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

_______________



### R ICHARD 

### T ERRANCE 

### A YERS



### ,

Plaintiff-Appellant,

VERSUS



### J ERRY 

### P ETERSON



### ,

D IRECTOR -TDCJ-ID; ET A L

.,



### Defendants,

G ARY 

### J OHNSON 

### ; L INDA 

### P ATTESON 

### ; M ICHAEL 

### C OUNTZ 

### ; J IM 

### Z ELLER 

### ;

R OBERT 

### O TT 

### ; W INSTON 

### H OLD 

### ; M ELTON 

### B ROCK 

### ;

H ERMAN 

### T EINERT 

### ; L.N. H ODGES 

### ; R ICHARD 

### D EAL 

### ; J UDY 

### S LOAN



### ,

Defendants-Appellees

_________________________

Appeal from the United States District Court

for the Northern District of Texas

1:99-CV-11

______________________________23

Before D AVIS

, S MITH , and D ENNIS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Texas state prisoner Richard Ayers appeals

a summary judgment in this action brought

under 42 U.S.C. § 1983 in which h e alleges

that his First Amendment rights ha ve been

unconstitutionally infringed by prison officials’

pret extual refusals to allow him access to

certain literature that has been mailed to him.

Although summary judgment was proper as to

certain materia l s, the district court erred in

de n ying 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 Pet erson, who was the director of the Texas

Department of Criminal Justice (“TDCJ”), and

members of the Director’s Review Committee

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

had deprived him

o f his First Amendment

r ights by denying him access to certa i n

publications 

### SS

i.e., The Nigger Bible, 2 an essay

on slavery, and the June/Summer 1998 issue of

the Graterfriends Newsletter

. On October 10,

2000, Ayers amended his complaint to name as

defendan t s the new TDCJ director, Gary

Johnson; Linda

Patteson, a member of the

Mail System Coordinator’s Panel; seven members of the DRC, and two mailroom employees

at the Robertson Unit. The amended complaint seeks injunctive relief and compensatory

and punitive damages. 3

I n October 2001, the district court

dismissed the suit as frivolous. The following

May, however, a panel of this court r eversed

and remanded, holding that dismi ssal was

premature because the court had not examined

the materials in question. A yers v. Peterson

, No. 01-11554 (5t h Cir. 2002) (unpublished).

On remand, defendants provided the court

with copies of the challenged publications for

its review, in camera

, and moved for summary

judgment. Before the court had rul ed on the

summary j udgment motion, however, Ayers

sought once again to amend his complaint to

add claims relating to the allegedly pretextual

denials of three other publications 4 he sought

to receive. At the t ime of Ayers’s motion,

none of the defendants had been serv ed with

or answered the complaint. Ayers’s mo tion

was denied; the district co urt stated that “the

denials [of access about which Ayers seeks to

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

and is not precedent exc ept under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

2 Referred to hereinafter as “ The N

. . . Bible. ” 3 Ayers later agreed to dismiss any cl aims 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 (5th Cir.

1998) (“[A]s an instrume n tality of the state,

TDCJ-ID is immune from [] suit on Eleventh

Amendment grounds.”). To the extent that Ayers

claims damages fro m the defendants personally,

qualified immunity arguably would prote ct them.

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

4 These publications include T he Vulture and

the Nigger Factory, Walking on Borrowed Land

, and a co py of Volume 10 #4 of the magazine,

Justice Xpress.4

complain] in

2001 were pri or to thi s Court’s

dismissal of Plaintiff’s Amended Complaint.”

Also before the district court ruled on

summar y judgment, Ayers sought leave to

supplement the append ices to his brief in

opposition to su mmary judgment . Specifically,

he tri ed t o comply with Federal Rule of Civil

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

a uthentic. The district court did not specifically address that 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 Ay ers had suff ered no constitutional injury, so his s uit

should be dismissed. The court found that the

publications in question were rejected in pursu it of a legitimate penological objective,

because they advocated racial violence or

otherwise threatened to the overall security of

inmates and prison employees.

II.

Ayers asserts th

ree 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 t here

were unresolved questions of material fact.

We address each, in turn.

A.

The denial of leave to amend pursuant to

Federal Rule of Civil Procedure 15 is reviewed

for abuse of discretion. Low rey v. Texas A &

M Univ. Sys.

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

1997). Nevert heless, that discretion is not

unbounded: In the absenc e of any apparent or declared reason 

### SS

such as undue delay, bad

faith or dilatory motiv e on the part of

the mov a nt, repeated failure to cure

deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of al lo wance of the

amendm ent, futility of amendment,

etc. 

### SS the leave sought should, as the

rules require, be “freely given.”

Id. (quoting F ED

. R. C IV

. P. 15(a)). “Outright

refusal to grant the leave without any just ifying

reason appearing for the denial is not an exercise of discretion.” F

oman v. Davis

, 371 U.S.

178, 181 (1962).

B.

The district court’s only explanation for

denying amendment was that “t he denials in

20 01 [o f the materials the denial of which

Ayers seeks to add to his complaint] were

prior to this Court’s dismissal o f Plaintiff’s

Amended Complaint.” We do not see the

relevance of that fact. At the time of the

dist rict 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 ser v ed

b y denying leave to amend on the distric t

court’s rationale.

