UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-20209

MATTHEW JAMES LEACHMAN,

Plaintiff - Appellant,

VERSUS

TOMMY B. THOMAS,

Defendant - Appellee.

Appeal from the United States District Court For the Southern District of Texas (H-97-CV-1722) August 9, 2000

Before DAVIS, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:1

In this pro se civil rights suit for injunctive and

declaratory relief under

, Matthew James Leachman

(“Leachman”), a detainee in the Harris County Jail (the “Jail”),

appeals the district court's grant of summary judgment to Harris

County Sheriff Tommy B. Thomas (“Sheriff Thomas”). We affirm.

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND AND STANDARD OF REVIEW

Leachman's complaint centers on the Jail's policies concerning

prisoners' rights to receive and to keep: publications, greeting

cards, and envelopes.2 We afford prison officials wide deference

in establishing and enforcing their regulations. See Jones v.

North Carolina Prisoners' Labor Union, Inc.,

(1977). We must uphold prison restrictions if they are reasonably

related to a facility's legitimate penological interest in such

areas as security, order, and rehabilitation of the inmates. See

Guajardo v. Estelle,

(5th Cir. 1978).

In order to determine what regulations meet the penological

interest standard, courts employ the four factor test enunciated in

Thornburgh v. Abbott,

(1989):

1. Whether the penological objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective;

2. Whether there are alternative means of

2 Although in the district court Leachman challenged the Jail's policy forbidding prisoners from receiving colored pens, pencils, and highlighters, he does not address these items in his briefs to this court. Leachman has therefore waived these issues on appeal. See Yohey v. Collins,

(5th Cir. 1993). Moreover, Leachman expressly waived his challenge to the Jail's ban on prisoners' receiving stationery. We address Leachman's summarily briefed challenge to the Jail's ban on perfumed letters in our discussion of the greeting card policy. See discussion infra Part II and note 4. Leachman makes a subsidiary argument that the district court denied him a fair hearing on summary judgment. This allegation is without merit. We find no error in the district court's handling of this matter.

2 exercising the rights that remain open to inmates;

3. What impact the accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison, and

4. Whether there are ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.

See id. at 414-18. The district court ruled on summary judgment

that each challenged regulation met this test.

We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the party

opposing the motion. See Hall v. Gillman, Inc.,

(5th Cir. 1996). Summary judgment is appropriate only if the

record discloses “that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v.

Catrett,

(1986). We address each of Leachman's

complaints in turn.

DISCUSSION

I. Publications

Leachman challenges five Jail regulations concerning

prisoners' receiving and accumulating publications: (1) the Jail's

requirement that an inmate seek prior approval from the Jail

Librarian before ordering a publication; (2) the Jail's “Publishers

Only” policy that, according to Leachman, forbids prisoners from

directly receiving a publication from anyone other than the

3 publication's publisher; (3) the Jail's requirement that an inmate

prepay for publications and receive a letter from the publisher

confirming this prepayment; (4) the Jail's prohibition on inmates'

retaining more than three publications at a time; and (5) the

Jail's prohibition on inmates' receiving and/or possessing

hardbound books.

A. Prior Approval

Leachman insists that the prior approval policy is

unconstitutional in that it allows Jail officials to refuse

inmates' requests for publications without first reviewing and

making a factual determination that the publications are

detrimental to a valid penological interest. See Guajardo,

. Leachman's attack on the Jail's prior approval

policy fails both as a facial and an “as applied” challenge. We

note first that there is some question as to the proper standard of

proof for when a plaintiff asserts a facial challenge to a statute

or regulation. See Okpalobi v. Foster,

(5th Cir.

1999) (comparing United States v. Salerno,

(“[T]he challenger must establish that no set of circumstances

exists under which the Act would be valid”) with Planned Parenthood

of Southeastern Pa. v. Casey,

(stating that

abortion regulation is facially invalid if “in a large fraction of

cases in which [it] is relevant, it will operate as a substantial

obstacle to a woman's choice to undergo an abortion.”). We need

4 not resolve this apparent conflict here, however, because the

record indicates clearly that the prior approval policy would meet

constitutional muster under both tests. There could be many

instances where the title and publisher would clearly indicate the

suitability of the publication.

