Case 4:15-cv-00644-ALM-KPJ Document 53 Filed 03/16/17 Page 1 of 11 PageID #: 363
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
` SHERMAN DIVISION
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`LAMAR SIMPSON, #1906542
`Plaintiff
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`v.
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`
`
`DIRECTOR, TDCJ-CID, et al.,
` Defendants
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`
`
` §
` §
` §
` § CIVIL ACTION NO. 4:15cv644
` §
` §
` §
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`
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`MEMORANDUM OPINION AND ORDER
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`Pro se Plaintiff Lamar Simpson filed a civil rights complaint pursuant to 42 U.S.C. §1983.
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`He claims Defendants violated his constitutional rights while he was incarcerated at the Buster Cole
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`Unit of the Texas Department of Criminal Justice. Plaintiff brings suit against Defendants in their
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`individual capacities and seeks injunctive relief and punitive damages in the amount of five million
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`dollars ($5,000,000). This Memorandum Opinion and Order concerns Defendants Patton, Pinkston,
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`and Welch’s motion for summary judgment (Dkt. #35), as well as Plaintiff’s response to such motion
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`(Dkt. #39).
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`BACKGROUND
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`Plaintiff asserts Defendants Sherry Patton and Kathryn Pinkston violated his First
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`Amendment right to freely exercise his Jewish faith by confiscating material he used for religious
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`study. He also claims that his due process rights under the Fourteenth Amendment were violated by
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`Defendant Jerry Welch, Jr., the hearing officer for the disciplinary case in which Plaintiff was found
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`guilty of unauthorized storage of property. Defendants Brad Livingston and Donna Kazmierczak
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`have been dismissed from the case (Dkt. #48). The remaining Defendants are Officers Patton,
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`Pinkston, and Welch.
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`In Plaintiff’s complaint, he alleges that a dorm search was conducted, and Officer Patton
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`“confiscated religious material claiming it [was] improperly stored [and took] it [by] force.” Plaintiff
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`alleges Officer Pinkston aided “in the confiscation instead of acting where required by employee’s
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`1
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`position.” Prison property records show that four (4) books, nine (9) letters, twenty (20)
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`miscellaneous papers, one (1) pen, four (4) cards, and two (2) Bible study books were confiscated.
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`Plaintiff was then charged in a disciplinary proceeding for the failure to properly store his property.
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`Plaintiff alleges Officer Welch “found me guilty without allowing me to challenge disciplinary
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`sanction[s] (denied witnesses).”
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`DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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`The three remaining Defendants assert they are entitled to summary judgment. Attached to
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`their motion are affidavits from each Defendant as well as grievance, classification, disciplinary,
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`property, and Chaplain’s Office records in support. Defendants assert they are entitled to judgment
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`as a matter of law because:
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`1.
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`2.
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`3.
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`4.
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`5.
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`Plaintiff fails to make a prima facie First Amendment free exercise claim;
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`Plaintiff fails to make a prima facie Fourteenth Amendment claim;
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`Defendants are entitled to qualified immunity;
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`Section 1983 does not create a cause of action based on supervisory liability; and
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`Defendants are entitled to Eleventh Amendment immunity.
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`PLAINTIFF’S RESPONSE TO MOTION FOR SUMMARY JUDGMENT
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`Plaintiff filed a response to the Defendants’ motion for summary judgment. In it, he
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`comments on several pages from the TDCJ records, as well as from affidavits submitted by
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`Defendants. Specifically, Plaintiff accuses each of the officers of being untruthful, and complains
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`they did not follow TDCJ policies.
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`Plaintiff also attached his own affidavit. In it, he reiterates his claim that, while studying
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`religious materials in his cell, officers entered and ordered the offenders to go into the dayroom.
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`Plaintiff states, that after leaving his books and other personal belongings on his bunk, he heard
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`Officer Patton say that my property “looks to be stored improperly.” Plaintiff reiterates that he
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`believes this is a violation of his First Amendment right to exercise his Jewish religion. He also
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`attaches several other exhibits including an Inter-Office Communications sheet from one of
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`2
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`Plaintiff’s cellmates, Victor Moran. In it, Mr. Moran states that officers arrived to do a search and
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`he, as well as Plaintiff, were on their bunks studying. Mr. Moran states that one offender made a
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`verbal statement that caused the dorm to have all property not stored away to be confiscated.
