United States Court of Appeals

Fifth Circuit

FILED

May 3, 2005

Charles R. Fulbruge III

Clerk

REVISED MAY 5, 2005

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-10623

Summary Calendar

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RICHARD TERRANCE AYERS,

Plaintiff-Appellant,

VERSUS

JERRY PETERSON,

DIRECTOR-TDCJ-ID; ET AL.,

Defendants,

GARY JOHNSON; LINDA PATTESON; MICHAEL COUNTZ; JIM ZELLER;

ROBERT OTT; WINSTON HOLD; MELTON BROCK;

HERMAN TEINERT; L.N. HODGES; RICHARD DEAL; JUDY SLOAN,

Defendants-Appellees

_________________________

Appeal from the United States District Court

for the Northern District of Texas

1:99-CV-11

______________________________
2
3

Before DAVIS, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Texasstate prisoner Richard Ayers appeals

a summary judgment in this action brought

under 42 U.S.C. § 1983 in which he alleges

that his First Amendment rights have been

unconstitutionallyinfringed byprisonofficials’

pret extual refusals to allow him access to

certain literature that has been mailed to him.

Although summary judgment was proper asto

certain materials, the district court erred in

denying Ayers’s previously-filed motions for

leave to amend his complaint and for leave to

supplement the appendices to his brief in

opposition to summary judgment. Accordingly, we affirm in part and reverse in part.

I.

On January 14, 1999, Ayers sued Jerry Peterson, who was the director of the Texas

Department ofCriminalJustice (“TDCJ”), and

members of the Director’s Review Committee

(“DRC”). According to Ayers, the defendants

had deprived him of his First Amendment

rights by denying him access to certain

publicationsSSi.e., TheNiggerBible,2an essay

on slavery, and the June/Summer 1998 issue of

the Graterfriends Newsletter. On October 10,

2000, Ayers amended his complaint to name as

defendants the new TDCJ director, Gary

Johnson; Linda Patteson, a member of the

MailSystemCoordinator’s Panel;sevenmembers ofthe DRC, and two mailroomemployees

at the Robertson Unit. The amended complaintseeksinjunctive relief and compensatory

and punitive damages.3

In October 2001, the district court

dismissed the suit as frivolous. The following

May, however, a panel of this court reversed

and remanded, holding that dismissal was

premature because the court had not examined

the materials in question. Ayers v. Peterson,

No. 01-11554 (5th Cir. 2002) (unpublished).

On remand, defendants provided the court

with copies of the challenged publications for

itsreview, in camera, and moved forsummary

judgment. Before the court had ruled on the

summary judgment motion, however, Ayers

sought once again to amend his complaint to

add claims relating to the allegedly pretextual

denials of three other publications4he sought

to receive. At the time of Ayers’s motion,

none of the defendants had been served with

or answered the complaint. Ayers’s motion

was denied; the district court stated that “the

denials [of access about which Ayers seeks to

* 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.

2

 Referred to hereinafter as “The N . . . Bible.”

3 Ayers later agreed to dismiss any claims for

damages against defendants in their official capacity because those claims would be barred by the

Eleventh Amendment. See Aguilar v. Tex. Dep’t

of Criminal Justice, 160 F.3d 1052, 1054 (5thCir.

1998) (“[A]s an instrumentality of the state,

TDCJ-ID is immune from [] suit on Eleventh

Amendment grounds.”). To the extent that Ayers

claims damages from the defendants personally,

qualified immunity arguably would protect them.

Because he cannot establish a constitutional violation, however, we do not reach the qualified immunity question.

4 These publications include The Vulture and

the Nigger Factory, Walking on Borrowed Land,

and a copy of Volume 10 #4 of the magazine,

Justice Xpress.
4

complain] in 2001 were prior to this Court’s

dismissal of Plaintiff’s Amended Complaint.”

Also before the district court ruled on

summary judgment, Ayers sought leave to

supplement the appendices to his brief in

oppositionto summary judgment. Specifically,

he tried to comply with Federal Rule of Civil

Procedure 56(e), which requires that all summary judgment evidence be attested to as

authentic. The district court did not specifically addressthat motion but noted in its order

granting summary judgment that all pending

motions were denied.

With respect to the motion for summary

judgment, the court held that Ayers had suffered no constitutional injury, so his suit

should be dismissed. The court found that the

publications in question were rejected in pursuit of a legitimate penological objective,

because they advocated racial violence or

otherwise threatened to the overallsecurity of

inmates and prison employees.

II.

Ayers asserts three issues on appeal:

(1) that the district court erred in denying him

leave to amend his complaint; (2) that the

court erred in not allowing him to supplement

the appendices to his brief in opposition to

summary judgment; and (3) that summary

judgment was inappropriate because there

were unresolved questions of material fact.

We address each, in turn.