Turning to the constitutionality of the regulation as applied

in this case, Leachman has failed to demonstrate a cognizable

violation of his constitutional rights. Overarching this

discussion of the prior approval policy is the established fact

that the Jail has a valid penological interest in preventing the

dissemination of literature that would have a detrimental effect

upon the safety and/or rehabilitative interests of the facility.

See Guajardo,

. To this end, facilities may

censor the reading materials given to prisoners. See

Leachman presented evidence that the Jail denied his request

for a book published by Jove Publications entitled Soldier of

Fortune. This is the only example in the record of Leachman's

having been denied a request for a publication. Leachman opines

that the Jail denied his request on the mistaken belief that he was

requesting Soldier of Fortune magazine, a prohibited work. We note

first that this request was submitted and denied months after

Leachman filed suit which suggests that he had not suffered a

cognizable injury at the time he filed suit. Moreover, Leachman

did not avail himself of the Jail's appeals process in which he

5 could have explained that he was not requesting the magazine and

presented his case for why he should be allowed to purchase the

allegedly innocuous book. In addition, if Leachman's supposition

is right, a Jail official made a reasonable although perhaps

erroneous factual determination that this book was “Not Authorized”

and therefore justifiably denied the request. Ultimately, Leachman

has failed to produce any evidence that the Jail applied this

statute in an unconstitutional manner.

B. Publishers Only Rule

Leachman is incorrect in asserting that the Jail has a

“Publishers Only” rule that prohibits him from purchasing

publications from any source other than publishers, i.e.

bookstores. Although direct purchasing through a publisher

appears to be the Jail's preferred means of inmates' acquiring

publications, evidence indicates that an inmate may accept reading

materials from a bookstore. Accordingly, such a policy meets

constitutional muster under Guajardo and by extension Thornburgh:

[T]he security risk created by permitting inmates to receive books from friends or relatives supports this [Publishers Only] rule. We also agree that with respect to legal material the defendant institution's willingness to include bookstores as publications suppliers and the prison law library sufficiently alleviate any infringement on the right of access to the court.

Guajardo,

.

C. Prepayment

6 The district court found that the Jail implemented its

prepayment requirement in order to prevent inmates from defrauding

book sellers by ordering and receiving publications without paying

for them. That a jail has a legitimate penological interest in

preventing incarcerated individuals from committing further crimes

is axiomatic. See Pell v. Procunier,

(1974).

Similarly, we agree with the district court that this regulation

meets the second prong of Thornburgh because it does not preclude

inmates from purchasing publications, thus obviating the need for

alternative means of asserting this right.

We agree with the district court that Leachman has produced no

credible evidence calling into question the facts that publishers

are clearly at risk from inmate fraud and that there are no

adequate alternative means to address this problem.

D. Three Publications Rule

We agree with the district court that under Thornburgh the

Jail has articulated a significant penological interest in avoiding

fire hazards by limiting the number of publications an inmate may

possess at any given time. See Cruz v. Hauck,

(5th Cir. 1975) (holding that county jail's limitation on number of

books kept by prisoners was reasonable in light of duty to maintain

security and protect against the dangers of fire).

Leachman's assertion that the exception to the Three

Publications Rule for religious publications violates the

7 Establishment Clause is wholly without merit. Indeed, as the

district court indicated, this exception is properly designed to

avoid infringing upon inmates' rights to religious expression. The

regulation neither requires inmates to possess religious materials,

nor prohibits them in any way from doing so. Leachman has produced

no evidence that the exception's primary effect is to advance

religion in violation of the Establishment Clause or that it

creates an excessive “entanglement” between church and state. See

Lynch v. Donnelly,

(1984). Moreover, the exception is

content neutral in that it also allows inmates to acquire an

unlimited number of publications related to correspondence classes.

