Chao v. DARS of Texas et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 44 Report and Recommendation. ORDERED Plaintiff's claims against the Department of Assistive and Rehabilitative Services of Texas (DARS) and Cheryl Fuller, E mily Davis, and Ronald L. Johnson in their official capacities are DISMISSED WITHOUT PREJUDICE. It is further ORDERED Plaintiff's claims against Cheryl Fuller, Emily Davis, and Ronald L. Johnson in their individual capacities are DISMISSED WITH PREJUDICE. All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil action. Signed by Judge Ron Clark on 10/26/2015. (kls, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JAMES T. CHAO,
Plaintiff,
V.
DARS OF TEXAS, ET AL.,
Defendants.

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CASE NO. 4:15cv169
Chief Judge Clark/Judge Craven

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On August 24, 2015, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that DARS Defendants’ Motion to Dismiss (Doc. # 22) be
granted; that Plaintiff’s claims against DARS and three individuals employed with DARS (Cheryl
Fuller, Emily Davis, and Ronald L. Johnson) in their official capacities be dismissed without
prejudice; and that Plaintiff’s claims against Cheryl Fuller, Emily Davis, and Ronald L. Johnson in
their individual capacities be dismissed with prejudice.
On September 23, 2015, the Magistrate Judge granted the pro se Plaintiff’s motion to extend
time to file written objections to the Report and Recommendation. The Magistrate Judge ordered
Plaintiff to file objections to the August 24 Report and Recommendation on or before October 5,
2015.1 The Magistrate Judge advised Plaintiff that failure to file objections on or before October
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The September 23 Order was mailed to Plaintiff via certified mail that same day.
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5 would bar Plaintiff from de novo review by the Court.
Two days after the deadline for filing objections, Plaintiff filed objections to the Report and
Recommendation, asserting no due process hearing was ever held and he suffered material loss of
property rights.2 Because the objections were received after October 5, Plaintiff is barred from de
novo review by the Court. However, even if the Court were to consider the objections as timely
filed, the Court would find the objections without merit, as the objections do not address the reasons
for dismissing the case outlined in the Magistrate Judge’s Report and Recommendation.3
Plaintiff’s objections can be summarized as follows: (1) a due process hearing was never
legally held; (2) a due process hearing report was never legally provided; (3) a court case for judicial
review was never completed; (4) Plaintiff suffered material loss of property rights and “others;” and
(5) DARS provided no evidence to support its position. None of these objections address the
Magistrate Judge’s Findings that DARS is entitled to Eleventh Amendment immunity, that Fuller,
Johnson, and Davis are entitled to Eleventh Amendment immunity for claims against them in their

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Defendants timely responded to Plaintiff’s objections, arguing that the court should
overrule the objections because (1) the objections were untimely filed, and (2) none of Plaintiff’s
objections responded to any of the rulings made by the Magistrate Judge in her Report and
Recommendation.
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The Magistrate Judge recommended dismissing Plaintiff’s claims against DARS
because DARS, as a state agency, is entitled to Eleventh Amendment immunity, which has not
been waived. Likewise, the Magistrate Judge recommended dismissing Plaintiff’s claims against
Fuller, Johnson, and Davis in their official capacities because they too, were entitled to immunity
under the Eleventh Amendment. The Magistrate Judge also found that Fuller, Johnson, and
Davis were entitled to qualified immunity regarding Plaintiff’s claims against them in their
individual capacity because Plaintiff failed to allege any facts indicating that Fuller, Davis, and
Johnson had violated a clearly established right or that their actions were objectively
unreasonable.
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official capacity,4 or that Fuller, Johnson, and Davis are entitled to qualified immunity for claims
against them in their individual capacity.
Having received the Report and Recommendation of the United States Magistrate Judge, and
no objections thereto having been timely filed, this Court is of the opinion the findings and
conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the
findings and conclusions of the Court. It is therefore
ORDERED Plaintiff’s claims against the Department of Assistive and Rehabilitative
Services of Texas (“DARS”) and Cheryl Fuller, Emily Davis, and Ronald L. Johnson in their official
capacities are DISMISSED WITHOUT PREJUDICE. It is further
ORDERED Plaintiff’s claims against Cheryl Fuller, Emily Davis, and Ronald L. Johnson
in their individual capacities are DISMISSED WITH PREJUDICE.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
So ORDERED and SIGNED this 26 day of October, 2015.

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Ron Clark, United States District Judge

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“[A] suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989).
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