A.

The denial of leave to amend pursuant to

FederalRule ofCivil Procedure 15 isreviewed

for abuse of discretion. Lowrey v. Texas A &

M Univ. Sys., 117 F.3d 242, 245 (5th Cir.

1997). Nevertheless, that discretion is not

unbounded: 

In the absence of any apparent or declared reasonSSsuch as undue delay, bad

faith or dilatory motive on the part of

the movant, repeated failure to cure

deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment,

etc.SSthe leave sought should, as the

rules require, be “freely given.” 

Id. (quoting FED. R. CIV. P. 15(a)). “Outright

refusalto grant the leave without anyjustifying

reason appearing for the denial is not an exercise of discretion.” Foman v. Davis, 371 U.S.

178, 181 (1962).

B.

The district court’s only explanation for

denying amendment was that “the denials in

2001 [o f the materials the denial of which

Ayers seeks to add to his complaint] were

prior to this Court’s dismissal of Plaintiff’s

Amended Complaint.” We do not see the

relevance of that fact. At the time of the

district court’s initial dismissal of this suit

(which we reversed on appeal), no defendant

had answered or even been served with the

complaint. Further, as the district court noted,

one of the alleged denials had not yet occurred

at the time of the initial dismissal. We cannot

see how justice or judicial economy is served

by denying leave to amend on the district

court’s rationale.

Nevertheless, we may affirm for any reason

supported by the record, even if not relied on

by the district court. See LLEH, Inc. v.

Witchita County, Tex., 289 F.3d 358, 364 (5th

Cir. 2002). It is therefore possible that, in

light of the court’s later decision to grant

summaryjudgment, it considered the proposed

amendment to be futile. That is, the district

court could have concluded that just as it
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believed the original three denialsto be constitutional, the additional complaints were

equally so.

Unfortunately, none of the materials that

are subject to the denials about which Ayers

seeks to amend his complaint to reflect is

present in the record. As we said when this

case was last before this court, it would be

premature for a district court to dismiss this

suit without having examined the materials.

Ayers, No. 01-11554, at 3-4. The denial of

leave to amend, therefore, cannot be properly

affirmed on the basis that the amendment

would be futile. Because we are unable to

discern any other legitimate justification for

the denial, we must reverse. Even though we

affirm the grant of summary judgment on

Ayers’s remaining claims (see part IV.B.,

infra), we must remand for consideration of

the claims Ayers wished to add by amendment.

III.

As we explained above, Ayerssought leave

to supplement the appendices to his brief in

opposition to summary judgment to comply

with rule 56(e). Such decisions are reviewed

for abuse of discretion. See Barker v. Norman, 651 F.2d 1107, 1128-29 (5th Cir. Unit A

July 1981). Specifically, it can constitute an

abuse of discretion where a district court fails

to afford a party the opportunity to remedy

obvious defects in his summary judgment

materials. See id.

Neitherthe defendants nor the district court

challenged the authenticityofthe documentsin

Ayers’s appendices. As a result, if the district

court’s failure to allow Ayers to supplement

the appendices constituted error, it was entirely harmless, and reversing would have no

effect on the result.

IV.

Ayers contends that it was error to grant

summary judgment. He contends that genuine

issues of material fact remain.

A.

We review a summary judgment de novo

and are bound by the same standards as those

employed by the district court. See Chaplin v.

NationsCredit Corp., 307 F.3d 368, 371 (5th

Cir. 2002). Summary judgment is appropriate

only where “‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ when

viewed in the light most favorable to the

non-movant, ‘show that there is no genuine

issue as to any materialfact.’” TIG Ins. Co. v.

Sedgwick James, 276 F.3d 754, 759 (5th Cir.

2002) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986)). Once the

moving party has demonstrated that the

non-moving party has no evidence such that a

reasonable jury could support a verdict in its

favor, the non-moving party must put forth

specific facts that demonstrate a genuine

factual issue for trial. Brennan v. Mercedes

Benz USA, 388 F.3d 133, 135 (5th Cir. 2004).

B.

Ayers alleges violations of his First Amendment rights by the denial of his ability to receive the challenged publications. Although

prison inmates do not shed all of their constitutional protections by virtue of their confinement, such rights may be circumscribed to

further legitimate penological objectives.

Specifically, “a prison inmate retains those

First Amendment rights that are not inconsistent with his status as a prisoner or with the

legitimate penologicalobjectives ofthe corrections system.” Pell v. Procunier, 417 U.S.

