Clemons v. Lumpkin

IN THE UNITED STATES DISTRICT COURT July 27, 2023

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOHN CLEMONS, a/k/a JOHN HENRY §

CLEMMONS, III, TDCJ # 00719888, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 4:21-4052

§

BOBBY LUMPKIN, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff John Clemons, a/k/a John Henry Clemmons III, is an inmate in the Texas

Department of Criminal Justice–Correctional Institutions Division (TDCJ). Clemons

proceeds pro se and in forma pauperis in this civil rights case. The defendants have filed

a motion to dismiss all claims against them (Dkt. 11), and the plaintiff filed a response

(Dkt. 17). The motion is ripe for decision. Having reviewed the pleadings, the motions

and briefing, the applicable authorities, and all matters of record, the defendants’ motion

to dismiss will be GRANTED. The plaintiff’s motion to amend his complaint (Dkt. 18)

will be DENIED and his motion to dismiss one defendant in his individual capacity (Dkt.

19) will be GRANTED. The Court’s reasons are explained below.

I. BACKGROUND

Clemons alleges that a TDCJ board policy entitled Uniform Inmate Correspondence

Rules (BP-03.91), which was amended by the Texas Board of Criminal Justice in 2021,

contains an overly broad definition of “sexually explicit images” and caused his property

to be improperly confiscated. He sues Bobby Lumpkin, director of TDCJ, and nine

members of the Texas Board of Criminal Justice for their roles in amending BP-03.91. He

also sues three defendants at the Wynne Unit, where he is incarcerated: Warden Rocky

Moore; Miriam Gitau, a property officer; and Joseph Kuguma, a correctional officer (Dkt.

1).1

The defendants have submitted a copy of BP-03.91 (Dkt. 11-1), which is also

available on TDCJ’s public website.2 The policy provides that general correspondence and

publications sent to inmates are subject to inspection by TDCJ officials, and authorizes

officials to reject correspondence or publications for certain content, including sexually

explicit images (Dkt. 11-1, at 12-14). It defines a “sexually explicit image” as an image

which either “depicts sexual behavior,” “is intended to cause sexual excitement or arousal,”

or shows the following:

[F]rontal 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.

(id. at 5). Clemons states that this definition of sexually explicit images, which was

amended in 2021, is broader than the definition in earlier versions of BP-03.91.

1 Clemons filed a previous suit challenging the amended version of BP-03.91. See Clemons

v. TDCJ, Civil Action No. 4:21-2475 (S.D. Tex.). On August 27, 2021, the Court dismissed the

suit without prejudice because Clemons had filed only a motion for preliminary injunctive relief

and had not filed a civil complaint.

2 See Uniform Inmate Correspondence Rules, BP-03.91 (rev. 5) (June 25, 2021), available

at https://www.tdcj.texas.gov/documents/policy/BP0391.pdf (last visited July 25, 2023).

On November 4, 2021, shortly after the amended policy took effect, Officer

Kuguma confiscated approximately 500 photos and three magazines from Clemons on the

grounds that the confiscated items contained sexually explicit images. He also wrote a

disciplinary case against Clemons. Clemons alleges that Kuguma was acting at the

direction of Gitau (Dkt. 1, at 6-7). He argues that, because the confiscated materials had

been approved by TDCJ at the time he obtained them under the former policy, he possessed

them in accordance with TDCJ rules and the confiscation was improper (Dkt. 17, at 14-

15). He also argues that BP-03.91 prohibits images that are not actually explicit. 3

After a disciplinary hearing, Clemons was convicted of possession of contraband,

in particular, sexually explicit images. See Dkt. 6, at 13 (disciplinary case record,

submitted by Clemons as Exhibit L to his prior request for injunctive relief, reflects his

conviction and punishment, in particular, loss of 10 recreation days and 10 commissary

days). Clemons claims that, despite the provision in the policy for case-by-case review of

publications, the hearing officer did not adequately review the material confiscated from

him (Dkt. 1 ,at 7). He maintains that “[s]ome of the photos were not showing any sexual

content” and that “about 95% of the photos that were sexual in nature did not cross the

threshold that would designate them as sexually explicit” (id.).