E. Hardbound Books

Leachman does not dispute that hardbound books pose a

substantial threat to prison security as they present a ready

vehicle for the smuggling of contraband. See Bell v. Wolfish,

(1979) (“It hardly needs to be emphasized that

hardback books are especially serviceable for smuggling contraband

into an institution; money, drugs, and weapons easily may be

secreted in the bindings.”) Moreover, as the district court noted,

the purchase of softbound books in lieu of hardbound books is

certainly a reasonable alternative means of exercising prisoners'

rights. Additionally, a policy exists for seeking an exception to

the rule for hardbound books necessary for correspondence classes.

Similarly, there is an exception to the rule for publications from

8 the Church of Jesus Christ of Latter Day Saints and the Gideons

that each produce their respective religious tracts only in

hardbound form.3 Leachman simply fails to demonstrate an issue of

material fact as to the reasonableness of this prohibition under

Thornburgh.

II. Greeting Cards

Leachman contends that Sheriff Thomas failed to demonstrate a

legitimate penological interest in banning greeting cards and that

the Texas Commission on Jail Standards has not expressly banned

greeting cards in its correspondence regulations. See 37 TEX.

ADMIN. CODE § 291.2.4 The record clearly indicates that the thick

card stock used in making greeting cards can be used both to

smuggle contraband between its folds and as “blotter paper” that

can be infused with liquified drugs. Undisputed summary judgment

evidence shows that card stock's thickness can thwart the “flex

test5” used by the Jail to search for contraband in incoming mail.

3 For the same reasons as stated in D. above, this is not a violation of the Establishment Clause. 4 Leachman insists that the Jail's ban on perfumed letters is similarly void under this analysis. We disagree. Sheriff Thomas demonstrated that perfumed letters pose a drug trafficking risk by masking smells and can lead to inmate unrest as prisoners may fight over such desirable items. Leachman does not demonstrate a valid personal liberty interest in receiving perfumed letters that would outweigh these penological interests. Thus, we conclude that the ban on perfumed letters is a legitimate exercise of the Jail's authority under Thornburgh. 5 The record indicates that although Jail officials open and search prisoners' mail, “flexing” the items to test for rigid contraband is an important adjunct to the screening process.

9 Moreover, Jail regulations permit receiving greeting cards

photocopied onto regular paper and therefore maintain an alternate

means of exercising the right to receive greeting cards. Finally,

this regulation is consistent with the cited correspondence

regulations. Despite Leachman's unsupported protestations to the

contrary, this regulation unequivocally meets Thornburgh muster.

III. Envelopes

Leachman insists that the Jail arbitrarily seizes all

envelopes sent to prisoners. Leachman is mistaken.

The record indicates that smugglers can mix liquid drugs with

the glue used to fasten envelopes. Similarly, individuals can hide

various forms of contraband in the insulation of padded envelopes.

Finally, lewd drawings inscribed on the outside of letters can pose

a significant risk to the prison community by promoting deviant

sexual activity. The prevention of each of these potential harms

is a valid penological interest. Leachman does not contest this;

but rather, insists that all envelopes are seized without analysis

by prison officials. Sheriff Thomas presented overwhelming

evidence that envelopes are given to inmates; and that even in

those instances when Jail officials seize envelopes, they are

careful to excise the illegal content and to give the inmates any

remaining portions of the envelope.6 Ultimately, Leachman's

6 The record indicates that in most instances this entails the clipping off of the address and return address portions of the envelope, which officials then turn over to the inmate along with the contents of the envelope.

10 unsubstantiated, anecdotal evidence of universal seizure is

insufficient to create a material issue of fact that the Jail's

envelope policy violates his constitutional rights.

AFFIRMED.

Dennis, Circuit Judge, dissenting.

“Prison walls do not form a barrier separating prison inmates

from the protections of the Constitution[;] nor do they bar free

citizens from exercising their own constitutional rights by

reaching out to those on the inside[.]” Thornburgh v. Abbott,

(1989) (citing Turner v. Safley,

, 94-

99 (1987)). “[P]ublishers who wish to communicate with those who,

through subscription, willingly seek their point of view have a

legitimate First Amendment interest in access to prisoners.”

Abbott,

.

