Opinion
CIVIL ACTION NO. 1:99-CV-011-C
March 24, 2004
ORDER
Plaintiff, Richard Terrance Ayers, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging that he had been denied access to publications on the pretextual grounds that they contained racially inflammatory material and were designed to achieve a breakdown of prisons through inmate disruptions such as strikes and riots.
Plaintiff was incarcerated in the Robertson Unit of the Texas Department of Criminal Justice at the time he filed his complaint.
Plaintiff admitted that at least one of the publications had been banned in 1992. He also admitted that he was advised by prison officials and the Director's Review Committee as to the reasons why the requested publications were prohibited.
Plaintiff's complaint was dismissed as frivolous on October 4, 2001. Thereafter, the United States Court of Appeals for the Fifth Circuit affirmed in part and reversed in part, and remanded the case for this Court to consider Plaintiff's claims regarding the denial of three specific publications — (1) a June/Summer 1998 issue of the Graterfriends Newsletter (Graterfriends Newsletter), (2) an 18th Century Essay on Perpetuating Slavery in the United States (Slavery Essay), and (3) The Nigger Bible. The Fifth Circuit found that the dismissal by this Court was premature because the Court had not reviewed the three publications prior to dismissing the complaint. Upon remand, this case was referred to the United States Magistrate Judge for an evidentiary hearing and entry of findings and conclusions and a recommendation. The Magistrate Judge filed her Findings, Conclusions and Recommendation on January 24, 2003, and this Court accepted the findings, conclusions, and recommendation and ordered the Defendants to answer.
Defendants Gary Johnson, Linda Patterson, Michel Countz, Jim Zeller, Robert Ott, Winston Hold, Herman Tienert, Neill Hodges, Richard Deal, Judy Sloan, and Melton Brock filed their answers. Defendants also filed a partial motion to dismiss all claims filed against them in their official capacities. Plaintiff acknowledged that he was not seeking monetary damages against any defendant in his official capacity. By Order dated January 27, 2004, all claims seeking monetary damages against all Defendants in their official capacities were dismissed.
Defendants filed their Motion for Summary Judgment on February 6, 2004, and Plaintiff filed his response on February 27, 2004.
The Court has now considered Defendants' motion for summary judgment, the summary judgment evidence, Plaintiff's response, his sworn amended complaint, and his sworn testimony given at the evidentiary hearing held before the United States Magistrate Judge pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
The Court has also examined the three publications which are the focus of Plaintiff's complaint, all of which have been submitted to the Court under seal. Specifically the Court has examined the Graterfriends Newsletter, the Slavery Essay, and The Nigger Bible.
SUMMARY JUDGMENT
The Fifth Circuit summarized the summary judgment standard in Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999):
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. If the moving party carries its initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine issue of material fact. This showing requires more than some metaphysical doubt as to the material facts. While the party opposing the motion may use proof filed by the movant to satisfy its burden, only evidence-not argument, not facts in the complaint-will satisfy the burden.Burge, at 465 [internal citations and quotations omitted].
"A dispute about a material fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "In making its determination, the court must draw all justifiable inferences in favor of the nonmoving party." Id. (citation omitted).
"Disputed facts preclude summary judgment if the evidence is such that a reasonable jury could return a verdict for the nonmovant. In determining whether summary judgment was appropriate, courts must view the inferences to be reasonably drawn from the underlying facts in the record in the light most favorable to the non-movant." Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999) [internal citations omitted].
Plaintiff claims a deprivation of rights guaranteed to him by the First Amendment to the United States Constitution. Specifically, he claims that he was denied access to three specific publications, all of which have now been examined by this Court.
QUALIFIED IMMUNITY
Defendants claim they are entitled to qualified immunity. "The doctrine of qualified immunity serves to shield . . . government official [s] from civil liability for damages based upon the performance of discretionary functions if the official[s'] acts were objectively reasonable in light of then clearly established law." Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The bifurcated test for qualified immunity asks whether the plaintiff has alleged a violation of a clearly established right and, if so, whether defendant[s'] conduct was objectively unreasonable." Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). Thus, when a defendant has filed a motion for summary judgment raising the defense of qualified immunity, a court must first determine whether the facts, "[t]aken in light most favorable to the party asserting the injury," establish that the defendant officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).
