Harrison v. Collier

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

GREGORY JAY HARRISON, §

TDCJ-CID No. 02236153, §

§

Plaintiff, §

§

v. § 2:24-CV-127-Z-BR

§

BRYAN COLLIER, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS COMPLAINT

Before the Court is the Complaint (ECF 3) filed by Plaintiff Gregory Jay Harrison

(“Harrison”) against Defendants Bryan Collier, Raleigh Breedon, Leeroy Cano, Stormie Smith,

Securus, LLC and Aventiv Technologies, alleging violations of Harrison’s civil rights under 42

U.S.C. § 1983. Harrison filed this lawsuit pro se while a prisoner in the Jordan Unit of the Texas

Department of Criminal Justice (“TDCJ”) in Pampa, Texas, and has been granted permission to

proceed in forma pauperis. As such, his lawsuit is subject to preliminary screening as provided by

the Prison Litigation Reform Act (“PLRA”). Pursuant to such screening and for the reasons stated

below, the Magistrate Judge recommends that Harrison’s Complaint be DISMISSED under 28

U.S.C. §§ 1915 and 1915A.

I. STANDARD OF REVIEW

A court must dismiss a complaint filed in forma pauperis by a prisoner against a

government entity or employee if the court determines that the complaint is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2017); see also Section 1915A(b)

(applying section to any suit by a prisoner against certain governmental entities, regardless of

whether the prisoner is proceeding in forma pauperis). A frivolous complaint lacks any arguable

basis, either in fact or in law, for the wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint has no arguable basis in fact if it rests upon clearly fanciful or baseless factual

contentions, and similarly lacks an arguable basis in law if it embraces indisputably meritless legal

theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). When analyzing a

prisoner’s complaint, the court may consider reliable evidence such as the plaintiff’s allegations,

responses to a questionnaire, and authenticated prison records. Wilson v. Barrientos, 926 F.2d 480,

483-84 (5th Cir. 1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (explaining that

responses to a questionnaire or testimony given during an evidentiary hearing are incorporated into

the plaintiff’s pleadings).

In evaluating the sufficiency of a complaint, the Court accepts well-pleaded factual

allegations as true, but does not credit conclusory allegations that merely restate the legal elements

of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016). While courts hold

pro se plaintiffs to a more lenient standard than attorneys when analyzing complaints, such

plaintiffs must nevertheless plead factual allegations that raise the right to relief above a

speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

II. LEGAL ANALYSIS

A. Factual Background.1

Harrison’s Complaint arises from delays in receiving mail from his family due to TDCJ’s

policy of requiring incoming mail to be scanned by Securus for inmates to read on a tablet. (ECF

1These background facts are taken from Harrison’s Complaint (ECF 3) and questionnaire responses (ECF

8) and are assumed to be true for the purpose of evaluating the merits of Harrison’s causes of action.

3 at 4). He claims that the up to three-month delay caused by the scanning process has caused him

to miss letters telling him to call dying family members in the hospital to say goodbye before they

passed away. These mail delays, he states, have caused him undue stress and duress on both

himself and his family. (Id.).

Harrison filed this civil rights lawsuit on June 11, 2024, against Defendants Bryan Collier

(“Collier”), Bobby Lumpkin (“Lumpkin”), Tammy Shelby (“Shelby”), Raleigh Breeden

(“Breeden”), Leeroy Cano (“Cano”), Stormie Smith (“Smith”), Securus LLC (“Securus”) and

Advantiv Technologies (“Advantiv”). (Id.). Collier is the executive director of TDCJ, whom

Harrison claims has the “final say-so” on operational changes and must have approved the

electronic mail delivery program. (ECF 8 at 1). Lumpkin, at the time Harrison filed his Complaint,

was the executive director of the TDCJ’s correctional institution division. As a supervisor,

Harrison contends, Lumpkin saw the complaints and issues regarding the mail system and failed

to rectify the problems. (Id. at 2). Shelby is the executive director over the TDCJ mail system. (Id.

at 3). Breedon is the Jordan Unit warden, and Cano is the assistant warden, both of whom also

failed to eliminate the delays. (Id. at 3, 4). Smith is the mail room supervisor of the Jordan Unit

who “no longer has any control over when [the mail] will show up.” (Id. at 5). Harrison also sues

Securus and its parent company, Advantiv, as the providers of the allegedly deficient mail scanning

service.