Regarding incoming publications, material requested by an

individual inmate but targeted to a general audience, regulations

affecting the sending of a publication to a prisoner must be

analyzed under the Turner reasonableness standard. See

.

“Such regulations are ‘valid if [they are] reasonably related to

legitimate penological interests.’”

(quoting Turner,

).

Under the Turner standard, in determining reasonableness, (1)

there must be a valid, rational connection between the regulation

11 and the legitimate governmental interest put forward to justify it;

the logical connection between the regulation and the asserted goal

cannot be so remote as to render the policy arbitrary or

irrational; the governmental objective must be a legitimate and

neutral one; and the regulations restricting inmates’ First

Amendment rights must operate in a neutral fashion, without regard

to the content of the expression. See Turner,

.

Other factors relevant in determining the reasonableness of a

prison restriction are (2) whether there are alternative means of

exercising the asserted constitutional right that remain open to

inmates; (3) the impact accommodation of the asserted First

Amendment right will have on guards and other inmates, and on the

allocation of prison resources generally; and (4) whether the

regulation represents an "exaggerated response" to prison concerns,

because an inmate claimant can point to an alternative that fully

accommodates the prisoner’s rights at a de minimis cost to valid

penological interests. See

.

There are several prison regulations in question: the prior-

approval and prior-payment regulation; the hardcover publication,

greeting card, and perfumed letter bans; and the envelope

destruction policy.

The pre-approval pre-payment regulation in question provides

that, in order to receive any publication, book or magazine by

mail, (1) an inmate must submit a request for prior approval to the

12 jail librarian; (2) the request must contain the name of the

publication and the publisher; (3) if the request is approved, the

inmate must have the publisher submit, on its letterhead, a

document showing proof of payment in full directly to the Sheriff’s

Department Mail Room; and (4) an inmate may have no more than three

publications in his possession at one time, but this limitation

does not apply to religious and correspondence course materials.

According to a deputy’s affidavit, the jail librarian or mail

deputy bases his approval of an inmate’s request for a publication

upon whether the publication, according to its title and publisher,

appears to the deputy to be detrimental to the order and security

of the prison. An inmate may appeal the denial of a request to the

Jail Captain within seven days of the denial. According to another

deputy’s affidavit, the prior approval and proof of payment rule is

designed to prevent inmates from receiving inflammatory or

pornographic materials, ordering large numbers of publications

without intending to pay for them, creating fire hazards by

accumulating excess reading materials, arguing over the ownership

of particular publications, bargaining and bartering with

publications, and creating health and cleanliness problems.

Except for religious texts and for correspondence course

materials, an inmate may not receive or possess any hardcover book.

According to a deputy’s affidavit, the reason for the hardcover ban

is to prevent the smuggling of contraband into the jail.

Inmates are required to advise all persons who may write to

13 them that they are not allowed to receive greeting cards, pens,

pencils, markers, newspapers, magazines, books, stamps, envelopes,

obscene pictures, perfumed letters, packages, stickers, cash, or

anything that would be considered contraband. Greeting cards are

disallowed, according to a deputy’s affidavit, because they may be

split and used to smuggle contraband and they cannot be examined by

use of the flex test as other mail. Also, drugs in liquid form may

be painted on to cards. Perfumed letters may be used to disguise

drugs and may cause disruptions, according to a deputy’s affidavit.

With respect to envelopes, the department has no consistent policy,

except that, as a general rule, legal mail envelopes are given to

the inmates, pornographic and bubble-lined envelopes are not, and

inmates may request that addresses be torn off and delivered with

the contents.

Applying the principles of Thornburgh v. Abbott and Turner v.

Safley to the prison regulations in question, the regulations or

policies pertaining to envelopes, perfumed letters and greeting

cards appear to be reasonably related to legitimate security

interests, but the ban upon receipt of all hardcover books from any

source (except for correspondence courses and religious texts) and

the prohibition upon the receipt of any publication without pre-

approval and pre-payment do not satisfy the reasonable relationship

requirement, but rather constitute an exaggerated response to the

department’s rehabilitation and security concerns.

