IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41064

GEORGE MORGAN

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a judgment denying relief in a habeas corpus case

brought under 28 U.S.C. § 2254 by Texas state prisoner George Morgan. Morgan

challenges a disciplinary proceeding in which he was charged with the use of

indecent or vulgar language in a note he mailed to opposing counsel in

connection with pending litigation. He says that the First Amendment protects

his vulgar pen from penalty and that the Fourteenth Amendment protects his

good time credits from loss. The district court denied relief, and we granted a

certificate of appealability (COA). We decide that the Texas Department of

United States Court of Appeals

Fifth Circuit

F I L E D

June 8, 2009

Charles R. Fulbruge III

Clerk
No. 07-41064

2

Criminal Justice (TDCJ) has a legitimate penological interest in rehabilitation

that justified disciplining Morgan, and that the TDCJ did not deny Morgan due

process at his disciplinary hearing. Accordingly, we affirm.

I.

The underlying facts are not disputed. In 2005, during a habeas

proceeding apart from this one, in response to the State of Texas’s motion to

dismiss, Morgan mailed Assistant Attorney General Susan San Miguel a note

written on toilet paper. That note said: “Dear Susan, Please use this to wipe

your ass, that argument was a bunch of shit! You[rs] Truly, George Morgan.”

Assistant Attorney General S. Michael Bozarth returned the note to the warden

of the Stevenson Unit, the correctional institution where Morgan was

incarcerated, along with a letter describing the circumstances of Morgan’s

correspondence. 

Morgan was charged with the use of indecent or vulgar language under

Rule 42.0 of the TDCJ Disciplinary Rules and Procedures. At his disciplinary

hearing, he was found guilty and, among other penalties, was punished with the

loss of fifteen days of good time credit. Morgan filed step-one and step-two

grievances appealing the disciplinary proceeding, both of which were denied. 

Morgan then filed the instant application for habeas relief in the United

States District Court for the Southern District of Texas, alleging that the

disciplinary proceeding violated his rights under the First Amendment and the

Due Process Clause of the Fourteenth Amendment. The district court granted

summary judgment for the TDCJ, dismissed Morgan’s application, and denied

a COA. Morgan filed a motion to alter or amend judgment, which was denied.

He appealed, and this court granted a COA. We now decide whether Rule 42.0,

as applied, violated Morgan’s rights.
No. 07-41064

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II.

Rule 42.0 of the TDCJ Disciplinary Rules and Procedures prohibits the

“use of indecent or vulgar language or indecent or vulgar gestures in the

presence of or directed at an employee or any person who is not an offender.”

Morgan argues that the rule, as applied to his mailed note, is an unnecessary

infringement of his First Amendment right to free speech because there is no

legitimate penological reason for applying the rule to outgoing mail. The district

court rejected that argument, concluding that the rule was properly applied to

restrict the use of indecent or vulgar language in “legal mail” directed at

opposing counsel. The district court also concluded that Morgan was not denied

due process at his disciplinary hearing.

We review the district court’s summary judgment, including its

conclusions of law, de novo. E.g., Virgil v. Dretke, 446 F.3d 598, 604-05 (5th Cir.

2006). 

 A.

It is well-established that a prisoner retains certain First Amendment

rights notwithstanding his incarceration. See, e.g., Pell v. Procunier, 417 U.S.

817, 822 (1974). Nevertheless, “lawful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a retraction justified by

the considerations underlying our penal system.” Bell v. Wolfish, 441 U.S. 520,

545-46 (1979) (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)). In the First

Amendment context, a prisoner retains only those rights “that are not

inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Pell, 417 U.S. at 822. It is generally

recognized that security, order, and rehabilitation are legitimate penological

objectives. E.g., Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).

In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court announced four

factors relevant to determining whether a prison regulation that restricts
No. 07-41064

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constitutional rights is permissible: (1) whether there is a “‘valid, rational

connection’ between the prison regulation and the legitimate government

interest put forward to justify it”; (2) “whether there are alternative means of

exercising the right”; (3) “the impact accommodation of the asserted

constitutional right will have on guards and other inmates”; and (4) whether “the

absence of ready alternatives is evidence of the reasonableness of a prison

regulation.” Id. at 89-90. In a recent case the Supreme Court, unsurprisingly,

acknowledged the particular importance of the first factor, explaining that in

some cases the second, third, and fourth factors can “add little, one way or

another, to the first factor’s basic logical rationale.” Beard v. Banks, 548 U.S.

521, 532 (2006). In the light of the first factor, “the real task” is to determine

whether there is a “reasonable relation” – that is, “more than simply a logical

relation” – between the prison regulation and the legitimate penological interest.

Id. at 533. Our own cases reflect this approach to Turner analysis. Specifically,

we have held that where, as here, a prison regulation restricts a prisoner’s rights

with respect to mail, “the appropriate inquiry is whether the practice is

reasonably related to a legitimate penological interest.” Brewer v. Wilkinson, 3

F.3d 816, 824 (5th Cir. 1993) (citing Turner, 482 U.S. at 78). 

We necessarily begin with the prison’s asserted legitimate penological

interest. The TDCJ argues that it has a legitimate penological interest in

rehabilitating prisoners in preparation for their return to society, and that by

applying Rule 42.0 to punish Morgan for the use of indecent or vulgar language

in an outgoing letter, the TDCJ is correcting behavior that mainstream society

deems unacceptable. 