A prisoner-plaintiff bears the burden of defeating a defendant prison official's claim to qualified immunity. Al-Raid v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995).
"If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. at 201. If the plaintiff has established the violation of a constitutional right, however, a court must then determine whether the right was "clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of that then clearly established law." Palmer v. Johnson, 193 F.3d at 351. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition" Saucier v. Katz, 522 U.S. at 201. See Pierce v. Smith, 177 F.3d 866, 872 (5th Cir. 1997) (holding that the first inquiry "will generally involve analysis at a higher level of generality than the second, which focuses not only on the state of the law at the time of the complained of conduct, but also on the particulars of the challenged conduct and/or of the factual setting in which it took place").
"`Clearly established' means that `the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates'" the plaintiff's constitutional rights. Thompson v. Upshur, 245 F.3d at 457 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. at 202.
A defendant official's "acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff." Thompson v. Upshur, 245 F.3d at 457 (emphasis in original). "The `defendant's circumstances' includes [sic] facts know[n] to the defendant," but "because qualified immunity turns only upon the objective reasonableness of the defendant's acts, a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity." Id. (emphasis in original). "The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). "The issue of whether and when a right is clearly established is typically treated as a matter of law." Pierce v. Smith, 117 F.3d at 871. "Likewise, to the extent that the relevant discrete, historic facts are undisputed, . . . the question of the objective reasonableness of a defendant's conduct, — i.e., whether at the time and under the circumstances all reasonable officials would have realized the particular challenged conduct violated the constitutional provision sued on — is also a question of law." Id.
Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 241 (1986).
CONSTITUTIONAL RIGHT
A prisoner retains those First Amendment rights that are consistent with his status as a prisoner or within the legitimate penological objectives of the prison. Hudson v. Palmer, 468 U.S. 517, 523 (1984).
"[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987); Green v. Polunskey, 229 F.3d 486, 489 (5th Cir. 2000). This standard of review also includes an inmate's right to receive publications and general correspondence. See Thornburgh v. Abbott, 490 U.S. 401, 404-19 (1989) (the test regarding a prison regulation allowing prison officials to reject incoming publications found to be detrimental to institutional security is whether it is "reasonably related to a legitimate penological interest"); Turner, 482 U.S. at 84-95; Chriceol v. Phillips, 169 F.3d 313, 315-17 (5th Cir. 1999). "Before delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental" to legitimate penological interests. Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978).
According to Plaintiff, the reasons he was given for the denial of these publications were that the Slavery Essay contained information, which, if communicated, would create a clear and present danger of violence of physical harm to a human being; and The Nigger Bible and page 13 of the Graterfriends Newsletter contained material of a racial nature that a reasonable person would construe as written solely for the purpose of communicating disruptions such as strikes or riots.
The Fifth Circuit has held that restrictions on certain material that has the potential to produce violence are rationally related to the valid penological interests of insuring the safety of prison inmates. Chriceol, 169 F.3d at 315-17. Violence-producing material may include, inter alia, material that would encourage inmates to strike or riot, material that would encourage racial or religious hatred, id., and material that "provides step-by-step descriptions of the manufacture of weapons, explosives, or drugs. . . ." Guajardo, 580 F.2d at 760. A prison regulation may validly restrict material advocating racial hatred on the basis that it would create a serious danger of violence. Chriceol, 169 F.3d at 316.
The courts are to accord great deference to prison administrators' judgment regarding prison security. Oliver v. Scott, 276 F.3d 736, 745 (5th Cir. 2002).
Relying on O'Lone, supra, the Fifth Circuit has noted four factors which are relevant for determining whether a challenged regulation is valid —
(1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it; (2) whether there are alternative means of exercising the rights that remain open to the inmates; (3) the impact that accommodation of the asserted constitutional rights will have on other inmates, guards, and prison resources; and (4) the presence or absence of ready alternatives that fully accommodate the prisoner's rights at de minimus cost to valid penological interests.Chriceol, 169 F.3d at 316.