14 First, the pre-approval pre-payment procedure, which severely

limits the flow of all published information to prisoners and

completely bars any gift publications or any unrequested mail from

publishers, has no rational relationship with any legitimate

penological interest. The department’s policy of allowing the jail

librarian to approve or reject an inmate’s request for a

publication based solely on its title and the name of its

publisher, without examining the content of the publication, is not

rationally related to security, rehabilitation or any other

penological interest. The librarian cannot determine whether the

publication will be “detrimental to order and security” without an

individual examination of the material. Nor can he articulate any

rational basis for approval or disapproval without such an

examination. Instead, these regulations fairly invite prison

officials to apply their own personal prejudices and opinions as

standards for prisoner censorship and do not appear to be unrelated

to the suppression of expression. See Allen v. Higgins,

(8th Cir. 1990) (citing Turner,

) (“In light

of the fact that [prison official] Groose had not examined the

catalog before making his decision to disallow it, Groose could not

have reasonably assessed whether his conduct violated clearly

established law. Under these circumstances, we cannot say that the

exclusion of the government surplus catalog...was ‘reasonably

related to legitimate penological interests.’”). Consequently, in

15 the absence of the requested publication and the articulation of a

rational basis for disapproval based on individual examination, the

inmate’s right of appeal is purely illusory. Further, the

requirement of proof of prepayment on the publisher’s letterhead

additionally burdens the flow of First Amendment protected

information without being reasonably related to a legitimate

penological interest. There is no reason to believe that competent

publishers cannot properly assess the credit risks involved in

mailing publications to subscribers at prison addresses. On the

contrary, it appears that publishers in general have sought to

increase the flow of publications into prisons. In Thornburgh v.

Abbott, for example, the Court noted that the Association of

American Publishers, Inc., and numerous individual publishers had

argued that their First Amendment rights were violated by the

regulations promulgated by the Federal Bureau of Prisons, which

broadly permit federal prisoners to receive publications without

preapproval or prepayment from the outside, subject to prison

officials’ authority to reject individual publications detrimental

to security.

The federal prison regulations which the Supreme Court held

facially valid in Thornburgh v. Abbott generally permitted inmates

to subscribe to, or to receive, publications without prior

approval, but authorized the warden to reject a publication if it

was determined detrimental to the security, good order, or

16 discipline of the institution or if it might facilitate criminal

activity. The warden could not establish an excluded list of

publications. See Abbott,

. The regulations

provided that each issue of a subscription publication must be

reviewed separately. See

The warden could designate staff to

screen and approve incoming publications, but only the warden could

reject a publication. See

. The warden was required to

advise the inmate promptly in writing of the reasons for the

rejection, and had to provide the publisher or sender with a copy

of the rejection letter. See

The notice had to refer to the

specific articles or materials considered objectionable. See

An inmate could appeal through the Bureau’s Administrative Remedy

Procedure. See Abbott,

. The regulations required

the warden to permit the inmate to review the rejected material for

the purpose of appeal, unless it would pose a threat or detriment

to the security, good order or discipline of the institution. See

In Thornburgh v. Abbott the Court expressed that it was

“comforted by the individualized nature of the determinations

required by the regulation.....no publication may be excluded

unless the warden himself makes the determination that it is

‘detrimental to the security, good order, or discipline of the

institution or...might facilitate criminal activity.’”

at 416

(quoting

(b), 540.71(b) (1988)); see also

Guajardo v. Estelle,

(5th Cir. 1978)(prison rule

17 requiring inmates to secure prior approval before beginning

correspondence with any person within the general public was “akin

to a...prior restraint on expression [that] comes to a court with

a heavy presumption against its constitutional validity....[and]

was not essential to the state’s interest in security, order or

rehabilitation.”).

Second, the numerical possession limit of three publications

and the ban on an inmate’s receipt or possession of hardcover

publications do not appear to be rationally related to a legitimate

and neutral governmental objective. See Abbott,

(“The first Turner factor is...whether the governmental objective

underlying the regulations at issue is legitimate and neutral, and

that the regulations are rationally related to that objective.”).

