* Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-8514

Summary Calendar

_____________________

ALAN WADE JOHNSON,

Appellant,

versus

EL PASO COUNTY SHERIFF'S DEPARTMENT,

SHERIFF LEO SAMANIEGO, CAPTAIN RAMON

RAMIREZ, LIEUTENANT EDWARD SERVIDER,

and GRIEVANCE OFFICER JOE LOPEZ,

Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

(EP 92 CV 44)

_________________________________________________________________ ( March 20, 1995 )

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

This case is now pending before us on motion of the appellant

to recall the mandate. The original opinion in this case was filed

on February 25, 1994. On March 29, 1994, Johnson filed a petition

for rehearing, arguing that we had misinterpreted the law and that1 "For purposes of liability, a suit against a public official

in his official capacity is in effect a sui t against the local

government entity he represents." M airena v. Foti

, 816 F.2d 1061,

1064 (5th Cir. 1987) (citing Kentucky v. Graham

, 473 U.S. 159

(1985) and Brandon v. Holt

, 469 U.S. 464 (1985)), cert. denied

, 484

U.S. 1005 (1988).

-2- we had analyzed the wrong protective order. His petition was

denied on November 2. Johnson filed a motion to recall the mandate

on November 25, raising the same errors as his petition for

rehearing. After reviewing his motion, we have found that his

arguments merit further consideration. Accordingly, the mandate is

recalled, the February 25 opinion is hereby withdrawn, and the

following opinion is substituted therefore.

I

On March 3, 1992, Alan Wade Johnson filed suit, pro se

,

against the El Paso County Sheriff's Department and several of its

employee s, in their individual and official capacities, 1 under 42

U.S.C. § 1983 alleging the unconstitutional censorship of his

incoming mail while he was confined in the El Paso County Detention

Facility as a pretrial detainee . Specifically, Johnson complains

that a greeting card and letter were censored and returned to his

sister marked "no cards allowed"; that several photographs of his

girlfriend in lingerie were returned to his girlfriend marked

"photos unacceptable"; that a catalog he had ordered from General

Motors was rejected pursuant to a total ban on catalogs; and that

he never received any notice when incoming mail was censored and

returned. In response to these complaints, the defendants filed-3-

their original answer on March 23 raising the affirmative defenses

of absolute and qualified immunity.

Shortly thereafter, during discovery, Johnson served upon

Sheriff Leo Samaniego a request f or production of documents.

Defendant Samaniego complied with Johnson's requests, in part, and

o bjected to the requests, in part. On May 11, 1992, Sheriff

Samaniego filed a motion for protective order, requesting the court

that he not be required to produce certain parts of the information

requested. The magistrate judge granted, in part, and denied, in

part, this motion for protective order, and the district court

later affirmed the ruling of the magistrate judge.

On July 6, 1992, Johnson filed a motion for the appointment of

counsel. The district court denied that motion on July 10. On the

same day, the district court sua sponte entered an order (the

"Amendment Order") specifying certain legal deficiencies in

Johnson's complaint and requiring Johnson to amend his complaint to

satisfy the pleading requirements of § 1983 by pleading facts with

sufficient particularity to overcome the defendants' immunity

defenses. On July 27, 1992, Johnson filed an amended complaint in

response to the Amendment Order.

On September 16, 1992, however, the district court found that

Johnson's amended c omplaint also failed to state facts with

sufficient particularity to satisfy the pleading requirements of a

§ 1983 action, and the court dismissed Johnson's acti on with-4-

prejudice, ("Order of Dismissal"). Judgment was entered in favor

of the defendants, and this appeal was filed before this court.

II

Johnson raises three main issues on appeal. First, he asserts

that the district court e rred in denying him appointed counsel.

Second, Johnson asserts that the trial court erred in allowing the

grant of the prot ective order stating that Sheriff Samaniego did

not have to produce certain information. Finally, Johnson contends

that the district court erred in dismissi ng his claim with

prejudice on the basis that his pleadings lacked the requisite

factual specificity to overcome the defendants' claim of immunity.

