IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50629

Summary Calendar

LEE SCOTT CLEMONS,

Plaintiff-Appellant

v.

CAROL E. MONROE, Assistant Warden, John B. Connally Unit; TERESA G.

BATES, Mailroom Supervisor, John B. Connally Unit; JENNIFER SMITH,

Program Specialist, Huntsville Grievance Department; JOHN DOE #1, known

as 106N4 to Plaintiff, Step 2 Grievance Investigator, Huntsville Grievance

Department; VANESSA C. OCANAS, Clerk II, John B. Connally Unit; CARMEN

M. RIVAS, Clerk II, John B. Connally Unit; MICHELLE E. SMART, Clerk II,

John B. Connally Unit; DEBBIE D. STRAIT, Administrative Assistant I, John

B. Connally Unit,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:10-CV-290

Before GARWOOD, DAVIS and OWEN, Circuit Judges.

PER CURIAM:

*

Lee Scott Clemons, Texas prisoner # 1480501, appeals the district court’s

dismissal of his pro se 42 U.S.C. § 1983 civil rights complaint as frivolous and for

failure to state a claim for relief pursuant to 28 U.S.C. § 1915A(b)(1) and (2).

United States Court of Appeals

Fifth Circuit

F I L E D

April 18, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR.R. 47.5, the court has determined that this opinion should not be published and *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

Case: 10-50629 Document: 00511449345 Page: 1 Date Filed: 04/18/2011
Clemons alleged that prison officials at the John B. Connally Unit in Kenedy,

Texas, where he is currently incarcerated, violated his constitutional right to

access to the courts by confiscating photographs that were included in the trial

record, which had been mailed to him by his attorney, on the grounds that the

photographs were sexually explicit. He also alleged that some of the defendants

failed to adequately resolve his complaints regarding the incident.

A prisoner’s civil rights complaint may be dismissed at any time if it is

frivolous or fails to state a claim on which relief can be granted. See 28 U.S.C.

§ 1915(e)(2)(B); § 1915A; 42 U.S.C. § 1997e(c)(1). Because the district court

dismissed the complaint both as frivolous and for failure to state a claim, the

dismissal is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.

2005).

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Clemons contends that the censorship of his clearly marked legal mail

outside of his presence violated his constitutional right of access to the courts

and that the defendants were not entitled to qualified immunity because their

actions were outside the scope of their duties under Texas Department of

Criminal Justice (TDCJ) policies. He further contends that the photographs

The magistrate judge on April 27, 2010, sua sponte ordered that the complaint failed to state a claim

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and was frivolous on the grounds, inter alia, herein noted, and would be dismissed if Clemons did not within

21 days file an amended complaint curing the deficiencies. On May 17, 2010, Clemons mailed for filing his

“Memorandum of Law in Support of the Plaintiff’s Complaint.” On June 2, 2010, the district judge entered

an order dismissing the complaint with prejudice, generally for the same reasons as stated in the magistrate

judge’s April 27 order. On June 2, 2010, the district judge entered judgment dismissing the cause with

prejudice as frivolous and for failure to state a claim and because monetary relief was sought from immune

defendants. On June 4, 2010, the Clerk’s Office received and filed plaintiff’s “Amendment/Supplemental

Response to Order to Show Cause,” which did not seek to amend the original complaint or add to it factual

allegations, but merely argued that the original complaint legally sufficed to state a claim. On June 25, 2010,

plaintiff mailed for filing his Rule 59(e) “Motion To Alter Or Amend Judgment,” which motion was filed

June 30, 2010. Likewise on June 25, 2010, plaintiff mailed for filing his notice of appeal “from the Order

of Dismissal filed in the court on June 2, 2010,” such notice of appeal being filed June 30, 2010. By order

signed and entered July 12, 2010, the district court denied the said Motion To Alter Or Amend The

Judgment. Plaintiff has not filed a notice of appeal from the July 12, 2010 order.

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themselves were not pornographic but were closeups of the alleged injuries to

the minor victim’s genitalia, which would not result in his sexual gratification,

and that the district court should not have accepted the TDCJ’s finding that the

photographs were sexually explicit without first viewing the photographs.

Sexually explicit material, though not legally obscene, may constitute

contraband in the prison context. See Thompson v. Patteson, 985 F.2d 202, 205-

06 (5th Cir. 1993).

The opening of incoming legal mail outside an inmate’s presence for the

purpose of inspecting for contraband does not violate a prisoner’s constitutional

rights. Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993). Thus, insofar as

Clemons asserts that his constitutional rights were violated when the mail

clerks opened and inspected his legal mail outside of his presence, this assertion,

alone, is insufficient to state a claim for relief, as the district court concluded.

Further, although interference with prison mail that prevents an inmate

from “prepar[ing] and transmit[ting] a necessary legal document to a court” does

violate an inmate’s constitutionally protected right of access to the courts, see id.

at 825-26, Clemons has failed to demonstrate an actual legal injury stemming

from the defendants’ unconstitutional conduct, that is, he has failed to

demonstrate that he was prevented from raising a meritorious legal issue. See

Lewis v. Casey, 518 U.S. 343, 351-52, 116 S.Ct. 2174, 2180-81 (1996).

Clemons has failed to demonstrate that the district court erred in

dismissing his civil rights complaint pursuant to § 1915A(b)(1). Accordingly, the

judgment of the district court is AFFIRMED.

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Case: 10-50629 Document: 00511449345 Page: 3 Date Filed: 04/18/2011