Shirley v. Dretke

Full title: EDWIN ATTLEY SHIRLEY, JR., PRO SE, TDCJ-CID # 563454, Plaintiff, v…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Jul 8, 2005

2:05-CV-0041 (N.D. Tex. Jul. 8, 2005)

Opinion

2:05-CV-0041.

July 8, 2005

REPORT AND RECOMMENDATION

CLINTON AVERITTE, Magistrate Judge

Plaintiff EDWIN ATTLEY SHIRLEY, JR., acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendant and has been granted leave to proceed in forma pauperis.

In this lawsuit plaintiff challenges Board Policy 03.91, which imposes a five-letter weekly limit on indigent prisoner legal mail and prohibits receipt of sexually explicit images, whether contained in publications or in photographs. Plaintiff argues the letter limit on indigent legal mail is a "prior restraint" on speech which must be presumed unconstitutional and that, although there is an exception upon showing of "good cause," he has never been allowed to mail more than five legal letters and that charging a prisoner postage is constitutionally impermissible.

Plaintiff requests injunctive relief enjoining the enforcement of B.P. 03.91, that all monies charged by the prison for postage be reimbursed, and that defendants be enjoined from charging indigent postage in the future.

JUDICIAL REVIEW

When a prisoner seeks redress from a governmental entity or from an officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous,¹ malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).²

1 A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

2 Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claims present grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

Initially, the Court notes plaintiff has alleged no connection, however remote, between his claims and defendant HANEY, and upon consideration of her employment (she is alleged to be an Assistant Attorney General), plaintiff's complaint does not reveal any basis on which plaintiff can assert a claim against this defendant.

A plaintiff seeking to invoke the jurisdiction of the federal court must allege an actual case or controversy, as required by Article III of the Constitution. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1669, 1665, 75 L.Ed.2d 675 (1983) (citing Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-1953, 10 L.Ed. 2d 947 (1968); Jenkins v. McKeithen, 3995 U.S. 411, 421-425, 89 S.Ct. 1843, 1848-1850, 23 L.Ed.2d 404 (1969) (opinion of Marshall, J.)). An abstract injury is not sufficient; instead, a plaintiff must show he has a "personal stake in the outcome" by showing he has sustained or is in immediate danger of sustaining a direct injury resulting from the challenged official conduct. The injury must be real and immediate, not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1669, 1665, 75 L.Ed.2d 675 (1983) (citations omitted).

Plaintiff has alleged no fact showing he has a personal stake in the outcome of his challenge to that section of Board Policy 03.91 which prohibits sexually explicit images and, therefore, has failed to state a case or controversy to invoke the jurisdiction of this Court. Thus, by his allegations with respect to the prohibition of sexually explicit images, plaintiff has failed to state a claim on which relief can be granted.

The Court also notes plaintiff makes no allegation of any specific mail he was unable to send because of the five-letter outgoing indigent legal mail weekly limit nor does he claim he has ever been charged for postage. Nevertheless, assuming for purposes of argument that plaintiff has standing on these claims pursuant to plaintiff's allegation that he has been refused a waiver of the weekly limit and from his request for reimbursement of past postage charged by the prison, those claims will be addressed.

A prisoner's claim that interference with his legal mail violates his right of access to the courts is distinct from a claim that it violated his right to free speech. Pell v. Procunier, 417 U.S. 817, 821, 9 S.Ct. 2800, 41 L.Ed.2d 495 (1974). The Court construes plaintiff's claim to be a free speech claim and notes that plaintiff has not alleged his position as a litigant has been injured in any specific litigation. Therefore, he has failed to state an access to courts claim. Henthorn v. Swinson, 955 F.2d 351, 354 (5th Cir.), cert. denied, 504 U.S. 988, 112 S.Ct. 2974, 119 L.Ed.2d 593 (1992).

Lawful incarceration results in the necessary withdrawal or limitation of many privileges and, even, rights. Pell v. Procunier, 417 U.S. at 822, 9 S.Ct. at 2804. "The precise contours of a prisoner's right to free speech are . . . obscure[,]" but Supreme Court caselaw makes clear "that prisoners retain only those First Amendment rights of speech which are `not inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological objectives of the corrections system.'" Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (quoting Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974))).

When a prison policy affects First Amendment rights, the district court must inquire whether or not the policy furthers "an important or substantial governmental interest unrelated to suppression of expression [,]" such as an interest in prison security, and that "the limitation . . . must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). The limitation in this case is that prisoners may not mail, at State expense, anything they wish without limitations. The TDCJ policy challenged is content-neutral and is merely a limit on the amount of outgoing legal mail by indigent prisoners for which the State will subsidize the postage.

Although, as a practical matter, the State must pay for postage necessary to insure an indigent inmate's access to courts, see, Bounds v. Smith, 430 U.S. 817, 824, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), there is "no constitutional entitlement to [this] subsidy." Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir. 2002); Hershberger v. Scaletta, 33 F.3d 955, 956-57 (8th Cir. 1994) (indigent inmates do not have a right to free postage for personal mail); Van Poyck v. Singletary, 106 F.3d 1558 (11th Cir. 1997) (same); Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1985) (holding that prisoners "do not have a right to unlimited free postage"). Consequently, outside the sphere of access to courts, a state has no obligation to provide free postage to indigent inmates for any mail, and plaintiff's free-speech challenge to the five-letter weekly limit for indigent legal mail and the postage charged to inmates by the prison lacks an arguable basis in law and is frivolous.

CONCLUSION

Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed by plaintiff EDWIN ATTLEY SHIRLEY, JR., pursuant to Title 42, United States Code, section 1983 be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

IT IS SO RECOMMENDED.