As the case comes to us , the primary issue is whether the

district court properly dismissed Johnson's first amended complaint

for failing to state facts with sufficient particularity to satisfy

the pleading requirements of a § 1983 cause of action. We find

that the district court erred in determining that Johnson's

complaint lacked the requisite factual specificity , but we,

nonetheless, affirm the district court, in part, holding that the

individual defendants are entitled to qualified immunity from most

of Johnson's claims. We reverse the district court, however, in

its dismissal of Johnson's remaining claim against the individual

defendants and in its dismissal of Johnson's claims against El Paso

County, and we remand this case for further proceedings.

In its September 16, 1992, Order of Dismis sal, the district

court held that Johnson's complaint failed to state facts with2 Johnson's complai nt alleges several specific, personal

injuries that he suffered as a pretrial detainee in the El Paso

County Detention Facility. He asserts that his injuries resulted

from the manner in which his incoming mail was handled by the

defendants. First, Johnson's complaint specifically alleges that

his sister mailed him a greeting card and letter. He states that

he never received these items, however, because they were censored

and returned to his sister marked "no cards allowed." Furthermore,

Johnson complains that his girlfriend sent him several photographs

of herself in lingerie, but these too were returned to the sender--

these were marked "photos unacceptable." Next, Johnson plead facts

to show that on July 3, 1991, a catalog that he had ordered from

General Motors was rejected and returned to the sender pursuant to

a total ban on ca talogs. Finally, Johnson complains that he has

been injured because he was unable to find out who had written to

him during his detainment because he never received any notice when

incoming mail was censored and returned, even though ma il was

censored and returned on numerous occasions.

-5- sufficient particularity to satisfy the pleading requirements of a

§ 1983 cause of action. Accordingly, the district court dismissed

Johnson's complaint with prejudice. We find that the district

court's reasoning was in error. 2

First, the United States Supreme Court has now made clear that

a heightened pleading standard cannot be required in § 1983 cases

with respect to allegations of local government liability.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination

Unit

,

___ U.S.

___, 113 S.Ct. 1160, 1162 (1993) (stating that a

local government entity can be immune from liability, but is not

immune from suit). Accordingly, with respect to Johnson's claims

against the county of El Paso, a s a local government entity, we

app ly the usual pleading requirements of a simple and concise

statement of the claim. See Fed. R. Civ. P. 8(a)(2). Under this

simple construction, a Rule 12(b)(6) dismissal for failure to state3 We made clear in Wicks v. Mississippi State Emp loyment

Services

, 41 F.3d 991, 995 n.11 (5th Cir. 1995), that,

notwithstanding Leatherm an , we will apply a heightened pleading

requirement in cases involving the qualified immunity of individual

government officials. Until this issue is decided en banc by the

court, see Schultea v. Wood

, 27 F.3d 1112 (5th Cir. 1994), reh'g en

banc granted (Aug. 26, 1994), Wicks is the law of the circuit which

we are bound to follow. This heightened pleading requirement,

nonetheless, is not determinative in this case.

-6- a claim upon which relief can be granted should only be granted if

it appears to a certainty that Johnson w ould not be entitled to

recover under any state of facts that could be proved in support of

his claim. S ee Hospital Bldg. Co. v. Trustees of Rex Hosp. , 425

U.S. 738 (1976); Heaney v. U.S. Veterans Admin.

, 756 F.2d. 1215,

1217 (5th Cir. 1985). Clearly, under this standard, the district

court should not have dismissed Johnson's claims against El Paso

County on grounds lack of factual specificity in his complaint. He

alleged facts sufficient to support a claim against the county that

will withstand the Rule 12(b)(6) motion to dismiss.

With respect to Johnson's § 1983 claims against the individual

officers of the El Paso County Sheriff's Department, however, this

circuit generally does apply a he ightened pleading standard.

Elliott v. Perez

, 751 F.2d 1472, 1473 (5th Cir. 1985). 3 This

standard "demands more than bald allegations and conclusionary

statement s. [The plaintiff] must allege facts specifically

focusing on the conduct of [the defendant] which caused his

in jury." W icks v. Mississippi State Employment Servs.

, 41 F.3d

991, 995 (1995). That heightened pleading standard requires that-7-

"[w]hen government officials are likely to invoke qualified

immunity

. . . a complaint [should] state factual detail and

particularity including why the defendant-official cannot maintain

the immunity defense." C olle v. Brazos County, Tex.