In this lawsuit, Clemons claims that BP-03.91’s definition of sexually explicit

3 In his prior filing seeking a preliminary injunction, Clemons submitted multiple

photographs including images of “lingerie, thongs, bikinis, and sex toys” that Clemons describes

as “not sexually explicit in and of themselves” but subject to confiscation under the amended

policy (Dkt. 6, at 4-5; see id. (Exhibits A-J)). The Court denied injunctive relief on August 25,

2022 (Dkt. 9).

images, as amended in 2021, is overly broad and violates his First Amendment rights.4 He

also claims that officials did not comport with applicable due process standards when

confiscating his property. He asks the Court to issue a declaratory judgment and

permanently enjoin the BP-03.91’s amended definition of sexually explicit images, arguing

that the definition is “irreconcilable” with former versions of the policy “and long standing

precedent” (Dkt. 1, at 8). He also seeks an order instructing Warden Moore to expunge his

disciplinary conviction from his record; compensatory damages of approximately $415-

540 for confiscated photos, albums, and magazines; and punitive damages of $10,000 (id.

at 6, 8; see Dkt. 17, at 2).

The defendants seek dismissal of all claims.

II. LEGAL STANDARDS

A. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) may be granted if the pleading “fail[s] to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In considering

a Rule 12(b)(6) motion, courts generally must accept the factual allegations contained in

the complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th

Cir. 2009). Federal pleading rules require “only ‘a short and plain statement of the claim

4 Clemons has submitted materials from Nicholas Taft, another inmate who agrees with

Clemons’ position. Taft states that he received three novels through TDCJ’s mailroom after the

amended policy went into effect. See Dkt. 20 (Taft declaration); Dkt. 22 (three novels). Taft

claims that the novels contain “sexually explicit text that, according to experts, may conjure up

images no different than that of an actual image” (Dkt. 20, at 1). After giving examples of sexually

explicit text from the novels, he avers that the amended policy is “ambiguous and contradictory”

because it allows inmates to receive novels that are “intended to cause sexual excitement or

arousal” but prohibits sexually explicit images (id. at 2).

showing that the pleader is entitled to relief.’” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting FED. R. CIV. P. 8(a)(2)). The complaint must, however, contain

sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that

is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see Patrick v.

Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). The pleadings also must claim that the

plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S.

319, 327 (1989); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Under this standard,

the court “construes the complaint liberally in favor of the plaintiff,” “takes all facts

pleaded in the complaint as true,” and considers whether “with every doubt resolved on

[the plaintiff’s] behalf, the complaint states any valid claim for relief.” Harrington, 563

F.3d at 147 (cleaned up).

The court’s review under Rule 12(b)(6) is limited to “the complaint, any documents

attached to the complaint, and any documents attached to the motion to dismiss that are

central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see Walch v. Adjutant General’s

Dep’t of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (on a Rule 12(b)(6) motion, documents

attached to the briefing may be considered by the court if the documents are sufficiently

referenced in the complaint and no party questions their authenticity (citing 5B Charles

Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.

2004)). The Court may also rely on judicially noticed facts. Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011).

B. Pro Se Pleadings

“Pleadings must be construed so as to do justice.” FED. R. CIV. P. 8(e). In reviewing

the pleadings, the Court is mindful of the fact that the plaintiff proceeds pro se. Complaints

filed by pro se litigants are entitled to a liberal construction and, “however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). Even under this lenient standard

a pro se plaintiff must allege more than “‘labels and conclusions’ or a ‘formulaic recitation

of the elements of a cause of action.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 555). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

III. ANALYSIS

Clemons brings a First Amendment claim challenging BP-03.91, specifically, its

definition of sexually explicit images. He also brings a Fourteenth Amendment due

process claim regarding his confiscated property. His claims are cognizable under 42

U.S.C. § 1983, which provides a vehicle for a claim against a person “acting under color

of state law,” such as a prison official, for a constitutional violation. See Pratt v. Harris

Cty., Tex., 822 F.3d 174, 180 (5th Cir. 2016).5 Pursuant to Federal Rule of Evidence

201(b), the Court takes judicial notice of BP-03.91 (Dkt. 11-1), which is a matter of public

5 Clemons concedes that he did not exhaust his administrative remedies before filing suit,

but claims that prison officials interfered with his ability to pursue his remedies (Dkt. 1 at 4; Dkt.