"[C]entral to all other goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, 417 U.S. 817, 823 (1974). The security of both inmates and prison employees is a valid penological goal. Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). "Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321-22 (1986).
Prison officials are to rely on the "reasonable person" standard when determining whether a publication can and should be censored. Guajardo, 580 F.3d at 761.
PUBLICATIONS EXAMINED
(1) Graterfriends Newsletter
Prison officials reviewed the June 1998 Graterfriends Newsletter and determined that page 13 qualified for clipping under the Correspondence Rules because it was found to contain material of a racial nature. Plaintiff was advised that page 13 of the Graterfriends Newsletter would be clipped out before the publication was delivered to him. Plaintiff rejected delivery of the clipped edition of the June 1998 Graterfriends Newsletter.
The Court has examined page 13 of the June 1998 Graterfriends Newsletter. That page contained a racial epithet, as well as derogatory terms for Hispanics and others. The denial of the page was reasonably related to legitimate penological interests.
(2) Slavery Essay
The Slavery Essay was titled "How to keep a Black man down: From one White slave owner to another." An introduction to the essay indicated that the message of the essay had not changed since it was written in 1712. The essay recommended ways to control Black slaves by using fear, distrust and envy for control purposes; pitting slaves against one another; comparing cross-breeding "horses and niggers"; breaking the will to resist; and offering suggestions on tarring and feathering so as to make examples of most "uncivilized" slaves.
The entire essay contained racial epithets and material that could be construed as encouraging racial hatred and violence. The denial of the Slavery Essay was reasonably related to legitimate penological interests.
(3) The Nigger Bible
Plaintiff admits that The Nigger Bible had been denied to all inmates in 1992, prior to his request for a copy of the publication in 1998. The Nigger Bible, containing approximately 300 pages, was denied in August 1992 because the entire publication was found to be of a racial nature.
This Court has reviewed The Nigger Bible and finds that the entire publication has the potential to encourage racial hatred and violence. Even the back cover of the book calls the book "explosive" and a "volatile work." Almost every page contains at least one use of the epithet "nigger." It discusses killing to gratify sexual desires, blames whites for infecting Africans with syphilis, claims that the price of integration is the emasculation of the black male, promotes racial segregation and separation, admonishes the reader not to "converse with Caucasians" because Caucasians are the problem of the Black people, and advocates racial hatred.
The denial of The Nigger Bible was reasonably related to legitimate penological interests.
CONCLUSION
The publications were reviewed by prison officials in accordance with agency rules and established policies and procedure, and specific factual determinations were made for each denial.
According to the summary judgment evidence, eleven confirmed active security threat groups within the prison system are formed along racial lines. Even mere racial slurs can foster a major disruption. Racially derogatory or racially inflammatory materials entering the prison system have a potential of causing increased racial unrest or a threat of violence.
This Court is required to give deference to the prison administrators' judgment regarding prison security. The denial of racially motivated materials was rationally related to the objective of maintaining order and safety in the overall prison environment. The racially derogatory or inflammatory materials requested by Plaintiff could cause increased racial unrest and violence in the prison environment. There are no easy alternatives to barring potential racial unrest or a threat of violence, and Plaintiff has not directed the Court to any alternatives.
The Court's review of page 13 of the Graterfriends Newsletter, the Slavery Essary, and The Nigger Bible reveals that each publication contained material which would be detrimental to institutional security and has the potential of producing racial violence. The denial of such publications was reasonably related to the legitimate penological interest of maintaining security within the prison environment and insuring the safety of prison inmates and officers.
For the reasons set forth above and based on the facts and law set forth in Defendants' motion for summary judgment, including the summary judgment evidence, the Court finds that the denial of the publications did not violate Plaintiff's First Amendment rights because the denial in each instance was reasonably related to the legitimate penological interest of institutional security.
Even if Plaintiff's constitutional rights had been violated, the Defendants' actions in denying the three publications were objectively reasonable.
It is, therefore, ORDERED that Defendants' motion for summary judgment is granted. Plaintiff shall take nothing on his claims against the Defendants.
All relief not granted and any pending motions are denied.
Judgment shall be entered accordingly.