, 981 F.2d 237,

246 (5th Cir. 1993). We find that in the case before us, Johnson's

amended pleadings are made with enough factual specificity to

survive either a simple or a heightened pleading requirement.

Thus, with respect to Johnson's § 1983 claims against the

individual officers of the El Paso County Sheriff's Department, we

find that the district co urt erred in dismissing Johnson's

complaint for lack of factual specificity.

We do not find it necessary, however, to reverse the district

court, in toto. The import of the heightened pleading requirement

is to enable the district court judge to determine whether the

plaintiff has stated a claim upon which relief can be granted,

including the questio n of whether the plaintiff can overcome the

immunity claimed by the defendants. E lliott

, 751 F.2d at 1480.

Today, we affirm, in substantial part, the district court's

d ismissal of Johnson's claims against the individual defendants,

because even in the light of Johnson's fact specific pleadings, the

individual defendants are entitled to immunity from most of

Johnson's claims as a matter of law.

As previously noted, Johnson brought this suit against both El

Paso County and the officers of the El Paso County Sheriff's

Department in their individual capacities. We will first address-8-

Johnson's claims against the county: "[L]ocal government liability

under section 1983 is established only where the `execution of a

government's policy or custom, whether made by its law makers or by

those whose edicts arguably or acts may be fairly said to represent

official policy, inflicts the injury.'" M airena v. Foti

, 816 F.2d

1061, 1064 (5th Cir. 1987) (quoting Monell v. Department of Social

Services

, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 (1978)); see

also City of Canton v. Harris

, 489 U.S. 378, 385, 109 S.Ct. 1197

(1989). Otherwise, a local government is said to be immune from

liability. M onell

, 436 U.S. at 694; 98 S.Ct. at 2037-38; see also

Leatherman , ___ U.S. at ___, 113 S.Ct. at 1162.

Johnson's case clearly should not have been dismissed for

failure to state a claim against El Paso County. J ohnson complains

of specific instances in which his incoming mail was censored and

returned to the sender, allegedly causing constitutional injury to

him. Johnson's complaint also specifically alleges that the action

taken with respect to this mail was pursuant to a custom/policy of

the Sheriff's Department. In several instances, Johnson quite

clearly references and even attaches an Inmate Handbook and an

Interoffice Memorandum to support the contention that his mail was

rejected pursuant to the policies and customs of the detention

center. In other instances, Johnson alleges that he followed the

grievance procedures to correct his injury but got no relief from

the officials of the facility--people whose edicts arguably could

be said to reflect the official policy of the facility.4 The distric t court should consider on remand whether

Johnson's proffered evidence raises any viable constitutional

injury under Turner v. Safley

, 482 U.S. 78, 107 S.Ct. 2254 (1987).

We make no determination as to the merits of Johnson's claims. We

w o uld emphasize, however, that the expertise of prison

admini strators is to be respected by the courts, because prison

administration is "a task that has been committed to the

responsibility of [the legislative and exec utive] branches" and

"`courts are ill equipped to deal with the increasingly urgent

problems of prison administration.'" I d. at 84, 107 S.Ct. at 2259

(quoting Procunier v. Martinez , 416 U.S. 396, 405-06 (1974)). It

is, however, the duty of the courts to protect the prisoner's right

to have prison regulations concerning incoming mail be " reasonably

related to le gitimate penological interests." T hornburgh v.

Abbott

, 490 U.S. 401, 404, 109 S.Ct. 1874, 1877 (1989); Turner

, 482

U.S. at 89 (1987).