8, at 2 (motion for leave to amend pleadings regarding grievance proceedings); see Dkt. 9 (granting

leave to amend)). The defendants do not assert exhaustion, which is an affirmative defense. See

Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir. 2007). Therefore, the Court does not address the

exhaustion issue.

record and not subject to reasonable dispute. The Court may rely on these judicially noticed

facts without converting the motion to dismiss to a motion for summary judgment. See

Funk, 631 F.3d at 783.

A. Sovereign Immunity

As a preliminary matter, the Court addresses sovereign immunity for the defendants

sued in their official capacity.

A claim against an official employed by TDCJ in his or her official capacity is a

claim against the agency, and thus a claim against the State of Texas. See Mayfield v. Tex.

Dep’t of Crim. Justice, 529 F.3d 599, 604 (5th Cir. 2008). Because the Eleventh

Amendment protects the states’ sovereign immunity, federal courts lack jurisdiction over

suits against a state for money damages unless the state has waived its immunity or

Congress has clearly abrogated that immunity. NiGen Biotech, L.L.C., v. Paxton, 804 F.3d

389, 393-94 (5th Cir. 2015); Moore v. La. Bd. of Elem. and Secondary Educ., 743 F.3d

959, 963 (5th Cir. 2014). Texas has not waived its Eleventh Amendment immunity, and

Congress did not abrogate that immunity when enacting Section 1983. NiGen, 804 F.3d at

394. Therefore, to the extent Clemons sues the defendants in their official capacity as state

employees, the defendants are entitled to immunity under the Eleventh Amendment from

claims for monetary damages, and those claims will be dismissed.

B. First Amendment

Clemons alleges that the defendants violated his First Amendment rights. A

prisoner “retains those First Amendment rights that are not inconsistent with his status as

a prisoner or with the legitimate penological objectives of the corrections system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974). When a prisoner’s rights with respect to mail are

affected by a prison practice or regulation, “the appropriate inquiry is whether the practice

is reasonably related to a legitimate penological interest.” Brewer v. Wilkinson, 3 F.3d 816,

824 (5th Cir. 1993); see Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989); Turner v.

Safley, 482 U.S. 78, 89 (1987). The defendants do not carry the burden to show that the

policy is rationally related to a legitimate penological goal. Overton v. Bazzetta, 539 U.S.

126, 132 (2003) (“The burden ... is not on the State to prove the validity of prison

regulations but on the prisoner to disprove it”). Rather, an inmate bears the burden to prove

that the prison’s practice or regulation is not reasonably related to, or is an “exaggerated

response” to, a legitimate penological objective. See Prison Legal News v. Livingston, 683

F.3d 201, 215 (5th Cir. 2012) (citing Overton, 539 U.S. at 132; Turner, 482 U.S. at 87).

Courts must give substantial deference to prison officials’ exercise of their professional

judgment. Id..

In this case, Clemons alleges that BP-03.91’s amended definition of sexually

explicit images is overly broad and not reasonably related to legitimate goals such as safety,

security, or rehabilitation (Dkt. 5). He also argues that the defendants have not submitted

evidence to demonstrate that their departure from the former definition is justified. See,

e.g., Dkt. 1, at 7 (claiming that the policy bans materials that “have been accepted by TDCJ-

CID for decades” and are “sexual in nature, but not crossing the threshold to be designated

sexually explicit”); Dkt. 17, at 7 (arguing that the policy bans materials not “traditionally

defined as ‘sexually explicit’” (citing, inter alia, Cline v. Fox, 319 F. Supp. 2d 685 (N.D.

