Herrera v. Texas Department of Criminal Justice et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 32 Report and Recommendations, 27 Motion to Dismiss filed by Sertander Jefferson, 33 Report and Recommendations, 10 Motion to Dismiss filed by Texas Department of Criminal Justice, 31 Report and Recommendations, 18 Motion for Summary Judgment filed by Michael Collum, FNU Sullivan, Brad Moore, Jason Smith. Signed by Judge Robert W. Schroeder, III on 08/04/2015. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RICARDO HERRERA

§

v.

§

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, ET AL.

§

CIVIL ACTION NO. 5:14cv18

MEMORANDUM ADOPTING REPORTS AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Ricardo Herrera, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges. The named Defendants are the Texas Department of Criminal Justice, Correctional
Institutions Division, Sgt. Sullivan, Brad Moore, Major Michael Collum, Lt. Jason Smith, three
unknown members of the “TDCJ Regional Search Team,” and Officer Sertander Jefferson.
Herrera complained about a use of force incident allegedly occurring on October 25, 2012
and asserted the Defendants falsified government documents in an attempt to protect themselves and
other prison employees. The Defendants Collum, Moore, Smith, and Sullivan filed a motion for
summary judgment asserting their entitlement to qualified and Eleventh Amendment immunity. The
Defendants Sertander Jefferson and the Texas Department of Criminal Justice, Correctional
Institutions Division filed separate motions to dismiss.
The Magistrate Judge issued a Report recommending the motion for summary judgment
filed by Collum, Moore, Smith, and Sullivan be granted as to Herrera’s claim of falsification
1

of government documents and with regard to any claims for monetary damages brought against
the Defendants in their official capacities, and the motion be in all other respects denied.
The Magistrate Judge also issued Reports recommending the motions to dismiss filed by Officer
Jefferson and the Texas Department of Criminal Justice, Correctional Institutions Division be
granted.
No objections were filed to any of these Reports; accordingly, the parties are barred from de
novo review by the district judge of those findings, conclusions, and recommendations and, except
upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Services Automobile
Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243
(1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is
“clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Reports of the Magistrate Judge (docket no.’s 31, 32, and 33) are
ADOPTED as the opinion of the District Court. It is further
ORDERED that the motion for summary judgment (docket no. 18) filed by the Defendants
Collum, Sullivan, Moore, and Smith is GRANTED as to the Plaintiff’s claim of falsification of
government documents and with regard to any claims for monetary damages brought against the
Defendants in their official capacities. Those claims are hereby DISMISSED with prejudice. The
Defendants’ motion for summary judgment is in all other respects DENIED. It is further
2

.

ORDERED that the motions to dismiss filed by the Defendants Sertander Jefferson (docket
no. 27) and the Texas Department of Criminal Justice, Correctional Institutions Division (docket no.
10) are GRANTED. The claims against these parties are DISMISSED with prejudice and they are
terminated as parties to the lawsuit.
SIGNED this 4th day of August, 2015.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

3