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`Additionally, Plaintiff included his own Inter-Office Communications sheet prepared after the
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`discipline action for improper storage had been settled. In it, he states that, on the day in question,
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`he was looking over legal papers on his bunk, but then began studying the Book of Yahweh Holy
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`Scriptures and the King James Bible. He says he also had a concordance, a Bible dictionary, a regular
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`dictionary, as well as other papers. All of his materials were confiscated.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS
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`The following facts are not in dispute:
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`1.
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`2.
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`3.
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`4.
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`5.
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`Plaintiff was an inmate in custody of TDCJ at all times relevant to his claims;
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`Defendants were employed as Corrections Officers for TDCJ at all times relevant to
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`Plaintiff’s claims;
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`On May 25, 2015, Defendants Patton and Pinkston were in Plaintiff’s housing unit
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`and conducted a search resulting in the confiscation of Plaintiff’s religious property;
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`On May 25, 2015, Plaintiff was informed that his property was confiscated because
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`it was improperly stored; and
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`Plaintiff was charged and found guilty of unauthorized storage of personal property.
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`STANDARD OF REVIEW- MOTION FOR SUMMARY JUDGMENT
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`On motions for summary judgment, the court must examine the evidence and inferences
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`drawn therefrom in the light most favorable to the non-moving party. Sec. and Exch. Comm’n v.
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`Recile, 10 F.3d 1093, 1097 (5th Cir. 1993); Gen. Elec. Capital Corp. v. Se. Health Care, Inc., 950
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`F.2d 944, 948 (5th Cir. 1992); Fed. R. Civ. P. 56. After such examination, summary judgment is
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`proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
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`the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled
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`to judgment as a matter of law. Id.
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`3
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`To avoid summary judgment, the non-moving party must adduce admissible evidence that
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`creates a fact issue concerning existence of every essential component of that party's case –
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`unsubstantiated assertions of actual dispute will not suffice. Thomas v. Price, 975 F.2d 231, 235 (5th
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`Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Fifth Circuit stated that,
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`once the moving party has met its burden, the non-movant must direct the court's attention to
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`admissible evidence in the record that demonstrates it can satisfy a fair-minded jury that it is entitled
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`to a verdict in its favor. ContiCommodity Serv., Inc. v. Ragan, 63 F.3d 438, 441 (5th Cir. 1995).
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`Once the defendant has shifted the burden to the plaintiff by properly supporting his motion for
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`summary judgment with competent evidence indicating an absence of genuine issues of material fact,
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`the plaintiff cannot meet his burden by some metaphysical doubt as to the material facts, conclusory
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`allegations, unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp.,
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`37 F.3d 1069, 1075 (5th Cir. 1994); Michaels v. Avitech Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).
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`A properly-supported motion for summary judgment should be granted unless the opposing party
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`produces sufficient evidence to show that a genuine factual issue exists. Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 249 (1986). Summary judgment is mandatory when a party fails to establish the
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`existence of an essential element of his case on which that party will bear the burden of proof at trial.
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`Celotex, 477 U.S. at 323.
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`FIRST AMENDMENT CLAIM
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`Plaintiff alleges Officers Patton and Pinkston violated his First Amendment right to freely
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`exercise his Jewish faith by confiscating material he used for religious study during a search of his
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`housing unit. Prisoners do not lose all rights to free exercise of religion upon incarceration. Cruz
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`v. Beto, 405 U.S. 319, 322 (1972) (per curiam). Nonetheless, a prisoner’s free exercise right “is
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`necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate
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`correctional goals or to maintain prison security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348
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`(1987). To establish a free exercise violation, an inmate must demonstrate that prison officials
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`prevented him from engaging in religious conduct without any justification related to legitimate
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`penological concerns. Turner v. Safely, 482 U.S. 78, 89 (1987). The Fifth Circuit holds that proper
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`storage of personal property - religious or not - directly and reasonably relates to the legitimate
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`penological goal of maintaining prison security. Id. at 89. Courts reviewing conduct alleged to
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`impinge on religious practice ordinarily give wide deference to the judgment of prison officials when
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`their conduct concerns prison security. Id. at 89-90 (“judgment regarding prison security are
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`peculiarly within the province and professional expertise of corrections officials”).
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`Plaintiff’s claim is that his free exercise rights were violated when his religious property was
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`confiscated. He does not challenge a TDCJ policy or bring other claims concerning his right to
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`exercise his religion. Plaintiff cannot prevail on this claim since restrictions on an inmate’s storage
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`space for legal and religious property are reasonably related to legitimate penological interests.
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`Carrio v. Texas Dept’ of Criminal Justice, Institutional Div., 196 F. App’x 266 (5th Cir. 2006).
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`Plaintiff acknowledges being informed that his property was confiscated because it was improperly
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`stored. Plaintiff’s grievance records show that his property was confiscated for being improperly
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`stored “on his bunk and under his mattress.” The affidavit from Officer Patton notes that Plaintiff’s
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`personal items were found under his mattress and also under his storage locker. Finally, Plaintiff’s
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`classification records show that he was charged with, and found guilty of, unauthorized storage of
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`property.
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`Plaintiff claims that, right after the search, Officer Pinkston told Plaintiff he would receive
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`his property back. However, Plaintiff’s Step 1 Grievance #2015150573 shows that Plaintiff was
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`formally advised that his property would be disposed of in accordance with TDCJ policy. But
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`property records show that Plaintiff was given the opportunity to make a disposition of his
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`confiscated property, but refused to do so. Later-in-time property records show that, eventually,
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`Plaintiff obviously changed his mind, and made arrangements to have his property mailed to Rose
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`L. Simpson. Thus, to the extent Plaintiff seeks injunctive relief for return of his property, that issue
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`is now moot.
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`In sum, even if Plaintiff disagrees with Officers Patton and Pinkston’s justification for
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`confiscating his property, he cannot show they had no justification or that their justification was
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`unrelated to legitimate penological concerns. Because Plaintiff makes no claim that he was otherwise
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`denied the right to freely exercise his religion, this claim must be dismissed.
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`FOURTEENTH AMENDMENT CLAIM
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`Plaintiff next contends that his due process rights under the Fourteenth Amendment were
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`violated by Defendant Welsh, the hearing officer for the disciplinary case in which Plaintiff was
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`found guilty of unauthorized storage of property. Plaintiff claims that Officer Welch did not allow
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`him to challenge his disciplinary charge by calling witnesses. However, Plaintiff’s punishment was
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`only the loss of recreation and commissary privileges; thus, he has not shown a protectable liberty
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`interest sufficient to sustain a Fourteenth Amendment claim.
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`The Supreme Court placed severe limitations on challenges to disciplinary cases in Sandin
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`v. Conner, 515 U.S. 472 (1995). The Court concluded the federal judiciary had gone too far in
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`extending due process rights as first articulated in Wolff v. McDonnell. It retreated from its earlier
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`conclusion that due process rights must be accorded to inmates before placing them in solitary
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`confinement. Id. at 485. It referred to its discussion in Wolff regarding solitary confinement as
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`“dicta.” Id. The Supreme Court went on to hold that “Conner's discipline in segregated confinement
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`did not present the type of atypical, significant deprivation in which a state might conceivably create
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`a liberty interest.” Id. at 486. The Court concluded that Conner did not have a “protected liberty
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`interest that would entitle him to the procedural protections set forth in Wolff. The regime to which
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`he was subjected as a result of the misconduct hearing was within the range of confinement to be
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`normally expected for one serving an indeterminate term of 30 years to life.” Id. at 487. Absent
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`atypical punishment, a prisoner does not have a basis for a federal lawsuit concerning a disciplinary
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`action. Id.
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`The Fifth Circuit has applied Sandin to a number of situations. Punishment consisting of
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`placement in administrative segregation or the loss of the opportunity to earn good time is not
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`enough to trigger the protection of the Constitution. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995).
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`The loss of the opportunity to earn good time will not trigger the protection of the Constitution even
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`when an inmate is eligible for mandatory supervision. Malchi v. Thaler, 211 F.3d 953 (5th Cir.
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`2000). The imposition of commissary and cell restrictions likewise will not trigger the protection
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`of the Constitution. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The loss of good time
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`will not support relief to the extent that it adversely affects parole eligibility. Sandin, 515 U.S. at
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`487. However, the loss of good time will trigger the protection of the Constitution if, and only if,
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`a prisoner is eligible for release on mandatory supervision. Madison, 104 F.3d at 769.
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`In the present case, to the extent Petitioner’s punishment was the loss of recreation and
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`commissary privileges, his punishment was not significant enough to trigger the protection of the
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`Constitution. Id at 768. Additionally, Officer Welch’s affidavit as well as several of Plaintiff’s
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`prison records show that Plaintiff became uncooperative and disruptive during his hearing. After
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`being warned that Plaintiff would be ordered to leave the hearing should he continue, Officer Welch
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`notes that Plaintiff’s uncooperative and disruptive behavior continued, and Plaintiff was ordered to
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`leave. Nonetheless, due to the absence of a protected liberty interest, Petitioner may not obtain
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`federal relief on this issue, regardless of what may or may not have happened at the disciplinary
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`hearing.