W. Va. 2004)); id. at 9-11 (arguing that the policy improperly bans material that is

“suggestive” but not “explicit”); id. at 11 (arguing that TDCJ officials have failed to put

forth a reason, such as deviant behavior, that “a wide departure” from the previous policy

was necessary). The defendants argue that dismissal is warranted because Clemons has

not sufficiently pleaded that BP-03.91 lacks a rational relation to a legitimate penological

objective, citing authority holding that “the policy is rationally related to several legitimate

penological goals including maintaining discipline and preventing inappropriate sexual

behavior” (Dkt. 11, at 7).

The Fifth Circuit has held that prison policies regulating sexually explicit images

are reasonably related to legitimate penological interests. See Thompson v. Patteson, 985

F.2d 202, 205-06 (5th Cir. 1993) (rejecting a First Amendment challenge to prior Texas

procedures for reviewing and limiting access to sexually explicit material in mail or

publications sent to inmates) (citing Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978));

Brewer, 3 F.3d at 824 (a prison may impose regulations and policies that impinge on a

prisoner’s First Amendment rights if they are reasonably related to a legitimate penological

interest). In 2013, the Fifth Circuit dismissed an appeal in which the inmate argued that

prison officials had incorrectly categorized some images as sexually explicit, citing

Thompson and deeming the appeal frivolous. Stroble v. Livingston, 538 F. App’x 479 (5th

Cir. 2013). District courts in Texas have repeatedly dismissed First Amendment challenges

to BP-03.91 based on this precedent, including several recent challenges to the policy’s

amended definition of sexually explicit images.6

6 See, e.g., Thompson v. Lumpkin, No. 2:21-CV-00154, 2022 WL 4110926, at *8 (S.D. Tex.

July 6, 2022) (recognizing interests of discipline and prevention of inappropriate sexual behavior),

Clemons’ argument that BP-03.91’s definition of sexually explicit images is flawed

or incorrect is insufficient to state a valid claim for relief under the precedent above. The

Court must defer to the judgment exercised by prison administrators when drafting a

definition related to their legitimate penological goals. See Overton, 539 U.S. at 132 (“We

must accord substantial deference to the professional judgment of prison administrators,

who bear a significant responsibility for defining the legitimate goals of a corrections

system and for determining the most appropriate means to accomplish them”). As multiple

courts have held, an inmate’s disagreement with prison administrators’ judgment is

insufficient to state a constitutional claim.7 Here, Clemons fails to plead specific facts that

could overcome this deference owed to TDCJ administrators. See Beard v. Banks, 548

report and recommendation adopted, 2022 WL 4110160 (S.D. Tex. Sept. 7, 2022); McCullough

v. O'Daniel, No. 2:21-CV-00176, 2022 WL 3219802, at *7 (S.D. Tex. July 6, 2022) (recognizing

interests of discipline and prevention of inappropriate sexual behavior), report and

recommendation adopted, 2022 WL 3212933 (S.D. Tex. Aug. 8, 2022); Ibenyenwa v. Texas Bd.

of Crim. Just., No. 9:19CV1, 2022 WL 2815313, at *3 (E.D. Tex. Mar. 31, 2022) (recognizing

interest of protecting female guards and preventing inappropriate sexual behavior), report and

recommendation adopted, 2022 WL 2813720 (E.D. Tex. July 18, 2022).

7 See Prison Legal News, 683 F.3d at 216 (“It is, of course, extremely difficult for courts to

judge whose assessment is more likely correct, which highlights the importance of the deference

that is accorded to prison administrators applying reasonable policies”); Stroble, 538 F. App’x at

480 (prison authorities enjoy “a certain degree of discretion . . . to determine what constitutes

impermissible sexually explicit material”) (cleaned up) (citing Thompson, 985 F.2d at 207);

Teixeira v. O'Daniel, No. A-22-CV-1155-RP, 2023 WL 3082350, at *4 (W.D. Tex. Apr. 25, 2023)

(rejecting the plaintiff’s claim that other inmates were allowed to receive “publications that contain

substantially similar images” to the ones he was denied because “prison rules necessarily confer a

certain degree of discretion on prison authorities to determine what constitutes impermissible

sexually explicit material,” quoting Thompson, 985 F.2d at 207); Ibenyenwa, 2022 WL 2815313,

at *3 (“Plaintiff’s disagreement with the prison’s definition or determination of what is sexually

explicit material is insufficient to establish that the regulation is not rationally related to a

legitimate penological goal”).

