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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ROY EDWARD SMITH #1873319 §

§

V. § W-20-CA-263-ADA

§

BOBBY LUMPKIN §

ORDER

Before the Court are Plaintiff’s Complaint (#1), Plaintiff’s supplements (#6, 13), 

Plaintiff’s more definite statement (#9), Defendant’s Motion to Dismiss which the Court 

converted to a motion for summary judgment (#19), Defendant’s Amended Motion for 

Summary Judgment (#24), and Plaintiff’s Responses (#22, 23, 25). Plaintiff is proceeding 

pro se and in forma pauperis.

STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was 

confined in the Texas Department of Criminal Justice—Correctional Institutions Division. 

Plaintiff asserted that Defendant violated his First Amendment rights based on the newly 

implemented regulations of inmate mail. Plaintiff filed suit against Lorie Davis in her 

official capacity as director of TDCJ’s Correctional Institutions Division, but Bobby Lumpkin 

has since been substituted for Davis following Davis’s retirement and Lumpkin’s 

replacement of her as director. Plaintiff seeks injunctive relief, requiring that TDCJ find 

an alternative to its mail regulations that does not restrict inmate mail as significantly.

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DISCUSSION AND ANALYSIS

A. Factual Background

In March 2020, TDCJ implemented a new program entitled “Inspect 2 Protect.” 

This program increased limits on the types of mail inmates could receive. TDCJ indicated 

that the program was necessary to continue their efforts to combat the introduction of 

contraband into Texas prisons. Plaintiff contends that the new policy is too severe 

because it denies inmates the ability to receive greeting cards. Plaintiff asserts that 

receiving greeting cards can “put smiles on some of [the inmates] faces” and that the 

new policy hurts inmates unnecessarily. 

Plaintiff recognizes that TDCJ has an obligation to try to prevent contraband in 

prison. But in Plaintiff’s opinion, there are other ways to uncover contraband. Plaintiff 

believes that technology has advanced sufficiently that TDCJ should invest in other ways 

to prevent contraband, rather than punishing inmates by restricting their mail. Plaintiff

states that “not having the opportunity to receive greeting cards of any kind is pushing it 

way too far.” Plaintiff admits, however, that Defendant can restrict inmate 

correspondence rights. Plaintiff also allows that Defendant understandably wants to limit 

perfume, stickers, lipstick, bodily fluids, powdery substances, and artwork containing 

paint, glitter, glue, or tape. However, he contends that the limits are greater than 

necessary and that the new policy is too harsh. 

Defendant provides information on the policy and its purposes. Defendant admits 

that the “Inspect 2 Protect” policy limits the mail inmates can receive to only that 

submitted on standard white paper. Inmates may not receive mail on colored, decorated, 

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card stock, construction, linen, or cotton paper. Defendant provides evidence that 

inmates received over 7.5 million pieces of mail in 2019, and that nearly 3,500 per month 

contained an uninspectable or suspicious substance. Defendant also shows, as an 

example, a greeting card used to conceal eleven illegal sim cards. 

B. Summary Judgment Standard

A court will, on a motion for summary judgment, render judgment if the evidence 

shows that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 

1996); Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. 

denied, 502 U.S. 1059 (1992). When a motion for summary judgment is made and 

supported, an adverse party may not rest upon mere allegations or denials but must set 

forth specific facts showing there is a genuine issue for trial. Ray v. Tandem Computers, 

Inc., 63 F.3d 429, 433 (5th Cir. 1995); Fed. R. Civ. P. 56. 

Both movants and non-movants bear burdens of proof in the summary judgment 

process. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The movant with the burden of 

proof at trial must establish every essential element of its claim or affirmative defense. 

Id. at 322. In so doing, the moving party without the burden of proof need only point to 

the absence of evidence on an essential element of the non-movant’s claims or affirmative 

defenses. Id. at 323-24. At that point, the burden shifts to the non-moving party to 

“produce evidence in support of its claims or affirmative defenses . . . designating specific 

facts showing that there is a genuine issue for trial.” Id. at 324. The non-moving party 

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must produce “specific facts” showing a genuine issue for trial, not mere general 

allegations. Tubacex v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). 

In deciding whether to grant summary judgment, the Court should view the 

evidence in the light most favorable to the party opposing summary judgment and indulge 

all reasonable inferences in favor of that party. The Fifth Circuit has concluded “[t]he 

standard of review is not merely whether there is a sufficient factual dispute to permit 

the case to go forward, but whether a rational trier of fact could find for the non-moving 

party based upon the evidence before the court.” James v. Sadler, 909 F.2d 834, 837 

(5th Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

586 (1986)). 