Nevertheless, we may affirm for any reason

supported by the record, even if not relied on

by the distri ct court. S ee 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 decisio n to grant

summary judgment, it considered the proposed

amendment to be futile. That is, the district

court could have concluded that just as it5

believed the original three denials to be constitutiona l

, the additional complaints were

equally so.

Unf o rt unately, 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 fo r 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 amen d ment

would be futile. Because we are unable to

discern any other legitimate justificatio n for

the denial, we must reverse. Even though we

affirm the grant of summary judgment on

Ayers’s r e maining claims (s ee part IV.B.,

infra ), we must remand for co nsideration of

the claims Ayers wished to add by amendment.

III.

As we explained above, Ayers sought leave

to supplement the ap pendices to his brief in

opposition to summary j udgment to comply

with rule 56(e). Such decisions are reviewed

for abuse of discreti on. S ee Barker v. Norman, 651 F.2d 1107, 1128-29 (5th Cir. Unit A

July 1981). Specifically, it can const itute an

abuse of discretion where a district court fails

to aff o rd a party the opportuni ty to remedy

obvious defects in h is summary judgment

materials. See id.

Neither the defendants nor the district court

challenged the authenticity of the documents in

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

court’s fa i lure to allow Ayers to supplement

the appendices constitute d error, it was ent irely harmless, and reversing would have no

effect on the result. IV.

Ayers contends that i t 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. S ee Chaplin v.

NationsCredit Corp.

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

Cir. 2002). Summary judgment is appropriate

only where “‘the pleadings, depositions , answers to i nterrogator i es, and admissions on

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

vie wed in the light most favorable to the

n o n-movant, ‘show that there is no genuine

issue as to any material fact.’” T IG 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 p art y has demonstrated that the

non-moving party has no evidence such that a

reasonable jury could support a verdict in its

favor, the no n-moving party must put forth

specific facts that demonstrate a genuine

fac t ual issue for trial. B rennan v. Mercedes

Benz USA

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

B.

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

prison inmates do not shed all of their constitutional protecti ons by virtue of their confinement, such r ight s 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 wi th the

legitimate penological objectives of the corrections system.” P ell v. Procunier

, 417 U.S.

817, 822 (1974). Consequently, when reviewing a prison policy that rest ricts the fl ow of6

publications to prisoners, we ask whether that

p olicy is “reasonably related to legitimat e

penological interests.” T

hornburgh v. Abbott

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

Defendants claim that the challenged materials were withheld pursuant to priso n policy

because they would create an increased danger

o f physical harm to prisoners and prison employees or contain material of a racially inflammatory manner that would encourage disruptions such as str ikes or riots. To determine

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

ordinarily would engage in t he four-factor

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

(1987). Under T

urner

, however, restri cti ons

on materials deemed likely to produce violence

are permissib le because they are rationally

related to valid penological objectives

. S ee

Ch irceol v. Phillips, 1 69 F.3d 313, 316-17

(1999). Included in the mat erials that can be

rightfully excluded as tending to promot e

violence are thos e that promote racial or

religious hatred. See id.

Furthermore, Ayers is not maki ng a facial

challenge to the po licy; instead, he contends

that the regulation has been unconstitutionally

applied in his case because prison officials

have denied him access to the materials he

desire s under the pretext that they promote

violence and racial discord. Although t he

question of the facial constitutionality of such

restrictions is one of law, the application of the

restriction in individual cases necessarily

involves questions of fact. S ee Rooks v.

Zavares

, No. Civ.A. 99-B-631, 2001 W L

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

defeat summary judgment, therefore, Ayers

must demonstrate that a genu ine issue of

material fact remains for trial.

After reviewing the challenged material, the distri ct court found, and we agree, that the

publications we re well within the realm of

material that may be restricted because of their

potential to cause violence. The portion of the

June 1998 issue of the Graterfriends Newsletter that was withheld from Ayers containe d

racial epithets. According to prison officials’

expert judgment, to which we are required to

give great deference, 5 the presence of such

mate rial 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 speaks for

itself as to whether it contains materi al that

could prom ote racial hatred and violence. The

N

. . . Bible is no less inflammatory. It uses

the racial epit het 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, r e present such

strong evidence t hat the publications can be

constitutionally excluded that it is very unlikely

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 sufficie nt quantum of evidence is

present to demonstrate a genuine issue of

material fact for trial.

5 S ee O’Lone v. Estate of Shabazz

, 482 U.S.

342, 349 (1987); Oliver v. Scott

, 276 F.3d 736,

745 (5th Cir. 2002).7

The only evidence Ayers submits that 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

t hese materials belies the prison officials’

argument that the challenged publications have

been excluded because of their racially antagonistic 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 T

he N

. . . Bible ; and excerpts

from The Black Power Imperative that discuss

, inter al i a

, Dred Scott v. Sandford

, 60 U.S.

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

beings of an inferior order . . .”).

Ayers’s attempt to demonstrat e 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 w it h t he book of a Pulitzer

Prize and National Book Award nominee who

is renowned for her civil rights work is like

equatin g “chalk and cheese.” B lakeley v.

Washington

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

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

inap po sit e to compare the essay on slavery

that A yers seeks (a document reminiscent of

the propagandistic and anti-Semitic Protocols

of the Elders of Zion ) with Dred Scott

.

Al t hough 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

t he substantial deference

we afford to the expert judgment of priso n

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

The judgment is AFFI RMED i n part, REVERSED in part; and REMANDED for consideration of the claims Ayers sought to bring

in his second amended complaint.