Strong v. Lumpkin

1

TABARI S. STRONG, Plaintiff, v. BOBBY LUMPKIN, Defendant.

Civil Action No. 2:21-CV-00261

United States District Court, S.D. Texas, Corpus Christi Division

July 13, 2022

MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MITCHEL NEUROCK, UNITED STATES MAGISTRATE JUDGE

Plaintiff Tabari S. Strong, a Texas inmate proceeding pro se and in forma pauperis, has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is a Motion to Dismiss filed by Defendant Bobby Lumpkin, Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). (Doc No. 15.) For the reasons set forth below, the undersigned recommends that Defendant's motion be GRANTED in part and that Plaintiff's action be DISMISSED.

A. Jurisdiction.

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned magistrate judge for case management and making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

B. Background: Plaintiff, a Texas state prisoner, challenges a newly amended TDCJ policy.

Plaintiff is a prisoner in TDCJ-CID, currently housed at the McConnell Unit in Beeville, Texas, which lies within this district. The facts giving rise to Plaintiff's claims in this lawsuit occurred during his current assignment to the McConnell Unit.

In his complaint, Plaintiff sues Defendant in his official capacity. (Doc. No. 1, p. 6.)

Plaintiff challenges certain provisions of Texas Board of Criminal Justice Policy 03.91, Uniform Inmate Correspondence Rules (BP-03.91),^[1] an amended version of which (“Revision 5”) became effective on August 1, 2021. See id. BP-03.91, as amended, now prohibits inmates from receiving incoming correspondence that contains sexually explicit images. (Doc. No. 15-1, pp. 3, 5, 12, 14.) The policy defines “sexually explicit image” as

material in publications, photographs, drawings, or any type of image, which depicts sexual behavior, is intended to cause sexual excitement or arousal, or shows: frontal nudity of either gender, including the exposed female breast(s) with nipple(s) or areola(s); the genitalia, anus, or buttocks, or partially covered buttocks of either gender; the discharge of bodily fluids in the context of sexual activity; or sexual behavior from any vantage point. The chests of infants and pre-pubescent children are not considered breasts, unless further restricted by a treatment program policy.

Id. at 5. The policy provides that all incoming correspondence containing a sexually explicit image “shall be disapproved for ... receipt.” Id. at 12.

According to Plaintiff, any materials containing “sexually explicit images” found in an inmate's possession will be deemed to be contraband and subject to confiscation. (Doc. No. 1, pp. 7-9.) Plaintiff claims that this amended policy “will violate” his “rights of: illegal seizure; cruel and unusual punishment; by way of deliberate indifference and discrimination.” Id. at 6. Specifically, Plaintiff is concerned that application of BP-03.91 will result in confiscation of sexually explicit images that, apparently, are either currently in his possession or will arrive in the mail via existing subscription.^[2]

BP-03.91 does not contain any provision for confiscation of materials that are already in an inmate's possession. The parties, however, both appear to believe that the policy does prohibit both receipt and possession of such materials. See Doc. No. 1, p. 6 (Plaintiff alleges that, under BP-03.91, any inmate who possesses sexually explicit materials will have those materials confiscated and will receive a “disciplinary case” for possessing such items); Doc. No. 15, p. 2 (Defendant states that BP-03.91 “restricts TDCJ inmates' possession and receipt of sexually explicit materials”).^[3]

BP-03.91 sets forth procedures for reviewing incoming correspondence or publications in the mailroom and for inmates to appeal any decision denying incoming correspondence or publications. (Doc. No. 15-1, pp. 12, 16-17.) Specifically, “[a]ll publications are subject to inspection by the [Mail System Coordinators Panel (MSCP)] and by unit staff” with the MSCP having “the authority to accept or reject a publication for content, subject to review by the [Director's Review Committee (DRC)].” Id. at 13. A publication may be rejected if it contains sexually explicit images. Id. at 14. Under the amended policy, however, “subject to review by the MSCP on a case-by-case basis, publications constituting educational, medical, scientific, or artistic materials, including anatomy medical reference books, general practitioner reference books or guides, National Geographic, or artistic reference material depicting historical, modern, or post-modern era art, may be permitted.” Id.

Plaintiff also asserts that amended BP-03.91 contradicts TDCJ Administrative Directive 03.72 (AD-03.72), Offender Property, which, according to Plaintiff,^[4] defines “Offender Property” as consisting of “authorized items that accompany an offender or received in accordance with or meeting the requirements of BP-03.91 (before it was revised) and items purchased from [the] commissary or approved vendor while in custody of TDCJ.” Doc. No. 1, p. 7 (emphasis deleted). Before August 1, 2021, Plaintiff states, he engaged in the following process under AD-03.72 in order to acquire items by mail: (1) Plaintiff submitted a written request to the mailroom seeking to make an “outside purchase;” (2) mailroom officials checked whether the vendor was on the approved mailing list; (3) mailroom officials scheduled Plaintiff through a “lay-in” pass^[5] to visit the mailroom with a completed outside-purchase slip; (4) Plaintiff used his thumbprint to sign the slip to ensure he had sufficient funds to make the purchase and the right to possess the purchased items; (5) the slip was mailed to TDCJ headquarters for inmate trust fund personnel to ensure compliance with the previous steps and to mail the check to the approved vendor; and (6) when the purchased items were mailed to the unit, mailroom officials inspected the publications and approved them for Plaintiff. Id. at 8-9. According to Plaintiff, amended BP-03.91 “violates” this approval process. Id. at 9.

Plaintiff states that, utilizing the procedures in AD-03.72, he was able to purchase (for “a little more than $500”) publications containing over 800 pictures, that he used his inmate trust fund account to legally purchase these items, and that he now possesses those items. (Doc. No. 1, p. 7.) Additionally, Plaintiff states that in July 2021, under the previous version of BP-03.91, he permissibly purchased 180 more photos costing $100. Id.

Plaintiff asserts that the amended policy does not support TDCJ's security interests in minimizing rapes, masturbation, and possession of drugs or cell phones. (Doc. No. 1, pp. 9-10.) Plaintiff maintains that he has no personal issues involving sexual deviancy, drug use, or possession of contraband such as cell phones. Id. Plaintiff asserts, therefore, that he is the victim of discrimination in that he will suffer harm by those inmates who choose to rape, masturbate, use drugs, and possess cell phones. He also asserts that TDCJ consistently “attacks” males who refuse to be homosexual; therefore, Plaintiff says, TDCJ is promoting homosexuality with their policies. Id. at 10-11. Rather than blaming images contained in drawings, publications, or photos for causing harm, Plaintiff declares that TDCJ is placing a burden on inmates not to be “human” and for desiring females to fulfill inmates' sexual needs. Id. at 11-12.

Plaintiff asserts that TDCJ will use its “entrapment policy” (amended BP-03.91), to seize his personal property that he purchased legally with his inmate trust fund account and approved by McConnell Unit's warden and mailroom staff. (Doc. No. 1, p. 12.) Plaintiff filed a Step 1 grievance, dated August 1, 2021, complaining that the personal property he purchased legally will be confiscated pursuant to amended BP-03.91. Id. at 17-18. Plaintiff requested that he be allowed to keep his personal property, consisting of several hundred pictures purchased legally, without receiving any disciplinary punishment or harassment. Id. Plaintiff's Step 1 grievance was returned to him (or “screened”) on the basis that the issue presented was not grievable. Id. at 18, 20. Plaintiff's Step 2 grievance, filed on August 12, 2021, was apparently not considered at all by prison officials. Id. at 19-20.

Plaintiff does not allege that any materials have actually been confiscated, and in fact acknowledges that nothing has been confiscated. He states, in his April 22, 2022 response to Defendant's dismissal motion: “Although, as of yet, Plaintiff has not had items confiscated, said items are considered ‘contraband' & Plaintiff seeks to prevent any confiscation and/or disciplinaries in the future.” (Doc. No. 18, p. 1.)

Plaintiff seeks several forms of relief, which he dubs the “least restrictive means:”^[6] (1) being permitted to continue to possess any and all photos, pictures, and publications that Plaintiff can prove were purchased from his inmate trust account; (2) being permitted to continue to possess any newspapers or magazines that Plaintiff has received via subscription, with such subscriptions to be terminated upon their expiration; (3) reimbursement for “any and all monies that Plaintiff has spent and can be verified,” including for photo albums and the prospective cost of mailing forbidden items out of the prison to his family; (4) conjugal visits with his spouse at least once per month to meet Plaintiff's “natural sex need;” (5) court costs; (6) establishment of a disciplinary policy to require...