer on behalf of Defendant Kevin Jarvis. Despite being personally served by the United States Marshal, Defendant Dustin Spaggiari had not filed an Answer as of the date of the Report and Recommendation; or at the time of this Order.

The Defendants failed to consent to the jurisdiction of the Magistrate Judge, and pursuant to this Court's Order entered on March 10, 2016, the Magistrate Judge entered a Report and Recommendation regarding the disposition of Plaintiff's complaint and transferred the case back to this Court on April 21, 2017. No objections to the Report and Recommendation have been filed, and the time to do so has expired.

In the Report and Recommendation, the Magistrate Judge recommended that this Court enter a scheduling order as well as a show cause order as to Defendant Spaggiari, requiring him to file an answer or other responsive pleading and show cause why he should not be held in contempt for failing to comply with the court's January 4, 2017 order to answer.

This Court has reviewed the Report and Recommendation of the United States Magistrate Judge for clear error and finds none. The Court finds that the Report and Recommendation of the United States Magistrate Judge should be adopted. Entry of a scheduling order will be withheld until after entry of a separate Show Cause Order, with appropriate time for Defendant Spaggiari to file his answer.

SO ORDERED.

FootNotes


1. Plaintiff initially named three "John Doe" Defendants who were later identified as Defendants Esquivel, Jarvis, and Spaggiari.

Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases