govinfo:USCOURTS-txed-9_19-cv-00093-1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
RAUL GERARDO FAVELA, JR. §
VS. § CIVIL ACTION NO. 9:19cv93
BRYAN COLLIER, ET AL. §
ORDER OVERRULING OBJECTIONS AND ADOPTING 
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Raul Gerardo Favela, Jr. through counsel, filed the above-styled lawsuit pursuant 
to 42 U.S.C. § 1983.  Plaintiff alleges the defendants failed to protect him from being attacked by 
other inmates. The court prev iously referred this matter to the Honorable Christine L. Stetson, 
United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 
and applicable orders of this court. 
The defendants f iled separate motions for summary jud gment.  The magistrate judge has 
submitted a Repor t and Recommendation of United States Magistrate Judge recommending the 
motions be granted.
The court has received and considered the Report and Recommendation of United States 
Magistrate Judge, along with the record and pleadings.  Plaintiff filed objections to the Report and 
Recommendation.  The court must therefore conduct a de novo review of the objections. 
The magistrate judge’s recommendation was based on the conclusion that there was not a 
genuine issue of material fact as to whether plaintiff exhausted his administrative remedies before 
filing this lawsuit.  Plaintiff filed a declaration stating that he filed a grievance within about 5 days 
of the attack.  In the grievance, he complained his injuries were the re sult of officials ignoring 
requests that he be moved because he was in danger.  He also stated he filed an appeal concerning 
the matters raised in his initial grievance.  In his objections, plaintiff contends that the assertions in 
his declaration are sufficient to create a fact issue concerning exhaustion of administrative remedies.
In Kidd v. Livingston, 463 F. App’x 311, 313  (5th Cir. 2012), the United States Co urt of 
Appeals for the Fifth Circuit held that in that case the plaintiff’s conclu sory assertions that he
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exhausted administrative remedies and  his production of an u nprocessed grievan ce form were 
insufficient to cr eated a genuine dispute as to whether the plaintif f exhausted administrativ e 
remedies.  The plaintiff in Kidd asserted he timely filed a grievance and pr oduced a copy of an 
unprocessed grievance form.  The evidence of exhaustion in this case is substantially similar to the 
evidence in Kidd.  As a result, the evidence in this case is insufficient to create a genuine issue of 
material fact as to whether  plaintiff exhausted his administrativ e remedies.  His objections are 
therefore without merit.
ORDER
Accordingly, plaintiff’s objectio ns are OVERRULED.  The findings of f act an d th e 
conclusions of law of the magistrate judge are correct and the report of the magistrate judge is 
ADOPTED as the opinion of the court.   The motion for summary judgmen t filed by defendants 
Alford, Collier and Livi ngston (doc. no. 37) an d the motion for summary judgment filed  by 
defendant Haynes (doc. no. 40) are GRANTED.  A final judgment shall be entered in accordance 
with the recommendation of the magistrate judge.
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