IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41518

Summary Calendar

ROBERT DANIEL KEYS,

Plaintiff-Appellant

v.

CORRECTION OFFICER II CANDACE TORRES; CLERK 3 KIESHA 

COLLINS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE –

INSTITUTIONAL DIVISION; WARDEN RICHARD CRITES; DAVID DIAZ; 

CARROL MONROE; JENNIFER SMITH; TEXAS BOARD OF CRIMINAL 

JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE DIRECTOR’S 

REVIEW COMMITTEE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE 

MAILROOM SYSTEM COORDINATOR’S PANEL; WILLIAM STEPHENS,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:12-CV-350

Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 19, 2018

Lyle W. Cayce

Clerk

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Robert Daniel Keys, Texas prisoner # 873144, appeals the summary 

judgment dismissal of his 42 U.S.C. § 1983 complaint.1 Keys filed a § 1983 

complaint against numerous Texas Department of Criminal Justice employees 

and officials and alleged violations of his First Amendment and due process 

rights and attacked the constitutionality of TDCJ Board Policy 03.91,2 which 

is the TDCJ’s Uniform Offender Correspondence Rule. See Prison Legal News 

v. Livingston, 683 F.3d 201, 207 (5th Cir. 2012). The basic facts underlying 

Keys’s complaint are that pursuant to Policy 03.91 the defendants confiscated 

certain maps from his cell and denied receipt of numerous issues of Shotgun 

News magazine that Keys had ordered. 

Keys sued defendants Jennifer Smith, Kiesha Collins, Candice Torres, 

Carol Monroe, David Diaz, and Richard Crites in their individual capacities for 

nominal and punitive damages. He also sued those defendants along with

Williams Stephens, to the extent they were still employed by the TDCJ, in their 

official capacities for declaratory and injunctive relief. In their motion for 

summary judgment defendants asserted that Keys had failed to exhaust his 

administrative remedies as to his claims against defendants Diaz and Crites 

concerning the confiscation of his maps, failed to establish any violation of his

First Amendment rights as a result of the enactment and enforcement of Policy 

03.91, and failed to overcome the defendants’ entitlement to qualified 

immunity. The district court granted the motion. 

A district court’s grant of summary judgment is reviewed de novo. Prison 

Legal News, 683 F.3d at 211. Summary judgment is proper if the evidence 

 

1 Keys does not challenge, and therefore has abandoned any challenge to, the district 

court’s other rulings dismissing defendants and claims set forth in his complaints. See 

Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007); Yohey v. Collins, 985 F.2d 222, 224–25 

(5th Cir. 1993). 

2 At all relevant times, Policy 03.91 (2010) was in effect; in 2013, however, it was 

amended. See Policy 03.91 (rev. 2, 2010); Policy 03.91 (rev. 3, 2013).

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shows there is no genuine dispute as to a material fact and the movant is 

entitled to judgment as a matter of law. Id. (citing FED. R. CIV. P. 56(a)). We 

view the evidence in the light most favorable to the nonmoving party. Id.

I.

The record demonstrates that Keys failed to exhaust his claims that in 

December 2010 Diaz and Crites improperly confiscated his maps under Policy 

03.91. See Jones v. Bock, 549 U.S. 199, 211–12 (2007); Johnson v. Johnson, 

385 F.3d 503, 515 (5th Cir. 2004); Wright v. Hollingsworth, 260 F.3d 357, 358 

(5th Cir. 2001). His conclusional assertions to the contrary are belied by the 

record and are insufficient to satisfy his summary judgment burden. See

Prison Legal News, 683 F.3d at 211; Duffie v. United States, 600 F.3d 362, 371 

(5th Cir. 2010); Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). 

II.

Keys argues that Policy 03.91 is unconstitutional on its face and as 

applied to him. For his “as-applied” argument, Keys asserts that his First 

Amendment rights were violated when defendants denied him receipt of 

numerous issues of his Shotgun News magazine on the grounds that certain 

images were proscribed by Policy 03.91 because they described the 

manufacture of weapons. 

Prison mail regulations that restrict the flow of publications to an 

inmate, such as Policy 03.91, are analyzed under the reasonableness standard 

set forth in Turner v. Safley, 482 U.S. 78, 89 (1987). Thornburgh v. Abbott, 490 

U.S. 401, 413–14 (1989). In Turner, the Supreme Court held that a prison 

regulation that impinges on an inmate’s constitutional rights is “valid if it is 

reasonably related to legitimate penological interests.” 482 U.S. at 89; see also 

Thornburgh, 490 U.S. at 413–14. The Turner Court then set forth the following 

factors to consider when determining the reasonableness of the regulation at 

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issue: (1) whether there is “a ‘valid, rational connection’ between the prison 

regulation and the legitimate governmental interest put forward to justify it;” 

(2) “whether there are alternative means of exercising the right that remain 

open to prison inmates;” (3) what “is the impact accommodation of the asserted 

constitutional right will have on guards and other inmates, and on the 

allocation of prison resources generally;” and (4) whether there are “obvious, 

easy alternatives” to the regulation. 482 U.S. at 89–91. “Rationality is the 

controlling factor, and the remaining factors are best understood as indicators 

of rationality.” Prison Legal News, 683 F.3d at 214–15 (cleaned up). 

The inmate has the burden of demonstrating that there is no rational 

relation to a legitimate penological interest. See id. at 216; see also Overton v. 

Bazzetta, 539 U.S. 126, 132 (2003) (“The burden, moreover, is not on the State 

to prove the validity of prison regulations but on the prisoner to disprove it.”). 

