Keys v. Torres et al

Filing 168

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS GRANTING 140 MOTION for Summary Judgment . CASE DISMISSED WITH PREJUDICE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amartinez, 2)

United States District Court
Southern District of Texas

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

October 18, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:12-CV-350
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ORDER

Pending before the Court is Defendants’ Motion for Summary Judgment (D.E.
140). On December 9, 2015, United States Magistrate Judge B. Janice Ellington issued a
Memorandum and Recommendation (M&R, D.E. 156), recommending that Defendants’
Motion for Summary Judgment be granted. The parties filed no objections, and the Court
adopted the M&R on January 11, 2016. Thereafter, on January 21, 2016, Plaintiff filed
his Motion to Alter or Amend the Judgment (D.E. 159) informing the Court that he had
not been notified of the M&R. The Court granted Plaintiff’s motion and ordered him to
submit his objections. The Court has received Plaintiff’s timely filed objections (D.E.
167).
Rather than assert targeted objections to specific fact findings or conclusions of
law as required by 28 U.S.C. § 636(b)(1), Plaintiff has filed a reiteration of his
arguments. So as to avoid a finding that Plaintiff has waived his objections, the Court
liberally construes his brief. United States v. Gonzalez, 592 F.3d 675, 680 n. 3 (5th Cir.
2009). Consequently, the Court has identified ten objections for consideration.
1

Plaintiff’s first objection is to the Magistrate Judge’s conclusion that Plaintiff
failed to exhaust administrative remedies with respect to the maps Plaintiff contends were
seized by Defendants Crites and Diaz.1 The Magistrate Judge concluded that Plaintiff’s
claim was unexhausted because Defendants offered undisputed evidence that Plaintiff did
not follow the State’s two-step grievance procedures.2 Plaintiff objects by arguing that he
did dispute the evidence.
Plaintiff stated in his response that he did follow the relevant procedures by filing
a step 1 and step 2 grievance. D.E. 151, p. 10. However, as correctly noted by the
Magistrate Judge, Plaintiff offers no evidence to support his assertion. See Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (“We resolve factual controversies
in favor of the nonmoving party, but only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.”). Plaintiff does not
substantiate his assertions with any evidence such as affidavits or declarations. Fed. R.
Civ. P. 56(c)(1)(A). Plaintiff states that he is willing to testify as to these facts, but to
defeat summary judgment, he was required to offer evidence in the record that would
create a genuine dispute of fact. Id.; see also Little, 37 F.3d at 1075 (“We do not . . .

1

“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
2

The Texas prison system has developed a two-part formal grievance process, both steps of which must be
completed before a prisoner's administrative remedies are considered exhausted. See Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). The step 1 grievance, which
must be filed within fifteen days of the complained-of incident, is handled within the prisoner's facility. See
Johnson, 358 F.3d at 515. After an adverse decision at step 1, the prisoner has ten days to file a step 2 grievance,
which is handled at the state level. See id.; see also Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (outlining
the TDCJ grievance process in more detail).

2

assume that the nonmoving party could or would prove the necessary facts.”).3
Accordingly, Plaintiff’s first objection is OVERRULED.
Plaintiff’s second objection is that Texas Department of Criminal Justice’s
(TDCJ’s) correspondence review procedures violate due process protections because
inmates cannot present arguments to the committees in charge of censorship. D.E. 167,
p. 6. The version of the Uniform Offender Correspondence Rules, Board Policy 03.91
(BP 03.91) in effect at the time Plaintiff’s publications were rejected allowed prisoners to
submit a notice of appeal after the prison’s mailroom staff rejected a correspondence. BP
03.91 (D.E. 140-8, p. 14). The publication would then be sent to the Director’s Review
Committee (DRC), which could either review it or delegate such duties to the Mail
Systems Coordinators Panel (MSCP). The DRC/MSCP would review the publication
and determine whether it was properly rejected without any input from the prisoner or the
sender.4 See Prison Litigation News v. Livingston, 683 F.3d 201, 208-09 (5th Cir. 2012)
(describing the appeals process under BP 03.91).
Plaintiff argues that by not allowing him an opportunity to be heard before
rejecting his publications, the DRC/MSCP deprives him of property without due

3

Plaintiff has submitted over four hundred pages of exhibits, but he points to none that would support his
assertions. In his objections, he cites only to his response, and his response did not point out any evidence either.
See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“When evidence exists in the summary judgment record
but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not
properly before the district court.”).
4
The current version of BP 03.91, as amended in 2013, allows prisoners to submit evidence and written arguments
in support of their appeals to DRC/MSCP.