C. Inmate First Amendment Rights and Mail

When analyzing a prisoner’s claim under the First Amendment that a regulation 

violates his rights, the Court must determine whether the government objective 

underlying the regulation at issue is legitimate and neutral, and whether the regulation 

is reasonably related to a legitimate penological interest. The Supreme Court has 

identified four factors that are relevant: (1) whether the regulation is rationally related to 

a legitimate penological goal; (2) whether alternative means of exercising First 

Amendment rights are available; (3) the impact of an accommodation on prison staff, 

inmates, and allocation of prison resources; and (4) whether there are easy and obvious 

alternative means of accommodating the asserted right. Prison Legal News v. Livingston, 

683 F.3d 201, 214 (5th Cir. 2012) (internal citations omitted). “[R]ationality is the 

controlling factor . . . and the remaining factors are best understood as indicators of 

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rationality.” Id. at 214-15 (internal citations omitted). Importantly, “regulations [that] are 

expressly aimed at protecting prison security . . . [are] central to all other corrections 

goals.” Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (internal citations and quotation 

marks omitted). Where a regulation restricts First Amendment rights in a neutral fashion, 

it is more likely to withstand judicial scrutiny. McAlister v. Livingston, 348 Fed. Appx. 923, 

931-932 (2009) (citing Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). In addition, the 

Fifth Circuit has long held that inmates do not possess a right to the unrestricted freedom 

of receipt and transmission of mail. Adams v. Ellis, 197 F.2d 483, 485 (5th Cir. 1952).

Here, Plaintiff admits that the regulation is rationally related to a legitimate 

penological goal. Indeed, he acknowledges that Defendant has the right to implement 

mail regulations in order to keep contraband out of prisons. As Defendant’s summary 

judgment evidence shows, control and review of inmate mail is an important aspect of 

prison security. In order to meet its legitimate penological interest of prison security, “[a]ll 

general [offender] correspondence shall be subject to the right of inspection and rejection 

by mailroom staff[,]” who may inspect offender mail for several categories of illicit 

offender activity, including the introduction of contraband into the prison through 

offender mail. Def. Ex. A 010-011. Thus, the restrictions that TDCJ placed on incoming 

mail through its “Inspect 2 Protect” program, including prohibiting certain types of paper 

and substances contained on or in inmate mail, are rationally related to the legitimate 

penological interest of prison security.

Plaintiff also acknowledges that alternative means of exercising First Amendment 

rights are available. He may send and receive correspondence on plain white paper or by 

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electronic message, and the quantity of that correspondence is not limited by the new 

policy. Furthermore, inmates are entitled to receive electronic messages. The undisputed 

summary judgment evidence indicates that in 2019, inmates received approximately 3.5 

million pages of electronic messages, including 1 million attachments. 

Plaintiff asserts that the impact of the accommodation on inmates, however, is too 

severe. He claims that disallowing greeting cards is too restrictive. These limits are 

undoubtedly severe, but as Defendant’s summary judgment evidence shows, contraband 

has been found concealed in greeting cards and on homemade cards soaked in synthetic 

marijuana. While the Court does not disregard Plaintiff’s assertion that greeting cards 

may increase morale among inmates, that alone is insufficient to overcome the need for 

prison security. While greeting cards may make inmates happy, it is certainly possible 

that the same positive feelings can come from any communication and well wishes from 

loved ones—the use of a greeting card to convey those messages is not a constitutional 

right. 

Finally, Plaintiff essentially argues that there must be some sort of technological 

way to address contraband in the prison mail system. Plaintiff fails to identify what 

method this might be, but he is convinced that TDCJ should invest in technology rather 

than limiting the receipt of greeting cards. While there may be alternative means of 

accommodating the asserted right, they are not easy or obvious. Even assuming there 

were additional ways that TDCJ could prevent the entry of contraband through the mail 

system, the “Inspect 2 Protect” policy does not prevent investment in those potential 

solutions as well. 

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There is no dispute of material fact that the “Inspect 2 Protect” program was 

implemented for the legitimate penological interest of prison security and the program’s 

restrictions on incoming inmate mail do not rise to the level of violating Plaintiff’s First 

Amendment rights.

CONCLUSION

It is therefore ORDERED that Defendant’s Amended Motion for Summary 

Judgment (#24) is GRANTED.

It is further ORDERED that Plaintiff’s claims against Defendants are DISMISSED 

WITH PREJUDICE. 

It is finally ORDERED that all other pending motions are DISMISSED. 

SIGNED on December 18, 2020

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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