Richard Tubby et al v. Officer David Allen et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, 17 Report and Recommendations. The Memorandum Order dated May 2, 2017 (docket no. 28) is hereby WITHDRAWN and this Order is substituted in its place. This Order shall be effective as of May 2, 2017. It is further ORDERED that the motions to dismiss filed by the Defendants Warden Todd Harris 11 and the Texas Department of Criminal Justice 10 are GRANTED and the Plaintiff's claims against t hese Defendants are DISMISSED WITH PREJUDICE. Warden Harris and TDCJ are DISMISSED as parties to the lawsuit. The dismissal of these claims and parties shall have no effect upon the Plaintiff's claims against Officer David Allen. Signed by Judge Robert W. Schroeder, III on 5/8/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
RICHARD TUBBY

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v.

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DAVID ALLEN, ET AL.

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CIVIL ACTION NO. 6:16cv972

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANTS WARDEN HARRIS AND TDCJ
The Memorandum Order dated May 2, 2017 (docket no. 28) is hereby WITHDRAWN and
the following is substituted in its place. This Order shall be effective as of May 2, 2017.
The Plaintiff Richard Tubby, proceeding through retained counsel, 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 former TDCJ Officer David Allen, Warden
Todd Harris, and the Texas Department of Criminal Justice.
Tubby complains Officer Allen sexually assaulted him and Warden Harris interfered with
the investigation of the assault. He also claimed Warden Harris and TDCJ had customs, practices,
and policies of allowing the physical abuse of prisoners in the facility and covering up misconduct
by officers. He asserted the prison officials created “makeshift showers” in the laundry area
permitting certain chosen inmate to shower outside of the general shower area, giving these inmates
more privacy, longer shower times, and “an ability for other private contact to take place outside the

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standard shower area. As a result, Tubby stated Allen had the ability and facility to sexually abuse
Plaintiff and other inmates as a condition of their confinement.
Warden Harris and TDCJ filed separate motions to dismiss the claims against them. After
review of the pleadings, the Magistrate Judge issued Reports recommending that these motions be
granted. No objections have been received to the 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 record in this cause and the Reports of the Magistrate Judge.
Upon such review, the Court has determined that the Reports of the Magistrate Judge are 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
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is “clearly erroneous, abuse of discretion and contrary to law.”) It is accordingly
ORDERED that the Reports of the Magistrate Judge (docket no.’s 16 and 17) are
ADOPTED as the opinion of the District Court. It is further
ORDERED that the motions to dismiss filed by the Defendants Warden Todd Harris (docket
no. 11) and the Texas Department of Criminal Justice (docket no. 10) are GRANTED and the
Plaintiff’s claims against these Defendants are DISMISSED WITH PREJUDICE. Warden Harris
and TDCJ are DISMISSED as parties to the lawsuit. The dismissal of these claims and parties shall
have no effect upon the Plaintiff’s claims against Officer David Allen.
SIGNED this 8th day of May, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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