3

process.5 However, under this former version of BP 03.91, a prisoner could challenge a
DRC/MSCP determination by filing step 1 and step 2 grievances so the rejection would
not be final until an inmate had exhausted administrative remedies. D.E. 152-4, p. 25.
The evidence provided by Plaintiff shows that he and other prisoners have successfully
used the prison grievance system to challenge mailroom rejections. D.E. 153, p. 10; D.E.
152-8, pp. 32-35.
The Fourteenth Amendment Due Process Clause guaranties that life, liberty, or
property may not be taken without due process of law. U.S. Const. amend. XIV, § 1; see
also McCrae v. Hankins, 720 F.3d 863, 869 (5th Cir. 1983) (“[W]hen inmates are
afforded the opportunity . . . to possess personal property, they enjoy a protected interest
in that property that cannot be infringed without due process.”). At a minimum, due
process requires that any deprivation of a protected interest “be preceded by notice and
opportunity for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950). The requirements of due process are
“flexible and call for such procedural protections as the particular situation demands.”
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The Supreme Court has stated that the
proper framework for considering whether a person has been afforded sufficient
procedural protections requires consideration of three distinct factors:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
5

Plaintiff cites Londoner v. City and Cnty. of Denver, 210 U.S. 373, 379 (1908); Grannis v. Ordean, 234 U.S. 385,
394 (1914); Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972); Wolff v. McDonnell, 418 U.S. 539, 563 (1974);
Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978).

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finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.
Matthews v. Eldridge, 424 U.S. 319, 335 (2005); see also Wilkinson v. Austin, 545 U.S.
209, 224-25 (2005) (applying the Matthews factors in a prison context). By weighing
these factors, courts can determine whether a state has met the fundamental requirements
of due process by affording an opportunity to be heard at a meaningful time and in a
meaningful manner. City of Los Angeles v. David, 538 U.S. 715, 717 (2003) (per curiam)
(citing Matthews, 424 U.S. at 333).
Applying the Matthews factors to this case, the two-step grievance process is
sufficient to satisfy due process requirements. First, the private interest at stake is the
property right of an inmate.

Prison officials may “obviously impose reasonable

restrictions on the type and amount of personal property inmates are allowed to possess in
prison.” McCrae, 720 F.3d at 869. Plaintiff’s property interest is further weakened to the
extent his publications create a security hazard and violate BP 03.91. See Allen v.
Thomas, No. Civ. A. H-02-3132, 2005 WL 2076033, at *7 (S.D. Tex. Aug. 26, 2005).
Therefore, the Court must remain cognizant that an inmate’s constitutional rights “must
be exercised with due regard for the ‘inordinately difficult undertaking’ that is modern
prison administration.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner
v. Safley, 482 U.S. 78, 85 (1987)). Thus, the private right at stake here is one that may be
curtailed by prison officials in the interest of prison security. Id. at 408.
The second factor the Court must consider is whether TDCJ’s procedures create a
risk of erroneous deprivation and the probable value of additional procedural safeguards.
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Matthews, 424 U.S. at 335. Plaintiff does not establish that there is a serious risk of
erroneous deprivation, nor does he propose additional safeguards. Rather, Plaintiff states
that he is entitled to some sort of hearing, but Plaintiff does not articulate why he believes
the two-step grievance procedure to be insufficient.
The third factor the Court must consider is the government’s interest, including the
administrative burdens that additional procedural requirements would entail. Here, the
state’s interest is in maintaining safety and order in its prisons.

The courts have

recognized this is an “inordinately difficult undertaking that requires expertise, planning,
and the commitment of resources, all of which are peculiarly within the province of the
executive and legislative branches.” Turner, 482 U.S. at 85. Therefore, federal courts
should accord a certain level of deference to prison authorities with respect to such
matters. Additional procedural protections, such as requiring an oral evidentiary hearing
every time an inmate challenges a DRC/MSCP determination, would put an additional
strain on prison resources without much, if any, added benefits. Accordingly, Plaintiff’s
second objection is OVERRULED.
Plaintiff’s third objection is that the TDCJ’s administrative appeal process violates
constitutional protections which require an independent appeal. D.E. 167, pp. 15-16.
Plaintiff argues that because one of the Defendants, Jennifer Smith, is a supervisor on the
MSCP, a member of the DRC, and a respondent to mailroom step 2 grievances, he has
been denied any meaningful independent review. See Krug v. Lutz, 329 F.3d 692, 698
(9th Cir. 2003) (“[T]he right to appeal the exclusion of incoming publications to a prison
official other than the one who made the initial exclusion decision is [necessary].”).
6

Ms. Smith does not make initial rejections of publications. D.E. 152-4, p. 25.
Initial determinations are made at the mailroom level at the different TDCJ facilities. Id.
The MSCP/DRC, and therefore Ms. Smith, does not become involved until an inmate
challenges a mailroom rejection.