Harrison asks the Court to reinstate paper mail until the glitches in the electronic delivery

system are eliminated or until a more efficient and quicker mail delivery system is implemented.

(ECF 3 at 4). For the reasons stated below, the Complaint should be dismissed as frivolous.

A. Mail Delay Is Not a Constitutional Violation.

Harrison alleges that his First Amendment rights were violated by mail delays of three

months due to TDCJ’s policy of scanning hard copies and requiring inmates to read mail

electronically. The policy has caused him to miss important family information, and money orders

never made it into his inmate trust fund account, nor were they returned to the sender. (ECF 8 at

3). However, an allegation that a prisoner’s mail was delayed, without more, is insufficient to show

a constitutional violation. See Pinson v. U.S. Dep’t of Just., No. CV 12-1872 (RC), 2015 WL

13673660, at *3 (D.D.C. July 28, 2015); LaVergne v. McDonald, 2020 WL 7090064, at *6 n. 62

(M.D. La. Nov. 23, 2020), R. & R. adopted, 2020 WL 7081598 (M.D. La. Dec. 3, 2020).

Harrison does not allege that he has been prevented from sending or receiving mail as a

result of the TDCJ scanning policy, and it does not appear that Harrison’s mail was censored in

any way. He does not claim that the scanning policy has affected his legal mail. He has failed to

identify any person in the prison mailroom or otherwise who has had direct and personal

involvement with any intentional mishandling of his mail. The simple fact that his mail is delayed

by the new scanning process is not a constitutional violation.

Regarding his missing money orders, such claim does not implicate the U.S. Constitution

if a viable state post-deprivation remedy exists to redress the loss. Hudson v. Palmer, 468 U.S.

517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 542 (1981). Under the Parratt/Hudson doctrine,

“a deprivation of a constitutionally protected property interest caused by a state employee’s

random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless

the State fails to provide an adequate post[-]deprivation remedy.” Allen v. Thomas, 388 F.3d 147,

149 (5th Cir. 2004) (quotation marks and citations omitted). Even if Harrison had named an

individual defendant who was intentionally stealing his money orders, the Texas judicial and

administrative systems allow prisoners to file ordinary tort claims, such as conversion, or pursue

an administrative remedy for lost property. See Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir.

1995); Spurlock v. Schroedter, 88 S.W.3d 733, 737 (Tex. App.--Corpus Christi 2002).

Accordingly, Harrison has not stated a constitutional violation due to mail delays.

B. Supervisory Liability Claims Against Collier, Lumpkin, Shelby, Breeden and Cano.

Harrison alleges that Collier, Lumpkin, Shelby, Breeden and Cano (the “Supervisory

Defendants”) are liable as supervisors who have control over the mail scanning process. Under

Section 1983, however, supervisors are not liable for the actions of others, including their

subordinates. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Instead, only the direct acts or

omissions of the supervisor will support a claim for individual liability under Section 1983. Monell

v. Dep’t of Social Servs., 436 U.S. 658, 692 (1978); Jones v. Lowndes County, Miss., 678 F.3d

344, 349 (5th Cir. 2012); see also Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992) (a plaintiff

bringing a Section 1983 action must “specify the personal involvement of each defendant”). A

supervisor may be held liable under Section 1983 only when (1) the supervisor was personally

involved in the constitutional deprivation, (2) there is a causal connection between the supervisor’s

wrongful conduct and a constitutional deprivation, or (3) the supervisor implemented a policy so

deficient that the policy itself violates constitutional rights and is the moving force behind a

constitutional deprivation. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987); see also Peña

v. City of Rio Grande City, 879 F.3d 613, 620 (5th Cir. 2018); Gates v. Tex. Dep’t of Prot. & Reg.

Servs., 537 F.3d 404, 435 (5th Cir. 2008).