U.S. 521, 525 (2006) (plaintiff attacking a prison policy had “failed to set forth ‘specific

facts’ that, in light of the deference that courts must show to the prison officials, could

warrant a determination in his favor”).

Additionally, although Clemons argues that the definition is unconstitutional

because it bans materials that do not meet legal standards for obscenity, see, e.g., Dkt. 17,

at 12, the Fifth Circuit has explicitly rejected this argument. See Thompson, 985 F.2d at

205 (rejecting argument that “prison officials could ban only material that had been

declared judicially obscene”); Stroble, 538 F. App’x at 480 (holding that “prison officials

may limit prisoners’ access to sexually explicit materials even if they are not obscene”).

Clemons’ challenge to BP-03.91 is foreclosed by Fifth Circuit precedent. Viewing

all facts in the light most favorable to Clemons, the defendants’ motion to dismiss will be

granted.

C. Fourteenth Amendment

Clemons brings a claim under the Due Process Clause of the Fourteenth

Amendment, arguing that the defendants violated his due process rights when they

confiscated his property, namely, 500 photos and three magazines that officials determined

contained sexually explicit images. He points out that he acquired the property under prior

regulations that permitted him to possess it and that the materials had been screened by

TDCJ officials. The Court addresses his substantive and procedural due process claims.8

8 Clemons states in his response that he does not bring a claim under the Equal Protection

Clause (Dkt. 17, at 19).

1. Substantive Due Process

A plaintiff bringing a substantive due process claim “must show that the

government’s deprivation of a property interest was arbitrary or not reasonably related to

a legitimate governmental interest.” Williams v. Tex. Tech Univ. Health Scis. Ctr., 6 F.3d

290, 294 (5th Cir. 1993); see Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The

touchstone of due process is protection of the individual against arbitrary action of

government”). The Fifth Circuit has held that “only the most egregious official conduct is

arbitrary in the constitutional sense.” Coleman v. Dretke, 395 F.3d 216, 224 (5th Cir. 2004)

(cleaned up). The “threshold issue” is whether the plaintiff has a protected property interest

because, “[i]f there is no protected property interest, there is no process due.” Wigginton

v. Jones, 964 F.3d 329, 335 (5th Cir. 2020) (cleaned up).

Here, the parties dispute whether the confiscated property was contraband and thus

whether Clemons had a protected interest in the property. See Sullivan v. DeRamcy, 460

F. App’x 374, 375 (5th Cir. 2012) (an inmate does not have a protected property interest in

the possession of contraband). Clemons argues strenuously that the material was not

contraband because he acquired and possessed it with the approval of TDCJ officials when

previous versions of the policy were in effect. The Court will assume, for purposes of this

opinion, that the confiscated property was not contraband.

Clemons alleges that the amended policy caused officials to “arbitrarily” seize his

property (Dkt. 17, at 17). However, he clearly and repeatedly states that the confiscations

were carried out pursuant to the amended policy. See id. at 14 (alleging that the amended

policy transformed his previously received material into sexually explicit material); id. at

17 (stating that the confiscation was not “a random[,] unauthorized act by a State

employee” but rather was “the result of . . . a newly amended State Prison policy”). A

confiscation effected according to authority granted by a prison policy is not an arbitrary

deprivation of property. See DeMarco v. Davis, 914 F.3d 383, 387 (5th Cir. 2019) (holding,

in context of procedural due process claim, that conduct dictated by policy is not random

or unauthorized); Schwarzer v. Wainwright, 810 F. App’x 358, 359 (5th Cir. 2020) (same).

Clemons thus fails to adequately plead that the defendants’ confiscation was arbitrary.

Moreover, as held above in the context of Clemons’ First Amendment claim, he has failed

to adequately plead that the amended policy, and its definition of sexually explicit images,

is not reasonably related to a legitimate governmental interest. See Williams, 6 F.3d at 294.

Therefore, his claim that he was deprived of a protected property interest without due

process must fail.