Plaintiff has not articulated how Ms. Smith’s

involvement in the different review committees is inappropriate. Furthermore, Plaintiff
has not stated that Ms. Smith had an impermissible interest in rejecting his publications.
Last, as noted by the Magistrate Judge, TDCJ places an emphasis on uniformity in the
interpretation and application of the rules. D.E. 140-8, p. 3 (“the MSCP serves to bring
uniformity to the decisions of the various units.”). Thus, the Magistrate Judge concluded,
“[c]oncerns for uniformity do not mandate independent review and, in some cases, may
Accordingly, Plaintiff’s third objection is

counsel against complete independence.”
OVERRULED.

Plaintiff’s fourth objection is that TDCJ does not allow prisoners to view the
rejected materials, and thus prisoners cannot effectively appeal mailroom rejections.
D.E. 167, pp. 5-6. The Magistrate Judge correctly noted that there is no authority that
would require TDCJ to permit prisoners the opportunity to view rejected materials, and
that doing so could have adverse consequences, defeating the purpose of the screening
procedures. See Rodriguez v. Bell, 2:14-cv-447, 2015 WL 3756509, at *4 (S.D. Tex. Jun.
16, 2015). BP 03.91 requires prison officials to give prisoners “a sufficiently detailed
description of the rejected publication to permit effective use of the appeal procedures.”
140-8, p. 12.

Plaintiff has not articulated how this procedure precludes him from

effectively appealing mailroom rejections. Plaintiff’s fourth objection is OVERRULED.
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Fifth, Plaintiff objects to the Magistrate Judge’s characterization of the rejected
issues of Shotgun News.

The Magistrate Judge stated that the rejected materials

contained “a discussion of assembly and/or disassembly of certain weapons.” Plaintiff
argues that none of the publications that were rejected contained discussions. Rather,
they simply contained diagrams of components and parts with no discussion on how
those parts go together.
This dispute over whether such illustrations can be described as discussions is
inconsequential. BP 03.91 prohibits materials that “contain information regarding the
manufacture of . . . weapons.” D.E. 140-8, p. 12. As noted by the Magistrate Judge and
Defendants’ expert witness, such diagrams can be used by inmates to fabricate weapons
or nonfunctioning replicas of weapons that would pose a serious threat at TDCJ facilities
because most of its correctional officers are unarmed. D.E. 140-10. Plaintiff complains
of a distinction that is not significant. Plaintiff’s fifth objection is OVERRULED.
Plaintiff’s sixth objection is to the Magistrate Judge’s reliance on Defendants’
expert witness. Plaintiff argues that Defendants’ expert, Jeremy Larue, is not qualified to
give his opinion because he is not an expert in weapons manufacturing. Plaintiff argues
that, unlike Plaintiff and three other inmates that he designated as experts, Mr. Larue has
no experience in casting, machining, welding, weapons manufacturing, or gunsmithing.
However, Mr. Larue’s testimony concerns none of those subjects. D.E. 140-10. Rather,
Mr. Larue’s testimony is about prison security and the risks posed by firearms, a topic in
which he is well versed due to his role as security operations warehouse manager and
chief armorer for TDCJ. His job duties include apprising himself of incidents in which
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inmates have gained access to firearms and firearm-related contraband. Defendants have
shown that Mr. Larue qualifies as an expert by knowledge and experience and that his
testimony is based on sufficient facts and data. Fed. R. Evid. 702. Plaintiff’s sixth
objection is OVERRULED.
Plaintiff’s seventh objection is that the Magistrate Judge erroneously concluded
that BP 03.91 is constitutional. Plaintiff launches a facial attack on BP 03.91 arguing that
it is unconstitutionally vague and overbroad. The Magistrate Judge correctly concluded
that BP 03.91 is reasonably related to a legitimate penological objective and facially
valid. See Thornburgh, 490 U.S. at 416. The regulation in Thornburgh was broader than
BP 03.91, yet was found constitutional.
The regulation under review in Thornburgh gave a prison warden discretion to
reject any publication he determined “detrimental to the security, good order, or
discipline of the institution or if it might facilitate criminal activity.” Id. at 403 n. 1. The
Supreme Court concluded that “[w]here the regulations at issue concern the entry of
materials into the prison . . . a regulation which gives prison authorities broad discretion
is appropriate.” Id. at 416. In other words, the Supreme Court held that the regulation’s
wide breadth was itself reasonably related to a legitimate penological interest. Thus,
Plaintiff’s argument, that BP 03.91 is unconstitutional because it is subject to multiple
interpretations, has no merit. Plaintiff’s seventh objection is OVERRULED.
Plaintiff’s eighth objection is that the Magistrate Judge erroneously concluded that
TDCJ’s “all or nothing rule,” in which publications are rejected in their entirety, is
constitutional. Plaintiff argues that TDCJ should instead institute a “clip rule,” in which
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the violative portions of a publication are removed. D.E. 167, pp. 6, 13-15. Plaintiff
argues that a clip rule is a reasonable alternative to TDCJ’s current practice. “[I]f an
inmate claimant can point to an alternative that fully accommodates the prisoner’s rights
at de minimis cost to valid penological interests, a court may consider that as evidence
that the regulation does not satisfy the reasonable relationship standard.”