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`CONFISCATION OF PROPERTY
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`Plaintiff does not assert that his due process rights were violated by the confiscation of his
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`property, only that his free exercise rights were violated. However, because the record shows that
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`more than just Plaintiff’s religious property was confiscated, the Court will review this matter.
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`A state actor's negligent or intentional deprivation of a plaintiff's property does not result in
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`a violation of procedural due process rights if there exists an adequate state post-deprivation remedy.
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`Hudson v. Palmer, 468 U.S. 517, 533 (1984) (unauthorized intentional conduct); Parratt v. Taylor,
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`451 U.S. 527, 541-44 (1981) (negligent conduct); Simmons v. Poppell, 837 F.2d 1243, 1244 (5th
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`Cir. 1988); Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984). The Texas court system
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`provides an adequate post-deprivation remedy for the taking of any property. See Holloway v.
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`Walker, 784 F.2d 1287, 1292 (5th Cir 1986). Moreover, the Texas state administrative and judicial
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`systems provide an adequate state post-deprivation remedy for property taken from prisoners. See
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`Tex. Gov. Code § 501.007. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983), cert. denied, 464
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`U.S. 897 (1983); Loftin v. Thomas, 681 F.2d 364, 365 (5th Cir. 1982). Because Texas has adequate
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`post-deprivation remedies, a prisoner does not have a basis for a § 1983 claim for the confiscation
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`of his property. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). However, the confiscation of
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`a prisoner’s property under authority of a prison administrative directive is not a random,
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`unauthorized act, and thus the existence of an adequate state post-deprivation remedy does not
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`preclude a § 1983 claim for violation of due process. Allen v. Thomas, 388 F.3d 147, 149 (5th Cir.
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`2004).
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`In the instant case, Plaintiff’s personal property was confiscated as improperly stored by
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`TDCJ prison officials. Because Texas law provides a meaningful and adequate post-deprivation
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`relief for such a claim, Plaintiff does not have a claim. Although Plaintiff disagrees with the manner
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`of the property search, he simply does not have a basis for a § 1983 claim for the confiscation of
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`property; thus, any related claim must be dismissed.
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`QUALIFIED IMMUNITY
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`All Defendants allege that they are entitled to qualified immunity from Plaintiff’s claims.
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`“Qualified immunity protects public officials from suit unless their conduct violates a clearly
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`established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). It
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`gives government officials breathing room to make reasonable, but mistaken judgments, and protects
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`all but the plainly incompetent, or those who knowingly violate the law. Thompson v. Mercer, 762
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`F.3d 433, 436-37 (5th Cir. 2014) (citations omitted). To overcome the qualified immunity defense,
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`a plaintiff must allege a violation of a constitutional right and show that the right was clearly
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`established in the specific context of the case. See Pearson v. Callahan, 555 U.S. 223, 235-36
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`(2009).
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`A law enforcement officer is entitled to qualified immunity if he can establish his conduct
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`was lawful in light of clearly-established law and the information he possessed. A court must ask
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`whether a reasonable officer could have believed that his actions were legal in light of clearly-
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`established law and the information possessed by him at the time and whether a reasonable officer
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`identically situated could have believed that the actions used were lawful. Saucier v. Katz, 533 U.S.
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`194, 210 (2001). To overcome the qualified immunity defense, the plaintiff must allege a violation
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`of a constitutional right and show that the right was clearly established in the specific context of the
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`case. See Pearson v. Callahan, 555 U.S. 223, 235-36 (2009). Since both prongs must be satisfied,
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`the Supreme Court concluded that the sequence set forth in Saucier should no longer be regarded
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`as mandatory. Id. at 236. If the court finds that an official’s conduct does not violate a clearly-
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`established constitutional right, then qualified immunity applies, and no further analysis is required.
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`Id. at 232. If, however, the court finds that the plaintiff has alleged the violation of a clearly-
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`established constitutional right, the court must proceed in determining if the defendant’s action could
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`reasonably have been thought consistent with that right. Siegert v. Gilley, 500 U.S. 226, 230 (1991).