Clemons does not clearly articulate a liberty interest of which he was deprived. An

inmate has a liberty interest in freedom from restraint that “imposes an atypical and

significant hardship on the inmate in relation to ordinary incidents of prison life,” or in

those that extend the length or duration of confinement. Sandin v. Conner, 515 U.S. 472,

484 (1995). To the extent Clemons bases his claim on his denied grievances about the

confiscation, his claim fails because an inmate “does not have a federally protected interest

in having [his] grievances resolved to his satisfaction.” Geiger, 404 F.3d at 374. To the

extent he bases his claim on his disciplinary conviction for possession of contraband, his

only penalties, i.e., the loss of recreation and commissary privileges for 10 days, do not

implicate due process concerns. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)

(punishments such as commissary and cell restrictions are “merely changes in the

conditions of [an inmate’s] confinement” and do not implicate due process concerns). He

therefore fails to state a claim based on a protected liberty interest.

2. Procedural Due Process

Clemons claims that the defendants violated his procedural due process rights when

they confiscated his property and did not compensate him.

To the extent that Texas prisoners have a right to possess personal belongings, the

deprivation of property implicates the Constitution only if such deprivation is

accomplished without due process. See Parratt v. Taylor, 451 U.S. 527, 537 (1981),

overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Procedural

due process requirements for deprivations caused by state officials’ authorized conduct are

different from those caused by officials’ unauthorized conduct. When a deprivation is

authorized by an official policy, an inmate must be afforded some combination of notice

prior to the deprivation and an opportunity to be heard. See Zinermon v. Burch, 494 U.S.

113, 127-28 (1990); Stotter v. Univ. of Tex. San Antonio, 508 F.3d 812, 821-22 (5th Cir.

2007). However, when officials engage in random and unauthorized conduct depriving an

inmate of property, the deprivation is not foreseeable by the State and pre-deprivation

process is impractical. For unauthorized deprivations, therefore, the State can satisfy due-

process requirements by making available a meaningful post-deprivation tort remedy.

Zinermon, 494 U.S. at 128-29; see Parratt, 451 U.S. at 541; Hudson v. Palmer, 468 U.S.

517, 533 (1984); Myers v. Klevenhagen, 97 F.3d 91, 95 (5th Cir. 1996). Texas provides a

post-deprivation remedy for property loss. See TEX. GOV’T CODE §§ 501.007.

As above, the Court will assume for purposes of this opinion that Clemons had the

right to possess the confiscated property, i.e., that the property was not contraband.

Clemons alleges that the amended policy authorized the confiscation (Dkt. 17, at

17). For an authorized deprivation, Clemons was entitled to some combination of notice

prior to the deprivation and an opportunity to be heard. See Zinermon, 494 U.S. at 127-28;

Stotter, 508 F.3d at 821-22. Clemons has submitted a “Disposition of Confiscated Offender

Property” form that bears his signature dated November 4, 2021 (Dkt. 6, at 11-12 (Exhibit

K)).9 Above Clemons’ signature, the form states, “If you disagree with the decision to

confiscate these items, it is your responsibility to notify property staff of your intention to

pursue the matter through offender grievance procedures” (Dkt. 6, at 11). This document,

submitted by Clemons, demonstrates that he received actual notice of the confiscation.10

Additionally, Clemons’ pleadings and filings demonstrate that he received an

opportunity to be heard through his disciplinary hearing (Dkt. 6, at 13) and the

administrative grievance process (Dkt. 21). Although Clemons did not prevail in his

grievance or disciplinary case, these procedures satisfy the Due Process Clause. See

9 The Court may consider this document because Clemons sufficiently references the

document in his pleadings, see Dkt. 1, at 7 (citing Exhibit K), and because no party questions its

authenticity. See Walch, 533 F.3d at 294.

10 Although the defendants argue that BP-03.91 requires TDCJ to provide notice of the

confiscation and an opportunity to be heard, none of the cited policy provisions apply to this

precise situation, i.e, confiscation of materials already delivered to, and possessed by, the inmate.