Turner, 482

U.S. at 91.
The Magistrate Judge observed that the Supreme Court rejected Plaintiff’s
proposed clip rule in Thornburgh. In Thornburgh, the Supreme Court considered a
similar all or nothing rule. Thornburgh, 490 U.S. at 418. The district court, based on
trial testimony, had found that prison officials reasonably feared that a clip rule would
create more discontent. Id. The Supreme Court affirmed, stating, “when prison officials
are able to demonstrate that they have rejected a less restrictive alternative because of
reasonably founded fears that it will lead to greater harm, they succeed in demonstrating
that the alternative they in fact selected was not an ‘exaggerated response’ under Turner.”
Id. at 419.
Plaintiff argues that the finding in Thornburgh is not applicable here because that
finding was premised on a belief that partially destroying inmates’ property would lead to
more discontent among the prisoners. To distinguish Thornburgh, Plaintiff has provided
the declarations of 188 inmates stating that they would not object to, and would prefer,
Plaintiff’s proposed clip rule. D.E. 152-9, 10, 11, & 12. However, Thornburgh also
stated that the administrative inconvenience of such a rule was a factor that warranted
consideration. Thornburgh, 490 U.S. at 419.
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Plaintiff further argues that the regulation at issue in Thornburgh prohibited the
prison from establishing a database of rejected publications. Id. at 405. TDCJ, on the
other hand, keeps a database of rejected publications which would make the review
process less burdensome. However, the database evidence did not factor into the Court’s
holding in Thornburgh.
Plaintiff has provided a thorough cost benefit analysis to support his argument that
instituting a clip rule is actually less burdensome than rejecting publications in toto. D.E.
152-4, pp. 28-32; D.E. 152-5, p. 2. Plaintiff argues that the current practice requires four
levels of administrative review, resulting in more paperwork and logistical hurdles,
whereas Plaintiff’s proposal can be accomplished with a quick snip of the scissors.
However, currently, once a mailroom employee finds a violation in a publication, the
whole publication is rejected. The mailroom employee does not review the remaining
content and can move on to the next piece of mail. Under Plaintiff’s proposed rule,
mailroom employees would have to comb through the entire publication and remove all
objectionable content.

Plaintiff’s proposal is obviously more burdensome than the

current practice. Plaintiff’s eighth objection is OVERRULED.
Plaintiff’s ninth objection is that the Magistrate Judge narrowed the scope of her
analysis to Plaintiff’s claims premised on the seizure of his maps and the rejection of
Shotgun News.

Defendants presented evidence that, at the time Plaintiff filed his

Amended Complaint, Plaintiff had exhausted administrative remedies with respect to the
rejection of only one publication, Shotgun News. D.E. 140-2, 3, 4, 5, 6, & 7. Plaintiff

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argues that he properly exhausted the rejection of 13 other publications or
correspondences that the Magistrate Judge did not consider.
The first publication that Plaintiff complains of is a book titled How to Make
Marshmallows.