817, 822 (1974). Consequently, when reviewing a prison policy that restricts the flow of
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publications to prisoners, we ask whether that

policy is “reasonably related to legitimate

penological interests.” Thornburgh v. Abbott,

490 U.S. 401, 404 (1989).

Defendants claim that the challenged materials were withheld pursuant to prison policy

because theywould create an increased danger

of physical harm to prisoners and prison employees or contain material of a raciallyinflammatory manner that would encourage disruptions such as strikes or riots. To determine

whether such a proffered justification is sufficient to withstand constitutional scrutiny, we

ordinarily would engage in the four-factor

analysis in Turner v. Safley, 482 U.S. 78, 89

(1987). Under Turner, however, restrictions

onmaterials deemed likelyto produce violence

are permissible because they are rationally

related to valid penological objectives. See

Chirceol v. Phillips, 169 F.3d 313, 316-17

(1999). Included in the materials that can be

rightfully excluded as tending to promote

violence are those that promote racial or

religious hatred. See id.

Furthermore, Ayers is not making a facial

challenge to the policy; instead, he contends

that the regulation has been unconstitutionally

applied in his case because prison officials

have denied him access to the materials he

desires under the pretext that they promote

violence and racial discord. Although the

question of the facial constitutionality of such

restrictionsis one oflaw, the application ofthe

restriction in individual cases necessarily

involves questions of fact. See Rooks v.

Zavares, No. Civ.A. 99-B-631, 2001 WL

34047959, *10 (D. Colo. Jan. 25, 2001). To

defeat summary judgment, therefore, Ayers

must demonstrate that a genuine issue of

material fact remains for trial.

Afterreviewing the challenged material, the

district court found, and we agree, that the

publications were well within the realm of

material that may be restricted because oftheir

potential to cause violence. The portion of the

June 1998 issue ofthe Graterfriends Newsletter that was withheld from Ayers contained

racial epithets. According to prison officials’

expert judgment, to which we are required to

give great deference,5the presence of such

material tends to encourage racial hatred and

violence, so it is necessary to keep it out of the

prison to maintain safety and discipline. 

Similarly, the essay on slavery titled “How

to keep a Black man down: From one White

slave owner to another” discussed subjugating

black slaves and even included a discussion of

cross-breading “horses and niggers.” There

can be no doubt that the publication speaksfor

itself as to whether it contains material that

could promote racial hatred and violence. The

N . . . Bible is no less inflammatory. It uses

the racial epithet of its title on nearly every

page of the book; discusses killing to gratify

sexual desires; blames whites for infecting

Africans with syphilis; and categorizes Caucasians as the problem of the Black people. 

These publications, coupled with the prison

officials’ expert judgment, represent such

strong evidence that the publications can be

constitutionallyexcluded that it is veryunlikely

that any amount of countervailing evidence

could allow a reasonable fact-finder to conclude otherwise. Nevertheless, we examine

the evidence submitted by Ayers to ascertain

whether a sufficient quantum of evidence is

present to demonstrate a genuine issue of

material fact for trial. 

5

See O’Lone v. Estate of Shabazz, 482 U.S.

342, 349 (1987); Oliver v. Scott, 276 F.3d 736,

745 (5th Cir. 2002).
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The only evidence Ayerssubmitsthat could

plausibly refute the evidence discussed above

is the copies of other allegedly racially inflammatory materials that are present in the prison

library. According to Ayers, the presence of

these materials belies the prison officials’

argument that the challenged publications have

been excluded because oftheirraciallyantagonistic character, and consequently, he reasons,

there is a genuine issue of material fact. These

available materials include a passage from I

Know Why the Caged Bird Sings, by Maya

Angelou, that uses the same racial epithet that

is replete in The N . . . Bible; and excerpts

fromThe BlackPowerImperative that discuss,

inter alia, Dred Scott v. Sandford, 60 U.S.

393, 407 (1856) (stating that “[blacks] are

beings of an inferior order . . .”).

Ayers’s attempt to demonstrate a genuine

issue of material fact using these materials

fails. The materials in question are wholly

distinguishable from those he was denied.

Comparing the use of a reviled racial epithet in

The N . . . Bible with the book of a Pulitzer

Prize and National Book Award nominee who

is renowned for her civil rights work is like

equating “chalk and cheese.” Blakeley v.

Washington, 542 U.S. ___, 142 S. Ct. 2531,

2537 n.5 (2004) (Scalia, J.). It is equally

inapposite to compare the essay on slavery

that Ayers seeks (a document reminiscent of

the propagandistic and anti-Semitic Protocols

of the Elders of Zion) with Dred Scott. 

Although all of the aforementioned documents involve race relations, no rational trier

of fact could deem them sufficiently similar as

to undercut the defendants’ judgment that the

challenged publications are likely to foment

racial violence. This conclusion is especially

inevitable in light of the substantial deference

we afford to the expert judgment of prison

officials. See O’Lone, 482 U.S. at 349; Oliver, 276 F.3d at 745.

The judgment is AFFIRMED in part, REVERSED in part; and REMANDED for consideration of the claims Ayers sought to bring

in his second amended complaint.