Rather, the cited provisions apply to officials’ review and rejection of certain incoming or outgoing

mail. See Dkt. 11, at 8 (citing § IV.D, which pertains to notice to an inmate of the mailroom’s

decision to reject correspondence; § IV.F, which pertains to notice to an inmate if incoming

material requires further review; and, § V.B, which pertains to notice to an inmate after an appellate

decision regarding denied correspondence).

Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014) (due process requirements were

satisfied because the inmate was able to make his claims through the grievance process and

officials responded with a written justification for their denial of relief); Geiger, 404 F.3d

at 374 (inmate does not have protected interest in having grievances resolved to his

satisfaction); Evans v. Baker, 442 F. App’x 108, 110 (5th Cir. 2011) (inmate “received the

due process protections required when he received notice of the basis for the confiscation

of the subject property and a fair opportunity to rebut the allegations concerning his

ownership of the property at the [disciplinary] hearing and in his grievances”).

Finally, Clemons argues that his due process rights were violated because he was

never compensated for property he obtained in compliance with past rules (Dkt. 17, at 15)

(citing Hudson, 468 U.S. at 533; Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988)).

However, the legal authority cited by Clemons pertains to an official’s unauthorized

deprivation of an inmate’s property. As stated above, Clemons clearly alleges that the

confiscation of his property was authorized by BP-03.91. Moreover, even assuming that

the deprivation was unauthorized, his remedy for the unauthorized withdrawal arises under

state law, not under the federal Due Process Clause. See Zinermon, 494 U.S. at 128-29;

TEX. GOV’T CODE §§ 501.007 (inmate claims for lost or damaged property). Therefore, to

the extent Clemons pleads any unauthorized deprivation of property, he fails to state a due

process claim.

D. Other Motions

Clemons has filed a motion for leave to amend his complaint (Dkt. 18). He seeks

to add the Directors’ Review Committee as a defendant and bring a claim pertaining to

events on November 9, 2022, when mailroom officials denied delivery of four photos to

Clemons on the basis that they contained sexually explicit images. These events occurred

after Clemons filed this lawsuit on December 8, 2021.

When a plaintiff seeks to supplement the pleadings and bring a claim based on

events that happened “after the date of the pleading to be supplemented,” the request is

governed by Federal Rule of Civil Procedure 15(d). Haggard v. Bank of Ozarks Inc., 668

F.3d 196, 202 (5th Cir. 2012). Whereas Rule 15(a) provides that leave to amend should be

“freely given,” the text of Rule 15(d) contains no such provision regarding supplemental

pleadings. Burns v. Exxon, 158 F.3d 336, 343 (5th Cir. 1998). Nevertheless, “the

discretion exercised in deciding whether to grant leave to amend is similar to that for leave

to file a supplemental pleading.” Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir. 1983)

(citing 6 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1504 (1971)); see

Lowrey v. Beach, 708 F. App’x 194, 195 (5th Cir. 2018).

Here, the incident underlying the proposed supplement occurred approximately one

year after the confiscation on November 4, 2021, which is the basis for Clemons’ original

claims in this suit. Whereas Clemons’ original claims pertained to a confiscation, the

proposed supplement involves denied incoming correspondence, and apparently involves

different provisions in BP-03.91. Moreover, Clemons seeks to bring the claims against the

Directors’ Review Committee, an entity that is not a defendant in this action. For all of

these reasons, the Court in its discretion will deny Clemons’ motion to amend. See Burns,

158 F.3d at 343; Lowrey, 708 F. App’x at 195. Clemons may, if appropriate, file a separate

action regarding the incident in November 2022.

Clemons’ motion to dismiss Warden Moore in his individual capacity (Dkt. 19) will

be granted.

IV. CONCLUSION

For the reasons stated above the Court now ORDERS as follows:

1. The defendants’ motion to dismiss (Dkt. 11) is GRANTED. All of Clemons’

claims are DISMISSED with prejudice.

2. Clemons’ motion to amend his complaint (Dkt. 18) is DENIED.

3. Clemons’ motion to dismiss (Dkt. 19) is GRANTED.

The Clerk will provide a copy of this order to the parties.

SIGNED at Houston, Texas, on July 27 , 2023.

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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