FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 12, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

------------------------------------

No. 06-12579

Non-Argument Calendar

--------------------------------------

D.C. Docket No. 04-00389-CV-4-MMP-AK

R. CASPER ADAMSON,

 Plaintiff-Appellant, 

versus

JAMES MCDONOUGH,

Secretary, Department of Corrections,

R. E. BARRY, 

S. BRUNT,

OLESTER DICKENS,

JACKIE ADAMS,

UNKNOWN MAILROOM OFFICER 2,

UNKNOWN MAILROOM OFFICER 1,

 Defendants-Appellees. 

------------------------------------------

Appeal from the United States District Court 

for the Northern District of Florida 

-------------------------------------------

(December 12, 2007)

Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.
 Although it appears that the Secretary has been served with process in this case, the record does

1

not reveal whether the other Defendants were properly served process.

2

PER CURIAM:

Plaintiff-Appellant R. Casper Adamson, a Florida prisoner proceeding pro

se, appeals the district court’s dismissal pursuant to Fed.R.Civ.P. 12(b)(6) of his

42 U.S.C. § 1983 complaint against the Secretary of the Florida Department of

Corrections (the “Secretary”), grievance officers with the Florida Department of

Corrections, and prison officials (collectively the “Defendants”). Reversible error 1

has been shown; we vacate and remand for further proceedings.

In his complaint, Adamson -- who asserted that he is “a converted Southern

Baptist” -- alleged that prison officials refused to mail thirteen letters that he

attempted to send to Baptist churches and ministers to request “prayer partners and

religious pen pals.” He contended that Defendants violated his First Amendment

right to freedom of religion and freedom of speech by enforcing a provision of the

Florida Administrative Code -- which prohibits the use of “correspondence

privileges to solicit or otherwise commercially advertise for money, goods or

services” and “includes advertising for pen pals,” see Fla. Admin. Code Ann. r.

33-210.101(9) (the “Rule”) -- in refusing to mail his letters requesting prayer
 Adamson’s complaint also alleged that Defendants’ refusal to mail his prayer-partner letters 2

infringed on his “right to marry, by preventing him from looking for a girlfriend and fiancée” and

that Defendants violated the Constitution in rejecting 50 pen pal addresses that he purchased from

“Soulmates.” But Adamson does not raise these claims on appeal; they are abandoned. See Horsley

v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002) (explaining that pro se appellant abandons issue

not argued in initial brief).

3

partners. In addition, Adamson alleged that the Rule was enacted without 2

statutory authority.

 On appeal, Adamson challenges the district court’s decision to dismiss his

complaint after concluding that the interception of Adamson’s outgoing mail

pursuant to the Rule was constitutional. Relying on the Supreme Court’s decision

in Procunier v. Martinez, 94 S.Ct. 1800, 1811 (1974), the district court first

considered whether the Rule furthered an “an important or substantial

governmental interest unrelated to the suppression of expression.” After

identifying the underlying governmental interest as “security and the prevention of

inmate fraud and harassment of the unwitting public that has resulted in money

order scams and other criminal activities,” the district court explained that the

Rule did not restrict Adamson’s First Amendment freedoms more than necessary

to protect the governmental interest. The district court therefore concluded that

application of the Rule in this case did not violate Adamson’s freedom of speech. 

The district court also dismissed Adamson’s claim that enforcement of the Rule

violated his free exercise of religion because Adamson had not shown a
 In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d 3

1262, 1263 (11th Cir. 1998). 

4

fundamental interest “to be protected or weighed against the security concerns of

the prison.”

We review de novo a district court’s dismissal for failure to state a claim

pursuant to Rule 12(b)(6). Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir.

2004). “Under [Fed.R.Civ.P.] 12(b)(6), whether a plaintiff failed to state a claim

upon which relief can be granted must be ascertained from the face of the

complaint.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1266 n.11

(11th Cir. 1997). A complaint should not be dismissed pursuant to Rule 12(b)(6)

“unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim.” Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir.

1998) (internal quotation omitted). And “[w]e accept the facts of the complaint as

true and view them in the light most favorable to the nonmoving party.” Magluta, 3

375 F.3d at 1273.

Here, the record does not show that -- at the early stage of this litigation

before the district court -- the parties offered argument or cited authority on the

governmental interest behind the Rule or the security concerns protected by

application of the Rule. Indeed the Secretary’s motion to dismiss Adamson’s
 We briefly address Adamson’s remaining arguments. We are unpersuaded by his assertion that 4

he has stated a claim that the Rule is an invalid exercise of legislative authority. As the district court

discussed, the Florida Department of Corrections has statutory authority pursuant to Fl. Stat. §

944.09(1)(g) to adopt rules about “[m]ail to and from the state correctional system.” In addition, to

the extent that Adamson raises -- for the first time -- arguments about the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., we do not address these claims. See

Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (“[W]e have repeatedly held that an issue not

raised in the district court and raised for the first time in an appeal will not be considered by this

court.”) (internal quotation omitted). And we see no reversible error in the district court’s decision

to construe Adamson’s motion for summary judgment -- which was filed while the district court was

considering the Secretary’s motion to dismiss Adamson’s complaint and to which Adamson attached

no affidavits, testimony, or other exhibits -- as a supplemental response byAdamson to the dismissal

motion. See Am. Postal Workers Union v. U.S. Postal Serv., 823 F.2d 466, 478 (11th Cir. 1987)

(explaining that “Appellee filed no affidavits or testimony in support of its purported summary

judgment motion” and that “[m]erely applying the label ‘motion for summary judgment’ to a

pleading does not make it one”). 

5

complaint provides no explanation of the reason for the Rule. But the district

court, relying on authorities from jurisdictions other than Florida, dismissed

Adamson’s complaint after identifying what it perceived to be the governmental

interest served by the Rule. Although the district court’s ultimate conclusion may

prove correct, its analysis -- which proceeded without the benefit of discussion of

the Rule’s purpose by the parties or authority explaining the Rule in Florida --

appears to be premature in the context of a Rule 12(b)(6) motion. For that reason,

we cannot say that Adamson can prove no set of facts in support of his First

Amendment claims. See Beck, 144 F.3d at 735. Therefore, we vacate the district

court’s order dismissing Adamson’s complaint and remand for further

proceedings.4

VACATED AND REMANDED.