Neither the numerical possession limit nor the hardback book ban

applies to correspondence course materials or religious texts.

Thus, each inmate may receive and possess an unlimited number of

hard and soft back religious texts and correspondence course

materials. Consequently, these regulations are neither neutral

nor rationally related to the purposes of controlling fire hazards

or contraband smuggling as the sheriff contends. Religious and

correspondence course texts are no less combustible than other

publications. Hardback publications mailed directly from

publishers, book clubs and bookstores are as little likely to

contain contraband as hard back religious and correspondence course

18 texts. For similar reasons, this court in Mann v. Smith,

(5th Cir. 1986), held that the Midland County, Texas jail’s

policy of banning newspapers and magazines violated the plaintiff’s

First Amendment rights:

Because the jail has a no smoking rule for inmates and because the jailers permit inmates to have other forms of paper and similar materials, the official rationale seems tenuous at best....The patently underinclusive nature of the regulation strongly suggests that it is indeed an exaggerated response; certainly it contrasts with the carefully tailored restriction on hardbound books that was upheld in Bell v. Wolfish itself. Perhaps the jail officials who established this policy had some very important and legitimate purpose that could not be accomplished without denying the inmates access to newspapers and magazines. If so, the defendants’ lawyers have not brought it to our attention, and we have not been able to imagine what it could have been.

Mann,

.

The Supreme Court in Bell v. Wolfish,

(1979)

upheld a policy, far less restrictive than the one at issue in the

present case, that limited prisoners’ receipt of hardback

publications to books which were mailed directly from publishers,

book clubs or book stores. The Court held that the policy was

reasonably related to legitimate penological interests because of

the prison’s concern about contraband concealed in hardback books

received by inmates from unidentified sources outside the facility

and the burden on prison officials to remove the covers to make

sure that contraband had not been secreted.

.

“However,” the Court quoted from the warden’s affidavit, “‘there is

relatively little risk that material received directly from a

19 publisher or book club would contain contraband, and therefore, the

security problems are significantly reduced without a drastic drain

on staff resources.’”

.

In sum, although the department had ample opportunity to

develop a record, it has offered no justification for its blanket

ban on the receipt of all gift publications, its prior restraints

upon the flow of information to prisoners by the requirements of

preapproval and prepayment of subscriptions, or its lack of

neutrality in banning all hardcover publications mailed from

publishers, book clubs and book stores, except from publishers of

religious and correspondence course texts. Consequently, there is

no valid, rational connection between the prison regulations and

the legitimate governmental interests put forward to justify them.

In view of the unlimited exceptions for all soft and hard back

religious and correspondence course publications, the logical

connection between the three publication possession limit and the

ban on hardcovers from all publishers, book clubs and bookstores

and the asserted goals of fire and contraband control is so remote

as to render the policy arbitrary and irrational. Thus, the

restrictions on inmates’ First Amendment rights do not operate in

a neutral fashion or without regard to the content of the

publications. There are no feasible alternative means open to

inmates for obtaining access to an adequate range of publications.

The prison regulations in question here represent an exaggerated

20 response to prison concerns because the claimant has pointed to an

alternative that fully accommodates the prisoner’s rights at a de

minimis cost to the valid penological interests —- a regulation

similar to C.F.R. §§ 540.70 and 540.71 permitting an inmate to

subscribe to, or to receive, a publication without prior approval,

but vesting authority in the warden to reject a publication if he

determines, after review of the publication, that it will be

detrimental to the security, good order, or discipline of the

institution or if it might facilitate criminal activity. It may be

reasonably inferred from the record that such an alternative would

not impose an undue burden or cost upon the department: the Harris

County Jail houses inmates awaiting trial or serving relatively

short sentences, most inmates will not be in the jail long enough

to acquire or to accumulate a substantial library, and the mail

deputy declared that he only receives approximately two requests

for pre-approval of a publication each month. See Appellee’s

Brief, at n. 4 (citing R-1, 353 (Meinhart Affidavit)) and n. 10.

Accordingly, the summary judgment should be reversed and the case

remanded for further proceedings.

21