To the extent that Harrison sues the Supervisory Defendants in their capacity as

supervisors, Harrison fails to state a claim. Neither Harrison’s Complaint nor his questionnaire

responses allege facts establishing that any of the Supervisory Defendants were personally

involved in a decision that violated his constitutional rights, nor does Harrison allege that the

Supervisory Defendants implemented a specific policy that resulted in a constitutional violation.

Even if the Supervisory Defendants personally implemented the electronic mail policy of which

he complains, the late receipt of mail from family members is not a constitutional violation, as

shown above. Therefore, even if a policy implemented by the Supervisory Defendants created mail

delays, the policy does not violate Harrison’s constitutional rights. Harrison’s claim against the

Supervisory Defendants should be dismissed as frivolous.

C. Claims Against Smith and Shelby.

Harrison alleges that TDCJ policy provides that mail cannot be delayed longer that three

days without just cause or a written notice, but that delays have lasted up to three months. He sues

Smith and Shelby for violation of TDCJ’s mail policy. (ECF 8 at 3, 5). However, an assertion that

officials failed to follow prison rules or policies does not state a constitutional claim. McFaul v.

Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012), citing Jackson v. Cain, 864 F.2d 1235, 1251–52

(5th Cir. 1989); see also Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam).

TDCJ’s policies, internal rules and regulations, standing alone, do not create federally protected

rights. See Sandin v. Conner, 515 U.S. 472, 487 (1995); Jackson, 864 F.2d at 1251-52 (“A state’s

failure to follow its own procedural regulations does not establish a violation of due process,

because constitutional minima may nevertheless have been met.” (internal quotation omitted)).

The allegation that Smith and Shelby failed to follow a prison rule, even if true, does not state a

constitutional law violation.

D. Claims Against Defendants Securus and Aventiv.

Harrison sues Securus and Aventiv for the mail delays. To state a civil rights claim under

Section 1983, a plaintiff must allege facts showing that he has been deprived of a right secured by

the Constitution or laws of the United States, and that the deprivation was caused by someone

acting under color of state law. Baker v. McCollan, 443 U.S. 137 (1979). The requirement to show

that a defendant violated a plaintiff’s rights while acting under color of state law means the

defendant must be a state actor. Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017); Whitley v.

Hanna, 726 F.3d 631, 638 (5th Cir. 2013). Private parties are not state actors subject to suit under

Section 1983 unless their conduct is “fairly attributable to the state.” Moody, 868 F.3d at 352; see

also Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Section 1983 provides a cause of action against

any person who deprives an individual of federally guaranteed rights ‘under color’ of state

law….”).

The mere fact that Securus has contracted with TDCJ to provide tablets and mail scanning

services to TDCJ inmates does not make Securus, its employees, or its parent company a “state

actor” for the purpose of Section 1983 liability. Aguirre v. Securus Technology, No. 6:24-cv-141,

2024 WL 5151140 (E.D. Tex. July 29, 2024) (collecting cases), R. &. R adopted, 2024 WL

5145953 (E.D. Tex. Dec. 17, 2024). Because neither Securus nor Aventiv are state actors,

Harrison’s claims against them must be dismissed as frivolous.

E. Leave to Amend.

Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to

dismissal. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). The district court is not

required to allow such an opportunity, though, if the prisoner’s claims are clearly frivolous, Eason

v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994), or if the prisoner has pleaded his best case in the current

complaint. Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020). Harrison has fully

responded to the Court’s questionnaire and set out his claims in adequate detail in his Complaint.

Further amendment would be futile because he cannot overcome the fact that a delay in receiving

mail from family members is simply not a violation of his constitutional rights. Harrison has

pleaded his best case; therefore, leave to amend is unnecessary.

RECOMMENDATION

For the reasons stated above, the Magistrate Judge concludes that Harrison’s claims should

be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and that Harrison

be issued a strike within the meaning of 28 U.S.C. § 1915(g).

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED July 10, 2025.

LEE ANN RENO

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the

fourteenth (14th) day after this recommendation 1s filed as indicated by the “entered” date. See 28

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections

with the United States District Clerk and serve a copy of such objections on all other parties. A

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (Sth Cir. 1996) (en banc),

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (Sth Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,

276-77 (Sth Cir. 1988).