Lewis v. McConnell Unit

Filing 67

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 49 Memorandum and Recommendations; GRANTS 35 Defendant's Motion for Summary Judgment; DENIES as Moot 62 Plaintiff's Motion for Declaratory Judgment, and DISMISSES WITHOUT PREJUDICE this action. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAMON EARL LEWIS,
Plaintiff,
VS.
MCCONNELL UNIT, et al,
Defendants.

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March 01, 2018
David J. Bradley, Clerk

CIVIL NO. 2:16-CV-00124

ORDER
The Court is in receipt of Defendants Nancy Trevino (“Trevino”) and Jennifer
Smith’s (“Smith”) January 6, 2017, motion for summary judgment, Dkt. No. 35, the
February 28, 2017, Memorandum and Recommendation (“M&R”) of the Magistrate
Judge to whom this case was referred, Dkt. No. 49; Plaintiff’s October 19, 2017,
motion for declaratory judgment, Dkt. No. 62; and the November 11, 2017,
supplemental M&R, Dkt. No. 64. The Court GRANTS Defendants’ motion for
summary judgment. Dkt. No. 35.
On April 18, 2016, pro se and in forma pauperis Plaintiff—currently
incarcerated at the Texas Department of Criminal Justice (“TDCJ”) McConnell
Unit—commenced this action, seeking an injunction against Defendants so that he
may access medical research material. Dkt. No. 1. Specifically, Plaintiff seeks access
to these articles: (1) “Medical conditions with genital/anal findings that can be
confused with sexual abuse,” (2) “The pediatric hymen,” and (3) “Healing of hymenal
injuries in prepubertal and adolescent grils: descriptive study.” Id. at 2 (any
mistakes in original). On May 17, 2016, Plaintiff amended his complaint to
additionally seek nominal and punitive damages against Defendants. See Dkt. Nos.
7, 8.
On June 21, 2016, the Court ordered service on “(1) John and Jane Does who
are members of the Mailroom Correspondence review Panel at the McConnell Unit
in Beeville, Texas and (2) John and Jane Does who are members of the Director’s

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Review Committee who are located in Huntsville, Texas.” Dkt. No. 12 at 1. On
August 5, 2016, the Attorney General for Texas filed an amicus brief alleging that
“undersigned counsel identified the TDCJ mailroom employee who signed the
‘Contraband Denial Form’ as Nancy Trevino.” Dkt. No. 15 at 1–2. The amicus brief
further alleges that the “[u]ndersigned counsel also identified the TDCJ Directors
Review Committee employee who upheld Defendant Trevino’s denial as Jennifer
Smith.” Id. at 2.
In response to Trevino and Smith’s January 6, 2017, motion for summary
judgment, the Magistrate Judge issued an M&R on February 28, 2017,
recommending that the Court deny in part and grant in part Defendants’ motion.
Specifically, the M&R recommended that the Court (1) dismiss Plaintiff’s claims
against Defendants in their individual capacities for nominal and punitive
damages, and (2) retain Plaintiff’s claim for injunctive relief against Defendants in
their official capacities. The M&R states:
[A]n order for Defendants to remove the objectionable images from the
medical articles and allow Plaintiff to see and take notes on them while in the
law library would preserve Plaintiff’s right of access to the courts while not
creating disorder or unduly burdening TDCJ officials. Removal of images
prior to allowing Plaintiff to view them would also address Defendants’
assertion that his viewing of the images would do a disservice to the public
because Plaintiff is a convicted child sex offender.
Dkt. No. 49 at 21. The M&R recommends that “parties should proceed to trial on
the issue of whether legitimate, penological interests support the denial of the
articles to Plaintiff, or whether TDCJ should be ordered to provide the articles to
Plaintiff in their current form, or in a more restricted form.” Id. However, the M&R
concludes that if “Defendants provide a reasonable accommodation to Plaintiff as
outlined, then the request for injunctive relief will be moot.” Id. at 22 n.3.
On March 22, 2017, Plaintiff filed an objection to the M&R.1 Dkt. No. 54. On
April 12, 2017, Smith and Trevino filed a “Motion to Stay the Objection to the
Memorandum and Recommendation” pending Plaintiff’s “decision on Defendants’
The Court reviews objected-to portions of a Magistrate Judge’s proposed findings and
recommendations de novo. 28 U.S.C. § 636(b)(1).
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Amended Offer of Compromise to Plaintiff.” Dkt. No. 56. Defendants allege that
their offer of compromise would provide Plaintiff “access to the medical articles
made basis of this suit in a redacted form and through the McConnell Unit’s Law
Library” and “address[] articles requested in the future.” Dkt. No. 56 at 2. Attached
to the motion are two letters addressed to Plaintiff entitled “Amended Offer of
Compromise.” Dkt. No. 56-1 at 2–3. However, the letters are only partially visible.
Id. That is, they are covered in part by certified mail receipt slips and a return
envelope, respectively. Id. The part of the letters that are visible states,
“Undersigned counsel will redact all photographs from the two articles previously
denied to Plaintiff: 1) Medical Conditions with Genital/Anal Findings that can be
Confused with Sexual Abuse, and 2) Healing of Nonhymenal Genital Injuries in
Prepubertal and Adolescent Girls: A Descriptive Study.”
On April 14, 2017, the Court granted Smith and Trevino’s motion to stay.
Dkt. No. 57. On May 15, 2017, Trevino and Smith filed an objection to the M&R.
Dkt. No. 60. The objection: (1) argues that “TDCJ’s correspondence policy is valid
because it is reasonably related to the government’s interest in maintaining
security on the [McConnell] unit, and Defendant’s actions with respect to the policy
did not violate Lewis’s right to access the courts;” (2) “object[s] to the Magistrate
Judge’s finding that the alternative means of accessing the courts factor weights
against denying the articles; TDCJ has offered the articles in a redacted format
despite the potential effect of draining prison resources;” (3) “object[s] to the
magistrate’s finding that the effect of accommodation weigh in Lewis’s favor
because permitting him access to articles redacted by prison staff will likely lead to
a slippery slope that burdens TDCJ and will require the courts to arbitrate offender
correspondence disputes;” (4) “object[s] to the Magistrate Judge’s finding that
denying Lewis articles is not reasonably related to legitimate penological interests
or an accommodation comes at a de minimis cost to valid penological interests;” (5)
“object[s] to the Magistrate Judge’s finding that [Plaintiff’s] claims for injunctive
relief should proceed to trial because Defendants do not have the authority to make
an accommodation that contravenes TDCJ’s correspondence policy;” and (6)
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“[Plaintiff’s] claims are moot because TDCJ offered Lewis the articles with the
sexually explicit images redacted for access in the McConnell Unit law library.” Id.
On June 1, 2017, Plaintiff filed a “Rebuttal to Defendants Objection to
Memorandum and Recommendation.” Dkt. No. 61 (mistake in original). On October
19, 2017, Plaintiff filed a motion for declaratory judgment, Dkt. No. 62. On
November 7, 2017, the Plaintiff filed a response to the motion.
On November 17, 2017, the Magistrate Judge issued a “Supplemental
Memorandum and Recommendation to Grant Motion for Summary Judgment, Deny
Motion for Declaratory Judgment and Dismiss Case.” Dkt. No. 64. The M&R found
that “Defendants offered Plaintiff an opportunity to view the redacted articles in
order to prepare his petition challenging his conviction in the state courts, but he
did not accept the request.” Id. at 3. The M&R concluded, “Plaintiff cannot refuse to
review the articles and continue to claim that he has been denied access to the
courts. He cannot demonstrate any actual injury, thus failing to meet the prejudice
prong of an access to courts claim.” Id. The M&R recommended that the Court grant
Defendants’ motion for summary judgment, dismiss with prejudice this action, and
deny as moot Plaintiff’s motion for declaratory judgment. Id. On December 8, 2017,
Plaintiff filed an objection to the M&R, arguing in part that “Defendants’ offer of
compromise is incomplete and therefore rendered unacceptable.” Dkt. No. 66.
The Court SUSTAINS Plaintiff’s December 8, 2017, objection. Indeed,
Defendants did not proffer the alleged “offer of compromise” letter in full. See Dkt.
No. 56-1 at 2–3. Further, the part of the letter that is visible indicates that
Defendants offered Plaintiff a method to view only two of the three requested
articles. Id. Finally, Defendants did not provide any evidence, such as an affidavit,
that shows Plaintiff declined Defendants’ offer. Thus, the Court declines to adopt
the November 17, 2017, M&R.
Nonetheless, the Court GRANTS Defendants’ motion for summary judgment
following in part Defendants’ objection to the February 28, 2017, M&R, which
argues that:

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Ex Parte Young and its progeny allow an exception to Eleventh Amendment
immunity in claims against state officials for prospective injunctive relief.
Nevertheless, [Plaintiff] must first demonstrate that he meets the three
elements of standing: (1) injury in fact, (2) causation, and (3) redressability. .
. . Any inquiry into the applicability of the Young exception should gauge (1)
the ability of the official to enforce the statute at issue under his statutory or
constitutional power, and (2) the demonstrated willingness of the official to
enforce the statute. . . . Moreover, the Fifth Circuit pointed out that a state
official cannot be enjoined to act in any way that is beyond his authority to
act in the first place.
Dkt. No. 60 at 8. Indeed, in Okpalobi v. Foster, the Fifth Circuit held that plaintiffs
failed to satisfy the “redressability” requirement of the case or controversy analysis
because “these defendants have no powers to redress the injuries alleged . . . .” 244
F.3d 405, 416–17 (5th Cir. 2001).
Here, Defendants’ uncontroverted summary judgment evidence shows that
(1) Trevino lacks authority to permit Plaintiff access to correspondence containing
sexually explicit images, see Dkt. No. 60 at 8–9; Dkt. No. 35-1 at 44; and (2) Smith
has no authority to fulfill Plaintiff’s request because her authority is delegated to
her and she cannot alter images or allow possession of publications with sexually
explicit images, see Dkt. No. 60 at 9–10; Dkt. No. 35-1 at 34. Thus, Trevino and
Smith are not proper parties in this action. After independently reviewing the
record and applicable law, the Court adopts the February 28, 2017, M&R except
with respect to its findings and conclusions regarding Plaintiff’s claim for injunctive
relief against Defendants in their official capacities. Dkt. No. 49.
The Court OVERRULES the remaining objections as moot, frivolous,
conclusory, or general. See Battle v. United States Parole Comm’n, 834 F.2d 419 (5th
Cir. 1987) (determining that a district court need not consider frivolous, conclusive
or general objections).
The Court hereby:
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GRANTS Defendants’ motion for summary judgment, Dkt. No. 35;

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DENIES as moot Plaintiff’s motion for declaratory judgment, Dkt. No. 62;
and

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DISMISSES WITHOUT PREJUDICE this action.

The Court will order entry of final judgment separately.

SIGNED this 1st day of March, 2018.
___________________________________
Hilda Tagle
Senior United States District Judge

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