Plaintiff offers no evidence that this book was rejected or that he

completed the two-step grievance procedure. Furthermore, Plaintiff states that the DRC
overturned the mailroom’s rejection, and he eventually received the publication so there
is no claim here. D.E. 167, p. 13.
The second publication is How to Grow Your Own Tobacco. The rejection of this
book was overturned after Plaintiff filed a step 2 grievance, and Plaintiff received the
book. D.E. 152-8, p. 24. Furthermore, this incident occurred in September of 2014—
after Plaintiff filed his amended complaint (D.E. 97) in July of 2014. Thus this claim is
not part of this lawsuit.
The third publication is Small Grain Raising: Corn, Wheat, Oats, and Rice.
Plaintiff never ordered this publication. Rather, he inquired as to whether this book
would be approved if he did order it. D.E. 152-2, pp. 2-3. Plaintiff was informed that the
book was not in the system, and that if Plaintiff ordered the book, it would have to be
reviewed, subject to possible rejection. Plaintiff has not stated a claim in this regard.
Fourth, Plaintiff complains that mailroom staff did not allow him to send a sealed
letter to an out of state attorney.6 Plaintiff’s grievance was resolved in his favor so there
is no claim here. D.E. 152-4, p. 19.

6

Generally, inmates must submit unsealed mailed so that mailroom staff can inspect it before it is sent. Legal
correspondence is exempt from this requirement. BP 03.91 (D.E. 140-8, p. 10).

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The fifth publication is Taste of Home Cookbook.

Plaintiff complains that

mailroom staff ripped off this book’s binding before delivering it to him. Plaintiff has not
offered any evidence to show that he exhausted the administrative remedies. In addition,
this incident happened in October of 2015, and thus is not part of this lawsuit. D.E. 153,
p. 23.
Plaintiff’s sixth complaint is that mailroom staff does not permit him to send
sealed mail to the veterans administration. This claim was grieved at both administrative
levels, but in 2015. Thus, this claim is not part of this lawsuit. D.E. 152-6, pp. 2-5.
The seventh complaint is the rejection of Petroleum Fuels Handbook.

The

rejection was overturned and the book was delivered to Plaintiff so there is no claim here.
D.E. 152-2, p. 6.
Plaintiff’s eighth complaint is that the Magistrate Judge did not address two issues
of Fur-Fish-Game Magazine that went missing in 2013. The only evidence Plaintiff
offers in support of this claim is an inquiry he made to mailroom staff regarding the
magazines’ whereabouts.

He has offered no evidence to show that he exhausted

administrative remedies with respect to this claim. 152-2, p. 10.
Plaintiff’s ninth complaint is that the Magistrate Judge did not address the
rejection of the book What’s in Your Bug Out Bag. Plaintiff has offered the step 1 and
step 2 grievances that were resolved against him. D.E. 153, p. 12. But this rejection
occurred in 2015, and thus is not part of this lawsuit. Id.
Plaintiff’s tenth complaint is the rejection of The Trappers Bible. Plaintiff has not
offered evidence to show that a final determination has been made with respect to this
13

publication. Plaintiff has offered a step 2 grievance which was resolved by ordering
mailroom staff to send the book to the DRC for reconsideration. D.E. 153, p. 10. In
addition, this dispute occurred in 2015, and is thus not part of this lawsuit. Id.
Plaintiff’s eleventh and twelfth complaints are that the Magistrate Judge did not
address the rejection of two issues of Gun Digest or a copy of U.S. Army’s Special Forces
Handbook.

Plaintiff offers no evidence that these claims were exhausted.

In his

objections, Plaintiff cites to grievance #2012189776 (D.E 152-4, pp. 2-7). However, the
grievance that Plaintiff cites was for the denial of Shotgun News.
Plaintiff’s thirteenth complaint is that the Magistrate Judge did not address the
rejection of U.S. Army’s Land Navigation and Recognition Guide.

This rejection

occurred in 2015, and is not part of this lawsuit. D.E. 153, p. 12.
As described above, Plaintiff’s complaints regarding the additional publications or
correspondences fail for at least one of several reasons: (1) they were not exhausted; (2)
the administrative review resulted in a favorable determination for Plaintiff; or (3) the
relevant conduct occurred after Plaintiff filed his amended complaint and thus is not a
subject of this lawsuit. Plaintiff’s ninth objection is OVERRULED.
Plaintiff’s tenth objection is to the Magistrate Judge’s conclusion that the
individual defendants are entitled to qualified immunity. The Magistrate Judge correctly
concluded that Plaintiff has not shown that Defendants’ conduct violated a constitutional
right. Plaintiff’s tenth objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
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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 Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendants’ Motion for Summary
Judgment (D.E. 140) is GRANTED and this action is DISMISSED WITH
PREJUDICE.
ORDERED this 18th day of October, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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