The Supreme Court in Turner established that several factors

must be balanced in order to determine whether a reasonable

relationship exists between the questioned policy of mail rejection

and a legitimate penological interest. S ee Thornburgh

, 490 U.S. at

414 . The factors are: 1) whether the governmental objective

underlyin g the regulation is legitimate and neutral, and whether

there is a rational relationship between the governmental objective

and t he challenged regulation; 2) whether alternative means of

exercising the asserted right remain open to prison inmates; 3)

whether the accommodation of the asserted right would significantly

impact others in the prison, including guards and inmates; and 4)

whether there are "re ady alternatives" to the challenged

regulation, the lack of which is evidence of reasonableness and the

existence of which points to unreasonableness although this test is

-9- Johnson further asserts in his complaint that he was injured

by hi s inability to find out who wrote to him during his

detainment. He alleges that no method of notification is

established in the handbook on incoming mail, and he explains that

although given an opportunity, the officials of the facility took

no action to correct the problem of notification. El Paso County,

therefore, was not entitled to dismissal of Johnson's claims, and,

accordingly, we remand this case for the district court to consider

more fully Johnson's constitutional claims against El Paso County. 4not a "least restrictive alternative" test. T urner

, 482 U.S. at

89-91, 107 S.Ct. at 2262.

-10- The claims against the individual defendants, however, require

a different analysis. For a defendant pleading qualified immunity

to be liable, the defendant official's conduct must have violated

"clearly established statutory or constitutional rights of which a

reasonable person would have known." H arlow

, 457 U.S. at 818

(1982). In other words, even if it is decided that El Paso,

pursuant to its policies and practices, violated Johnson's

constitutional rights by rejecting incoming mail in a manner that

is not reasonably related to a legitimate penological interest, the

individual defendants could not be held personally liable under §

1983 unless Johnson's constitutional rights were "clearly

established" at the time these events took place. S ee Stem v.

Ahearn

, 908 F.2d 1, 5 (5th Cir. 1990), cert. denied

, 498 U.S. 1069,

111 S.Ct. 788 (1991).

In order for a constitutional right to be clearly established,

"[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he was doing

violates that right." A nderson v. Creighton

, 483 U.S. 635, 640,

107 S.Ct. 3034, 3039 (1987). Applying this standard, we find that

the individual defendants in the present case are entitled to

i mmunity from suit on all but one claim made against them by

Johnson. As to that single claim, however, we find that Johnson's

constitutional rights were sufficiently defined, so that a5 482 U.S. 78, 107 S.Ct. 2254 (1987).

-11- "reasonable official would understand that what he was [allegedly]

doing violates that right." Id.

In 1987, the Supreme Court, in Turn er v. Safely 5

, clearly

established that a prisoner has a right to have prison regulations

concerning incoming mail be "reasonably related to legiti m ate

penological interest." S ee Turner

, 482 U.S. at 89, 107 S.Ct. at

2261. In the same case, the Supreme Court developed a m ultifactored balancing test that courts must apply to determine whether

a reasonable relationship exists between the questioned policy of

mail rejection and a legi timate penological interest. S ee

Thornburgh

, 490 U.S. at 414. The contours of the T urner test,

however, are not "sufficiently clear" for us to hold that in 1991

there was any "general, well-develo ped legal principle[]" that

would cause a reasonable jail official to know that he or she was

violating Johnson's constitutional rights by rejecting Johnson's

mail as alleged by Johnso n in his pleadings. S ee Jefferson v.

Ysleta Indep. Sch. Dist. , 817 F.2d 303, 305 (5th Cir. 1987).

In addition to the complaints about the rejection of his mail,

h owever, Johnson also complains about the "lack of notification"

available to alert him to such rejections. Johnson asserts in his

complaint that he was injured by his inability to find out who

wrote to him during his detainment. With respect to this single

claim, we hold that the individual defendants are not entitled to6 Johnson also contends that the district court erred in

denying him appointed counsel. A district court has the discretion

to appoint counsel, if doing so would advance the proper

administration of justice. 28 U.S.C. § 1915; U lmer v. Chancellor

, 691 F.2d 209, 213 (5th Cir. 1982). Generally speaking, however, no

-12- immunity from suit. In 1974, the Supreme Court quite clearly

established that there must be some "minimum procedural safeguards"

to accompany the decision to censor or withhold delivery of a

particular letter. P rocunier v. Martinez

, 416 U.S. 396, 417-18, 94

S.Ct. 1800, 1814 (1974)). In that case, the Supreme Court required

that an inmate be notified of the rejection of a letter

written by or addressed to him , that the author of that

letter be given a reasonable opportunity to protest that

de cision, and that complaints be referred to a prison

official other than the person who originally disapproved

the correspondence.

