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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

RICHARD DAVID PETERSON, #127173 §

VS. § CIVIL ACTION NO. 6:23cv471

GREGG COUNTY SHERIFF’S OFFICE §

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Richard David Peterson, an inmate currently confined within the Gregg County 

Jail proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. 

§ 1983. The cause of action was referred to the undersigned United States Magistrate Judge for 

findings of fact, conclusions of law, and recommendations for the disposition of the case. 

For reasons explained below, the Court recommends that Plaintiff’s lawsuit be dismissed, 

with prejudice, for the failure to state a claim upon which relief may be granted. 

I. Peterson’s Amended Complaint

Peterson’s amended complaint, (Dkt. #7), is the operative pleading in this lawsuit. An 

amended complaint entirely supersedes and takes the place of the original pleading. Clark v. 

Tarrant County, Tex., 798 F.2d 736, 740 (5th Cir. 1986). He sues the Gregg County Sheriff’s 

Office—claiming that it opened and held “all mail for past 3 years,” (Dkt. #7, pg. 3). Specifically, 

Peterson maintains that he has been incarcerated since October 2020 and has “seen both the North 

and South Jails” gave his legal mail to other inmates—which is how “others know about all [his] 

legal documents as well.” 

He also states that the Office is “holding” mail “at days, weeks at a time”; Peterson insists 

that it is “not hard to do the math on how long it takes the mail to get here just from the postal 

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stamp date till the time/date we get it handed to us.” Id. at pg. 6. Peterson further asserts that the 

mail is timely “sometimes,” but “90% of the time they will hold both the legal and the church mail 

up to 4 months from the date stamped by the U.S. Postal Service.” Id. He also states that he has 

had to tell family members that he has only received one letter from two years ago. Peterson seeks 

$10,000 in damages or a dismissal of his charges in Gregg County. 

II. Legal Standards

Under 28 U.S.C. § 1915A, a court shall review any complaint in a civil action wherein a 

prisoner seeks redress from a governmental entity or officer, or employee of a governmental entity. 

During its review, the court must identify cognizable claims or dismiss the complaint or any 

portion thereof if the complaint is frivolous, malicious, or fails to state a claim upon which relief 

may be granted. See 28 U.S.C. § 1915A(b)(1). 

A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke, 562 

F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable basis 

in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon which 

a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d 153, 156 

(5th Cir. 1999) (internal quotation marks omitted)). 

Moreover, a complaint fails to state a claim upon which relief may be granted where it does 

not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus 

does not raise a right to relief above the speculative level. See Montoya v, FedEx Ground 

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows 

the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See 

Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 

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556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; rather, 

the plausibility standard requires more than the mere possibility that the defendant has acted 

unlawfully. Twombly, 550 U.S. at 556 (emphasis supplied). 

Although all well-pleaded facts are taken as true, the district court need not accept true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. 

Coffin, 496 F. App’x 414 (5th Cir. Nov. 7, 2012) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 

696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed factual 

allegations,” the rule does “demand more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint 

which provides only naked assertions that are devoid of further factual enhancement. Id.

III. Discussion and Analysis

The Court understands that Peterson alleges that Defendant Gregg County Sheriff’s Office

violated his constitutional right to access the court by holding and opening his mail. Inmates have 

the constitutional right to access legal materials, and jail officials may not deny inmates access to 

courts. See Clewis v. Hirsch, 700 F. App’x 347, 348 (5th Cir. 2017) (citing Bounds v. Smith, 430 

U.S. 817, 821 (1977)). The Supreme Court has stated that the right encompasses no more than the 

ability of an inmate to prepare and transmit a necessary legal document to the court. Id. (citing

Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (internal quotations and footnote omitted)); 

see also Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (explaining that the right 

“encompasses only a reasonably adequate opportunity to file nonfrivolous legal claims challenging 

their convictions or conditions of confinement.”). 

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However, inmates must demonstrate an actual injury to demonstrate a violation of this 

right. Lewis, 518 U.S. at 351; see also Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) 

(explaining that the Supreme Court, in Lewis, “held that an inmate alleging denial of access to 

courts must demonstrate an actual injury stemming from defendants’ unconstitutional conduct.”). 

Similarly, a plaintiff claiming a denial of access to courts through mail tampering must show that 

his legal position has been prejudiced by the alleged mail tampering. See Walker v. Navarro Cnty. 

Jail, 4 F.3d 410, 413 (5th Cir. 1993). 

When examining whether a plaintiff has experienced “actual injury,” the Supreme Court 

has provided examples of circumstances that might show a denial of access to court:

[The prisoner] might show, for example, that a complaint he prepared was dismissed for 

failure to satisfy some technical requirement which, because of deficiencies in the prison’s 

legal assistance facilities, he could not have known. Or that he had suffered some arguably 

actionable harm that he wished to bring before the courts, but was so stymied by 

inadequacies of the law library that he was unable even to file a complaint.