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`When determining whether the defendant acted reasonably, the court looks to whether the
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`defendant’s actions were objectively reasonable in relation to the law as it existed at the time the
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`conduct occurred and in light of the information the defendant possessed. Mouille v. City of Live
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`Oak, 977 F.2d 924, 928 (5th Cir. 1993). Regardless of an official’s mistaken assumptions or
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`subjective motivations, he is entitled to qualified immunity if his conduct is determined to have been
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`objectively reasonable. The Fifth Circuit stated:
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`[T]he court should ask whether the [defendants] acted reasonably under settled law
`in the circumstances, not whether another reasonable or more reasonable,
`interpretation of the events can be constructed . . . after the fact . . . . Even if law
`enforcement officials erred in [their conclusions], they would be entitled to qualified
`immunity if their decision was reasonable albeit mistaken. [Citations omitted.]
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`Lampkin v. City of Nacogdoches, 7 F.3d 430, 434-35 (5th Cir. 1993), cert. denied sub nom., Vanover
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`v. Lampkin, 114 S. Ct. 1400 (1994). Similarly, in Valencia v. Wiggins, the Supreme Court held, “It
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`is therefore irrelevant whether the defendants in this case acted with intent to injure as long as their
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`conduct was objectively reasonable.” 981 F.2d 1440, 1448 (5th Cir. 1993), cert. denied, 509 U.S.
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`905 (1993).
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`In this case, Plaintiff has not alleged facts to overcome Defendants’ entitlement to qualified
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`immunity. Plaintiff asserts a conspiracy among “intimate sexual partners,” referring to Officers
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`Patton and Pinkston, and alleges other coworkers covered up the violation of his rights. Unsupported,
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`inflammatory remarks cannot overcome Officers Patton and Pinkston’s entitlement to qualified
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`immunity. Likewise, as it concerns Officer Welch, Plaintiff fails to allege facts sufficient to
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`overcome his entitlement to qualified immunity. While Plaintiff disagrees with the result of his
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`disciplinary hearing, he fails to demonstrate how Officer Welch’s actions were unreasonable.
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`The competent summary judgment evidence establishes that, at the time of the incident in
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`question, Defendants were governmental officials performing discretionary acts in good faith, acting
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`under color of state law. They were acting in their official capacities as TDCJ correctional officers.
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`Their actions were reasonable, proper, and necessary to perform their duties as TDCJ correctional
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`officers. Consequently, Defendants are entitled to qualified immunity.
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`SUPERVISORY LIABILITY
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`Plaintiff claims that Officer Pinkston’s liability rests, in part, on her failure as Officer
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`Pattons’ supervising officer. However, Section 1983 does not create a cause of action based on
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`supervisory liability. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). The Supreme Court held
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`that the term, “supervisory liability,” in the context of a Section 1983 lawsuit is a “misnomer” since
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`“each Government official, his or her title notwithstanding, is only liable for his or her own
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`conduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). This issue must be dismissed.
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`ELEVENTH AMENDMENT IMMUNITY
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`To the extent Plaintiff brings claims against Defendants in their official capacity, the
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`Eleventh Amendment bars suit in federal court against a state, or its agencies or departments,
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`regardless of the relief requested. Pennhurst State Sch. & Hosp. v. Alderman, 465 U.S. 89, 100
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`(1984). Neither Congress nor the State of Texas has waived Eleventh Amendment immunity
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`regarding Section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989) (“Congress,
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`in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity.”). A suit
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`for damages against a state official in his official capacity is not a suit against that individual, but a
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`suit against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991).
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`In the present case, Plaintiff’s allegations concern matters within the scope of the
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`employment of Officers Patton, Pinkston and Welch as state employees. Consequently, to the extent
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`Plaintiff is suing them for money damages in their official capacity, the Eleventh Amendment bars
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`these claims.
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`CONCLUSION
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`A review of the competent summary judgment evidence in the light most favorable to the
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`non-movant shows that there are no disputed issues of material fact and that Defendants Patton,
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`Pinkston, and Welch are entitled to judgment as a matter of law. Plaintiff failed to direct the Court's
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`attention to admissible evidence in the record that demonstrates he can satisfy a fair-minded jury that
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`he is entitled to a verdict in its favor. Plaintiff also fails to meet his burden of overcoming qualified
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`immunity and Eleventh Amendment immunity. Accordingly, it is
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`ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #35) is GRANTED
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`and the claims against Defendants Patton, Pinkston, and Welch are DISMISSED with prejudice.
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`All motions by either party not previously ruled upon are DENIED.
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`11
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