Poree v. Presswood et al
MEMORANDUM ORDER Overruling Objections and Adopting the 80 Report and Recommendation. The 64 Motion for Summary Judgment, filed by Rochelle P Rogers, is granted. A final judgment shall be entered dismissing this lawsuit. Signed by District Judge Marcia A. Crone on 2/16/21. (kcv, )
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UNITED STATES DISTRICT COURT
ROCHELLE P. ROGERS,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:17-CV-529
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Esau Poree, an inmate at the Lewis Unit of the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro se, filed this civil rights lawsuit pursuant against
Rochelle P. Rogers. The court referred this matter to the Honorable Keith F. Giblin, United
States Magistrate Judge, for consideration pursuant to applicable laws and orders of this court.
The defendant has filed a motion for summary judgment. The magistrate judge has
submitted a Report and Recommendation of United States Magistrate Judge recommending the
motion be granted.
The court has received the Report and Recommendation, along with the record, pleadings,
and all available evidence. Plaintiff filed objections to the Report and Recommendation. The
court must therefore conduct a de novo review of the objections in relation to the pleadings and
the applicable law.
Plaintiff alleges the defendant failed to protect him from being assaulted by a fellow
Plaintiff states he told the defendant he should not be housed with a member of
the Mandingo Warriors or the Crips. He states the defendant agreed with him. Nevertheless, he
was placed in a cell with a Mandingo Warrior. Plaintiff was subsequently assaulted by gang
In recommending the motion for summary judgment be granted, the magistrate judge found
plaintiff had not alleged the defendant was the official who assigned him to the cell or that she was
aware he had been placed in a cell with a Mandingo Warrior. As a result, the magistrate judge
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concluded that, to the extent the defendant was sued in her individual capacity, she was entitled
to qualified immunity because plaintiff failed to show she acted with deliberate indifference to
To the extent the defendant was sued in her official capacity, the magistrate
judge concluded that a claim for money damages was barred by the Eleventh Amendment
to the Constitution.
In his objections, plaintiff states he filed an emergency grievance against the defendant after
being placed in a cell with a gang member. He also questions how the defendant, a safe prison
supervisor, could not have known he was placed in the wrong cell.
In order for the defendant to be liable in this action, plaintiff must show she was aware he
was exposed to a substantial risk of serious harm and that she consciously disregarded the risk.
Adams v. Perez, 311 F.3d 508, 512 (5th Cir. 2003). The magistrate judge correctly concluded
plaintiff failed to satisfy this burden. Plaintiff has submitted no competent summary judgment
evidence demonstrating the defendant was aware he had been placed in a cell with a gang member.
While plaintiff wrote a grievance against her, he has not shown she ever saw the grievance.
Another prison official responded to the grievance. Nor has plaintiff otherwise shown the
defendant knew he had been placed in a cell with someone who was likely to harm him. As a
result, the defendant is entitled to summary judgment in this matter.
Accordingly, the objections filed by plaintiff 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. The motion for summary judgment is GRANTED. A final judgment shall be
entered dismissing this lawsuit.
SIGNED at Beaumont, Texas, this 16th day of February, 2021.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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