Hawes v. Stephens

Filing 33

ORDER adopting 30 Report and Recommendation. Ordered that the Defendants' motions to dismiss and amended motions to dismiss (docket no.'s 17, 18, 21, 26, and 27) are denied. ordered that the Defendant Pamela Pace having already filed an answer, the Defendants Stephens and Brad Livingston shall have 30 days from the date of entry of this order in which to answer the lawsuit or otherwise plead. Ordered that all of the deadlines in the Court's scheduling order (doc no 14) shall commence to run as of the date of filing of the Defendants Stephens and Livingston's answer. Signed by Judge Ron Clark on 8/22/2017. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROGER HAWES

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v.

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WILLIAM STEPHENS, ET AL.

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CIVIL ACTION NO. 6:16cv442

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
The Plaintiff Roger Hawes, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged deprivations of his constitutional rights. This Court ordered that the
matter 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 TDCJ-CID Director William Stephens, TDCJ
Executive Director Brad Livingston, and Michael Unit practice manager Pam Pace.
Hawes contends that he has been deprived of money in that a $100.00 medical co-pay was
garnished from his TDCJ-CID trust account. Hawes asserts that his sole source of income comes
from veterans benefits, which he states are exempt from garnishment under 38 U.S.C. §5301.
The Defendant Pam Pace has filed a motion to dismiss and amended motion to dismiss
invoking qualified and Eleventh Amendment immunity and arguing that she lacked personal
involvement. The Defendants Stephens and Livingston filed a motion to dismiss and amended
motion to dismiss claiming that Hawes failed to exhaust his administrative remedies against them,
Hawes’ claims against them are wholly conclusory, there is no supervisory liability under §1983,
they had no personal involvement, and they are entitled to qualified and Eleventh Amendment
immunity. Hawes filed responses to the motions to dismiss.

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After review of the pleadings, the Magistrate Judge issued a Report recommending that the
Defendants’ motions to dismiss be denied. No objections to the Report were filed; 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 unobjectedto proposed 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 that 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 Report of the Magistrate Judge (docket no. 30) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the Defendants’ motions to dismiss and amended motions to dismiss
(docket no.’s 17, 18, 21, 26, and 27) are DENIED. It is further
ORDERED that the Defendant Pamela Pace having already filed an answer, the Defendants
William Stephens and Brad Livingston shall have 30 days from the date of entry of this order in
which to answer the lawsuit or otherwise plead. It is further
ORDERED that all of the deadlines in the Court’s scheduling order (docket no. 14) shall
commence to run as of the date of filing of the Defendants Stephens and Livingston’s answer.
So ORDERED and SIGNED this 22 day of August, 2017.

___________________________________
Ron Clark, United States District Judge

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