Courts give considerable deference to the decisions of officials who regulate 

prison administration and operations. See Thornburgh, 490 U.S. at 407–09; 

Turner, 482 U.S. at 84–85, 89. 

Applying the Turner factors, Policy 03.91 is constitutional on its face and 

as applied to Keys. Policy 03.91, which provides in relevant part that a 

publication can be rejected due to content if it contains information regarding 

the manufacture of weapons, was promulgated to promote prison safety and 

security. Prison Legal News, 683 F.3d at 215–18. There is no question that 

the policy’s goal of promoting safety and security is a valid penological interest; 

the Supreme Court has expressly recognized that protecting prison security is

“central to all other corrections goals.” Thornburgh, 490 U.S. at 415 (internal 

quotation marks and citation omitted); see also Turner, 482 U.S. at 89–93; 

Prison Legal News, 683 F.3d at 215–18; Chriceol v. Phillips, 169 F.3d 313, 316 

(5th Cir. 1999). 

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Policy 03.91 is also facially neutral. Thornburgh, 490 U.S. at 415. The 

policy provides that a publication may be rejected due to content if it includes 

contraband; material written solely for the purpose of communicating 

information designed to achieve the breakdown of prisons; information 

concerning the manufacture of explosives, weapons, and drugs; material 

related to setting up and operating criminal schemes; or sexually explicit 

images. Because Policy 03.91 makes distinctions between publications based 

on potential implications for prison security, which are unrelated to the 

suppression of expression, the policy is “facially neutral in the relevant sense.” 

Prison Legal News, 683 F.3d at 215 (internal quotation marks and citation 

omitted); see Thornburgh, 490 U.S. at 415. Accordingly, Policy 03.91 is facially 

constitutional. 

With respect to Keys’s “as-applied” challenge, prison officials have 

determined that an inmate’s possession of a publication, such as Shotgun 

News, containing information regarding the manufacture of weapons poses a 

security threat for numerous reasons.3 There is no evidence that the exclusion 

of Shotgun News was arbitrary, irrational, or biased. See Prison Legal News, 

683 F.3d at 216, 220 n.8. In light of the deference given to the determinations 

of prison officials, which “must be at its zenith in the context of challenges to 

individualized decisions implementing a facially constitutional policy,” the 

rejection of Shotgun News was rationally related to the legitimate penological 

interest of maintaining prison safety and security. Id. at 221. So the first 

Turner factor is resolved in favor of the defendants. 

 

3 The only publication considered by this court with respect to Keys’s “as-applied” 

challenge is Shotgun News. The other publications and correspondence Keys mentions on 

appeal are not properly before us. See FED. R. CIV. P. 15(d); Longoria, 507 F.3d at 901; 

Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App.—Fort Worth 1997).

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The second Turner factor looks to whether there is an alternative means 

of exercising the asserted right that remains open. 482 U.S. at 90, 92. The 

right in question is construed “sensibly and expansively.” Thornburgh, 490 

U.S. at 417. The restriction here of Shotgun News does not prevent Keys from 

ordering other magazines or books that would be permissible under prison 

regulations. See Prison Legal News, 683 F.3d at 218. Policy 03.91 permits 

Keys to send, receive, and read countless other publications. See Thornburgh, 

490 U.S. at 417–18; Prison Legal News, 683 F.3d at 218–19. Because Keys has 

other means of exercising his rights, this factor also weighs in defendants’ 

favor. 

The third Turner factor is “the impact that accommodation of the 

asserted constitutional right will have on others (guards and inmates) in the 

prison.” Thornburgh, 490 U.S. at 418. The exclusion of Shotgun News is 

rationally related to prison safety and security; permitting the magazine could 

have a “ripple effect” on the security of other inmates and staff. Id.; Turner, 

482 U.S. at 90. Consequently, this factor too weighs in defendants’ favor. 

The fourth Turner factor looks to whether the prison has an easy 

alternative that will accommodate the prisoner’s rights at a de minimis cost to 

the valid penological interest. 482 U.S. at 90–91. Keys’s proposed alternative 

to the all-or-nothing rule of Policy 03.91 is the so-called clip rule. Under the 

clip rule, the rejected portions of a publication are removed while the rest of it 

is sent to the inmate. See Thornburgh, 490 U.S. at 418–19. But the clip rule 

has been rejected as a viable alternative by the Supreme Court. Id.; see also 

Prison Legal News, 683 F.3d at 218. This factor thus weighs in defendants’ 

favor. 

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Because the rejection of Shotgun News under Policy 03.91 was 

reasonably related to the legitimate penological interests of safety and 

security, Keys can show no First Amendment violation. See 482 U.S. at 89. 

III.

Keys also argues that the appeals process provided for under Policy 03.91 

violates due process. The purpose of due process is to “protect a substantive 

interest to which the individual has a legitimate claim of entitlement.” McFaul 

v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012) (internal quotation marks and 

citation omitted). As we have explained, Keys has not shown that the 

defendants violated a constitutionally protected interest that could form the 

basis of a due process claim.4 See id.

IV.

Qualified immunity affords government officials protection against 

individual liability for civil damages “insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable 

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 

(internal quotation marks and citation omitted). Keys has not shown a 

violation of either his First Amendment or due process rights. The defendants 

are therefore entitled to qualified immunity. See Brown v. Callahan, 623 F.3d 

249, 253 (5th Cir. 2010).

***

The district court’s judgment is AFFIRMED, and Keys’s motion to 

appoint counsel is DENIED as moot. 

 

4 The current version of Policy 03.91 provides an inmate with the opportunity on 

appeal to present arguments against the rejection of a publication. Policy 03.91 (rev. 3, 2013). 

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