Lewis, 518 U.S. at 351; see also McIntosh v. Thompson, 463 F. App’x 259, 260-61 (5th Cir. 2012) 

(unpublished) (“Even if McIntosh’s constitutional rights had been restricted, he failed to allege 

sufficiently that he suffered an injury in fact, which is required to state a claim for denial of 

meaningful access to courts.”). 

Importantly, the question is whether the plaintiff’s “position as a litigant was prejudiced” 

as a direct result of the alleged denial. See, e.g., Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 

1996) (reasoning that “if Eason was pursuing a legal action which necessitated his use of the law 

library and access to the library was denied, this deprivation could represent a violation of his 

constitutional rights.”); Torres v. Bullock, 2021 WL 2451326, at *4 (S.D. Tex. Apr. 6, 2021) (“In 

particular, to succeed on a claim of denial of access to courts, a plaintiff must show that he lost an 

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actionable or nonfrivolous claim or was prevented from presenting such a claim because of the 

alleged denial.”). 

The Fifth Circuit explained that “[d]enial of access claims take one of two forms: forwardlooking claims alleging ‘that systemic official action frustrates a plaintiff or plaintiff class in 

preparing and filing suits at the present time,’ and backward-looking claims alleging that an official 

has ‘caused the loss or inadequate settlement of a meritorious case, the loss of an opportunity to 

sue, or the loss of an opportunity to seek some particular order of relief.’” See Waller v. Hanlon, 

922 F.3d 590, 601 (5th Cir. 2019) (quoting Christopher v. Harbury, 536 U.S. 403, 417-18 (2002)). 

Here, Peterson fails to show actual injury—namely, that his legal position was prejudiced 

by the alleged mail delay. See Walker v. Navarro Cnty. Jail, 4 F.3d 410, 413 (5th Cir. 1993). While 

he complains that the Gregg County Sheriff’s Office opens and holds his mail, he provides no 

specifics whatsoever. He fails to identify a specific piece of mail that was allegedly opened and/or 

held—and, more importantly, fails to explain how he was harmed. Merely stating that mail is held 

and that it is “not hard to do the math,” without more, is insufficient to establish actual injury. See 

Vinson v. Heckmann, 940 F.2d 114, 115 (5th Cir. 1991) (explaining that in order to state a civil 

rights claim cognizable under section 1983, a plaintiff must allege facts to support his broad 

allegations). 

Similarly, with respect to his family letters, Peterson merely states that he has only received 

one letter “from over two years ago.” His allegations are devoid of specifics—which wholly fail 

to establish a connection to the named Defendant. In other words, Peterson’s conclusory 

allegations do not demonstrate a constitutional violation. See R.A.M. Al-Raid v. Ingle, 69 F.3d 28, 

32 (5th Cir. 1995). His lawsuit should be dismissed. 

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Peterson’s lawsuit suffers an additional fundamental flaw: The Gregg County Sheriff’s 

Office lacks jural existence. Under the Federal Rules of Civil Procedure, a party to a lawsuit must 

have the capacity to be sued. Fed. R. Civ. P. 17(b). A department of a local government entity

must “enjoy a separate legal existence” to be subject to a lawsuit. See Darby v. Pasadena Police 

Dep’t., 939 F.2d 311, 313 (5th Cir. 1991). 

The Fifth Circuit has held that Texas law does not allow county or municipal police 

departments to be sued directly. Id. at 313-14; see also Crull v. City of New Braunfels, Tex., 267 

F. App’x 338, 341-42 (5th Cir. 2008) (unpublished) (“Therefore, the Police Department is not a 

separate legal entity apart from the City and the district court did not err in dismissing the claims 

against the Police Department.”). 

Accordingly, Peterson’s claims against the Gregg County Sheriff’s Office should be 

dismissed. See Darby, 939 F.2d at 313; see also Pogorzelski v. Dallas Police Dep’t, 2020 WL 

5045673 *2 (N.D. Tex. Aug. 5, 2020 (“As judges of this Court have repeatedly recognized, the 

Dallas Police Department is not a jural entity subject to suit.”); Lane v. Athens Police Dep’t., 2006 

WL 1049966 at *3 (E.D. Tex. Mar. 24, 2006 (“While he does sue the Henderson County Jail, the 

jail is not a separate legal entity and cannot be sued in its own name.”). Peterson has failed to state 

a claim upon which relief may be granted, and his lawsuit should be dismissed. This dismissal 

would constitute a strike under the Prison Litigation Reform Act pursuant to 28 U.S.C. § 1915(g).

RECOMMENDATION

It is therefore recommended that Plaintiff Peterson’s lawsuit be dismissed, with prejudice, 

for the failure to state a claim upon which relief may be granted. 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

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A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). 

So ORDERED and SIGNED this 31st day of October, 2023.

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