Hernandez v. State of Texas, TDCJ-CID et al

Filing 97

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the 87 Motion for Summary Judgment filed by UP Gilmore, Joe Smith, UP Gordon should be granted as to plaintiff's claim for failure to investigate but should be denied as to plaintiff's claim for failure to protect. Signed by Judge Marcia A. Crone on 3/26/13. (mrp, )

UNITED STATES DISTRICT COURT

FLORENCIO HERNANDEZ,
Plaintiff,
versus
STATE OF TEXAS, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:09-CV-55

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Florencio Hernandez, an inmate formerly confined at the Mark Stiles Unit with
the Texas Department of Criminal Justice, Correctional Institutions Division, filed this civil rights
lawsuit pursuant to 42 U.S.C. § 1983 against Defendants Alton Alexander, Warden Joe Smith,
Captain Felix Gordon, and Sergeant Milton Gilmore.
The Court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends defendants’ motion for summary judgment be denied in part
and granted in part. Specifically, the Magistrate Judge recommends defendants’ motion for
summary judgment should be granted as to plaintiff’s claim for failure to investigate but should
be denied as to plaintiff’s claim for failure to protect.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Defendants
filed objections to the Report and Recommendation of United States Magistrate Judge. This

requires a de novo review of the objections in relation to the pleadings and the applicable law. See
FED . R. CIV . P. 72(b).
After careful consideration, the Court finds defendants’ objections are without merit and
that plaintiff has exhausted his administrative remedies as to his claim for failure to protect against
Defendants Gilmore, Gordon and Smith. See Johnson v. Johnson, 385 F.3d 503, 522 (citing
Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003) (prisoners should be permitted to provide
“additional factual detail” at the appellate stage of the grievance process)).
ORDER
Accordingly, the objections of defendants are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 26th day of March, 2013.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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