Id. (emphasis added). Certainly after M artinez

, a "reaso nable

official would understand that [failing to noti fy Johnson of the

rejection of a letter addressed to him] violates [Johnson's

constitutional rights]." S ee Anderson v. Creighton

, 483 U.S. 635,

640, 107 S.Ct. 3034, 3039 (1987).

Accordingly, we affirmthe district court's dismissal of

Johnson's " rejection " claims against the individual defendants on

the basis that these individual defen dants are entitled to

qualified immunity, but we reverse the district court's dismissal

of Johnson's " notification " claim against the individual

defendants. As previously noted, we also reverse the district

court to the extent that it dismissed Johnson's claims against the

county of El Paso. 6right to counsel exists in a § 1983 case. H ardwick v. Ault , 517

F.2d 295, 298 (5th Cir. 1975).

"The trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless

the case presents exceptional circumstances." Ulmer , 691 F.2d at

212 (citation omitted); Branch v. Cole

, 686 F.2d 264, 266 (5th Cir.

1982); Schack v. Florida

, 391 F.2d 593 (5th Cir. 1968), cert.

denied

, 392 U.S. 916, 88 S.Ct 2080 ( 1968). "[T]he existence of

such circumstances will turn on the quality of two basic factors

-- the type and complexity of the case, and the abilities of the

individual bringing it." Branch , 686 F.2d at 266.

We cannot say that this case presents any exceptional

circumstances to indicate that the district court abused its

discretion in denying Johnson appointed counsel. Accordingly, we

affirm the district court in this ruling.

Johnson also appeals the district court's order affirming the

magistrate judge's protective order stating that Sheriff Samaniego

did not have to respond to various discovery requests made by

Johnson. It is true that a party generally "may obtain discovery

regarding any matter

. . . which is relevant to the subject matter

involved in the pending action." Fed. R. Civ. P. 26(b)(i). But it

is also true that "`[c]ontrol of discovery is committed to the

sound discretion of the trial court, and its discovery rulings will

be re versed only where they are arbitrary or clearly

unreasonable.'" W illiamson v. USDA

, 815 F.2d 368, 373 (5th Cir.

1987) (quoting Mayo v . Tri-Bell Industries, Inc. , 787 F.2d 1007,

1012 (5th Cir. 1986).

In the present case, on July 20, 1992, the district court

affirmed the June 23, 1992 , discovery order of the magistrate

judge. Concluding that Johnson requested information that was too

broa d, irrelevant, and an undue burden on the defendants, the

m agistrate judge granted the defendants' motion for a protective

order as to most of Johnson's forty requests for production of

documents. We think that the district court abused its discretion

in excluding substantially all discovery. As we hold today,

Johnson has clearly made a colorable claim relatin g to policies

regarding the rights of prisoners to receive and be made aware of

incoming mail. The district court should, therefore, reconsider

its decision so as to allow Johnson a reasonable opportunity to

discover information that is relevant to his claims. Of course,

Johnson must not be allowed to abuse the discovery process and

place unreasonable, irrelevant, or unnecessarily burdensome

discovery demands on the county. We leave Johnson's specific

requests in the capable and fair hands of the district court.

-13--14- III

We thus conclude that the district court erred in dismissing

Johnson's claims against El Paso County. Johnson's pleadings were

sufficiently fact specific, and t he county is entitled to no

dismissal in this case on the face of the pleadings. Similarly,

the district court erred in dismissing Johnson's "lack of

notification" claim against the individual defendants. We affirm

the district court, however, with respect to its dis missal of

Johnson's other claims against the individual defendants, because

even tho ugh Johnson's pleadings were fact specific, he has no

sustainable claim that the individual s violated a clearly

established constitutional right. With respect to those particular

claims, therefore, the individual defendants are immune from suit

as a matter o f law. We further affirm the district court in its

denial of appoint ed counsel. We, however, reverse the district

court's discovery order of July 2 4, 1992, which affirmed the

magistrate judge's protective order of June 23, 1992, con cerning

the forty requests for document production, and we remand Johnson's

discovery requests for consideration in the light of this opinion.

The judgment of the district court is hereby

AFFIRMED in part and REVERSED and REMANDED in part.