We have not had prior occasion to address whether the penological interest

in rehabilitation can justify the suppression of speech in outgoing mail. We

have, however, previously rejected the penological interests in order and security

as justifications for the suppression of speech in outgoing mail merely because
No. 07-41064

5

it is coarse and offensive, vulgar, or defamatory. McNamara v. Moody, 606 F.2d

621, 624 (5th Cir. 1979); see also Thornburgh v. Abbott, 490 U.S. 401, 411 (1989)

(outgoing mail “d[oes] not, by its very nature, pose a serious threat to prison

order and security”). In McNamara, a prisoner wrote a letter to his girlfriend

in which he stated that a prison officer had sex with a cat. The officer, who read

the letter, refused to mail it. McNamara, 606 F.2d at 623. The prison argued

to this court that permitting such speech in outgoing mail would lead to a “total

breakdown” in prison security and discipline. Id. at 624. This court, however,

observed that “coarse and offensive remarks are not inherently breaches of

discipline and security,” and explained that “[c]ensorship for violation of prison

disciplinary rules is properly limited to communications that relate to more

concrete violations such as ‘escape plans, plans for disruption of the prison

system or work routine, or plans for the importation of contraband.’” Id. (quoting

Martinez, 416 U.S. at 413). 

McNamara is different from this case in, at least, two very important

respects. First, the prison in McNamara did not assert a legitimate penological

interest in rehabilitation, and therefore we did not specifically address

rehabilitation in that case. Second, although referencing a guard, the letter in

McNamara was privately addressed to, and intended only for, the prisoner’s

girlfriend, and not, as here, addressed to and intended for opposing counsel in

connection with pending litigation. As the district court observed, the note

Morgan wrote on the piece of toilet paper and mailed to opposing counsel was

unsolicited, harassing, and resembled a threat. 

The TDCJ has a legitimate penological interest in rehabilitating prisoners

in preparation for their return to society, and disciplinary proceedings can

further that interest. See Wolff v. McDonnell, 418 U.S. 539, 562 (1974) (“[T]he

proceedings to ascertain and sanction misconduct themselves play a major role

in furthering the institutional goal of modifying behavior and value systems of
No. 07-41064

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prison inmates sufficiently to permit them to live within the law when they are

released.”). Morgan’s note demonstrated a completely unjustified disrespect for

authority, expressed in the most unacceptably vulgar form, which would be

offensive in mainstream society; it would not be tolerated from a peer member

of the bar, and would not be tolerated from a pro se litigant in the free setting.

The TDCJ’s disciplinary action serves to correct behavior that would seriously

prejudice Morgan when he returns to the civil world. We thus conclude that the

TDCJ had a legitimate penological interest in rehabilitation that justified the

disciplinary action. Rule 42.0, as applied to Morgan’s mailed note, was not an

impermissible infringement of his First Amendment right to free speech 

B.

Morgan also alleges that he was denied due process at his disciplinary

hearing because he was denied the right to present witnesses, there was

insufficient evidence to support the charge, and the disciplinary hearing officer

was biased. Morgan’s claims are without merit. 

We do not dispute that revocation of good time credits that embody a

liberty interest must comply with minimum procedural requirements. Henson

v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). A prisoner is

entitled to: (1) written notice of the charges at least 24 hours prior to a

disciplinary hearing; (2) an opportunity “to call witnesses and present evidence

in his defense when permitting him to do so will not be unduly hazardous to

institutional safety or correctional goals”; and (3) “a written statement by the

factfinders as to the evidence relied on and the reason for the disciplinary

action.” Wolff, 418 U.S. at 564-65 (citations omitted). A reviewing court is

required only to find “some evidence” supporting a disciplinary hearing officer’s

decision. Richards v. Dretke, 394 F.3d 291, 294 (5th Cir. 2004) (citing

Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985) (“The
No. 07-41064

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requirements of due process are satisfied if some evidence supports the decision

by the prison disciplinary board to revoke good time credits.”)). 

We are satisfied that the requirements of due process were satisfied at

Morgan’s disciplinary hearing. Morgan received notice of the disciplinary

hearing and his attendant rights. Although there is no constitutionally protected

right to counsel substitute in a disciplinary proceeding, he nevertheless was

provided such assistance. At the hearing, Morgan called the charging officer as

a witness, and that officer testified via speaker phone. Morgan also requested

the prison’s mail room supervisor and Assistant Attorney General S. Michael

Bozarth be called as witnesses, but the hearing officer properly denied that

request. Any testimony of the mail room supervisor, who submitted a statement

indicating that he did not screen Morgan’s outgoing mail, was irrelevant in the

light of the fact that Morgan’s note was not intercepted, but instead returned to

the prison by Bozarth. It was also not unreasonable for the hearing officer to

refuse to call Bozarth, given that his involvement in the facts was not at issue

and that Morgan apparently sought Bozarth’s legal opinion, not his factual

testimony. At the conclusion of the hearing there was more than “some

evidence” sufficient to support disciplinary action. Specifically, the charging

officer’s report and testimony, Morgan’s admission that the note was in his

handwriting, and prison mail logs all supported the finding against him.

Morgan’s claims that he was denied the right to present witnesses and that

there was insufficient evidence to support the charge are without merit.

Finally, to prevail on his claim that his hearing officer was biased, Morgan

needed to show that the actions taken “present[ed] such a hazard of arbitrary

decisionmaking that it should be held violative of due process of law.” Wolff, 418

U.S. at 570. Morgan contends that the hearing officer was biased because he

rejected Morgan’s questions to the charging officer. The hearing officer allowed

many of Morgan’s questions, and also himself questioned Morgan about the
No. 07-41064

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factual background of the charges. Morgan’s bias claim is therefore also without

merit.

III.

Accordingly, for the reasons stated herein, the district court’s judgment is

AFFIRMED.