Hernandez et al., v. Abbott et al.

Filing 86

ORDER adopting the magistrate judge's 84 Report and Recommendation. Ordered that plaintiff's Fourteenth and Eighth Amendment claims pursuant to 42:1983 against defendants Collier, Harris, Grant, Shriver and Butcher as outlined in the Report and Recommendation entered August 24, 2020 are severed from this action. Signed by District Judge Ron Clark on 9/15/2020q. (bjc, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JASON J. HERNANDEZ

§

VS.

§

GREG ABBOTT, et al.,

§

CIVIL ACTION NO. 9:17-CV-23

ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Jason J. Hernandez, an inmate confined at the Polunsky Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil
rights action pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act (“RA”) against the following defendants: Governor Greg Abbott, TDCJ
Executive Director Brian Collier, Robert Grant, Tod Harris, Eva Shiver, and Michael Butcher.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge,
at Lufkin, Texas, for consideration pursuant to applicable laws and orders of this Court. The
Magistrate Judge recommends the following: (1) granting defendant Abbott’s Motion to Dismiss in
its entirety, (2) dismissing plaintiff’s ADA and RA claims against all the defendants for lack of
subject matter jurisdiction and for failure to state a claim, (3) dismissing plaintiff’s official capacity
claims against all the defendants for money damages for lack of subject matter jurisdiction, and (4)
denying defendant Collier, Harris, Grant, Shiver and Butcher’s 12(b)(1) and 12(b)(6) Motion to
Dismiss requesting dismissal of plaintiff’s Fourteenth and Eighth Amendment claims.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge were filed by the parties.

ORDER
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct,
and the report of the Magistrate Judge is ACCEPTED. A Final Judgment will be entered in
accordance with the recommendations of the Magistrate Judge. It is, further,
ORDERED that plaintiff’s Fourteenth and Eighth Amendment claims pursuant to 42 U.S.C.
§ 1983 against defendants Collier, Harris, Grant, Shriver and Butcher as outlined in the Report and
Recommendation entered August 24, 2020 are SEVERED from this action. The resulting case
should be assigned to the regular practice for numbering and allotment of newly-filed civil
actions.
So ORDERED and SIGNED, Sep 15, 2020.

____________________
Ron Clark
Senior Judge

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