Keys v. Torres et al

Filing 108

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 101 MOTION to Dismiss All Causes of Action Asserted Against All "Doe" Defendants in the Amended Complaint, 105 Memorandum and Recommendations, 100 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and for Lack of Subject-Matter Jurisdiction (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERT DANIEL KEYS,
Plaintiff,
VS.
CANDACE TORRES, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-350
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court are the following motions to dismiss Plaintiff’s civil
rights action:
(1) Motion to Dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) filed by
Defendants Texas Board of Criminal Justice (“TBCJ”), Texas Department of Criminal
Justice’s Mailroom System Coordinator’s Panel (“MSCP”), and the Director’s Review
Committee (“DRC”) (collectively, “State Agency Defendants”) (D.E. 100); and
(2) Amicus Curiae Motion to Dismiss all causes of action against all John and Jane
Doe Defendants identified in Plaintiff’s Third Amended Complaint (collectively, “Doe
Defendants”) (D.E. 101).
On October 10, 2014, United States Magistrate Judge B. Janice Ellington issued
her Memorandum and Recommendation (M&R) recommending that (1) State Agency
Defendants’ motion to dismiss be granted; (2) Amicus Curiae’s motion to dismiss
unknown, unserved Doe Defendants be granted; (3) Plaintiff’s First Amendment claims
seeking money damages be retained against the following Defendants in their individual
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capacity: Officer Jennifer Smith, Supervisor Kisha Collins, Officer Kandis Torres,
Warden Carol Monroe, David Diaz, and Richard Crites (collectively, “Defendants”); and
(4) Plaintiff’s First Amendment claims seeking money damages against Defendants in
their official capacities be dismissed. D.E. 105, pp. 1-2. This Court received Plaintiff’s
timely-filed objections on October 22, 2014. D.E. 107. The objections are set out and
discussed below.
First, Plaintiff objects to the Magistrate Judge’s conclusion that his claims against
the State Agency Defendants are barred by the Eleventh Amendment. D.E. 105, pp. 6-8.
Although the substance of Plaintiff’s objection is unclear, he seems to interpret the State
Agency Defendants’ Rule 12(b)(1) and Rule 12(b)(6) motion to dismiss as a summary
judgment motion by arguing that dismissal is improper because an issue of material fact
remains.

D.E. 107, p. 3.

Plaintiff does not, however, dispute the State Agency

Defendants’ sovereign immunity. Ruiz v. Price, 84 F. App’x 393, 395 (5th Cir. 2003)
(“The TDCJ and the TBCJ are instrumentalities of the State and are immune from suit
under the Eleventh Amendment.”) (citations omitted). Finding no error in the Magistrate
Judge’s conclusion regarding the claims against the State Agency Defendants, the Court
OVERRULES Plaintiff’s first objection.
Second, Plaintiff objects to the Magistrate Judge’s conclusion that he is precluded
from recovering compensatory damages.

D.E. 105, p. 11-12 (citing 42 U.S.C. §

1997e(e)). Plaintiff, citing cases from outside the Fifth Circuit, argues that he should
recover compensatory damages “because three appeals courts and two district courts
disagree with our circuits [sic] courts in the matter concerning Compensatory Damages
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[sic] awarded in § 1997e(e) First Amendment cases, perhaps later for a Supreme Court
review.” D.E. 107, p. 18. Although a split amongst circuit courts may exist, as the
Magistrate Judge addressed, the Fifth Circuit is clear in its holding that compensatory
damage claims for mental or emotional injuries are barred if the physical injury
requirement of § 1997e(e) is not met. Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir.
2005) (“We agree with the majority of the other federal circuits that have addressed this
issue . . . Section 1997e(e) applies to all federal civil actions in which a prisoner alleges a
constitutional violation, making compensatory damages for mental or emotional injuries
non-recoverable, absent physical injury.”) (footnote omitted). As a result, Plaintiff’s
second objection is OVERRULED.
Third, Plaintiff objects to the Magistrate Judge’s recommendation that the Doe
Defendants be dismissed. D.E. 105, p. 9. Plaintiff argues that some Doe Defendants are
the policymakers who created the mailroom regulation, BP-03.91, that he now challenges
as violating his First Amendment rights.1 D.E. 107, pp. 1-3. This is incorrect. The
MSCP and DRC Doe Defendants play no policymaking role within the TDCJ. Rather,
the proper defendant for Plaintiff’s First Amendment claim against the regulation itself is
his custodian, William Stephens, Director of TDCJ-CID, in his official capacity—
regardless if others were involved. See Prison Legal News v. Livingston, 683 F.3d 201
(5th Cir. 2012) (in action challenging TDCJ’s mail censorship policies on First
Amendment grounds, TDCJ’s executive director was the only named defendant and was
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Specifically, Plaintiff challenges TDCJ’s purported “All-or-Nothing Rule,” arguing that Defendants should have
redacted the offending portions of his magazines and given him the rest. D.E. 97, p. 1-5. See Lindell v.
McCaughtry, 115 F. App’x 872, 879 (9th Cir. 2004).

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sued in his official capacity); cf. Strickland v. Tex. Dept. of Criminal Justice, 2013 WL
6835242 (5th Cir. Dec. 23, 2013) (in action challenging TDCJ’s Jewish inmates’ meal
plan on, inter alia, First Amendment grounds, the court allowed the suit to proceed only
against TDCJ’s executive director).
Consequently, Plaintiff’s third objection is OVERRULED. However, Plaintiff is
GRANTED leave to amend his complaint to assert his First Amendment challenge of the
correspondence policy against TDCJ-CID Director Stephens in his official capacity. In
doing so, the Plaintiff must allege facts against Stephens with the requisite specificity to
survive initial review. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R, as well as Plaintiff’s objections, and all other
relevant documents in the record, and having made a de novo disposition of the portions
of the Magistrate Judge’s M&R to which objections were specifically directed, this Court
OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. D.E. 47. The Plaintiff is GRANTED leave to
amend his complaint to assert his First Amendment claim against TDCJ Director
Stephens in his official capacity. Plaintiff will have thirty days from the filing of this
order to amend his complaint. Accordingly, the State Agency Defendants and Amicus
Curiae’s motions to dismiss (D.E. 100, 101) are GRANTED.
ORDERED this 12th day of January, 2015.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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