March 23, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1924
ROBERT P. LENA,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Robert P. Lena on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Charles M. Wyzanski, Senior Litigation Counsel, Department of
Correction, on brief for appellees.
Per Curiam. Plaintiff Robert Lena, an inmate at the
Norfolk Correctional Institution in Massachusetts, challenges
the constitutionality of prison rules barring the receipt of
publications, ordered through the mail, that have not been
paid for in advance. See 103 NOR 403.25 ("All orders must
be pre-paid. Any order arriving with a balance due will be
returned to the company."). Below, plaintiff advanced two
claims: (1) that this policy abridged his rights under the
First Amendment; and (2) that prison officials violated his
due process rights by failing to follow applicable
procedures, see 103 CMR 481.16, prior to returning a "bill
later" book he had ordered. As plaintiff has offered no
sustained argumentation on appeal in support of either of
these claims, we affirm largely for the reasons recited by
the Magistrate-Judge in her decision dated July 16, 1993. We
note only the following.
With respect to plaintiff's First Amendment claim, it is
clear that the restriction on "bill later" materials is
"reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. 78, 89 (1987); see Thornburgh v.
Abbott, 490 U.S. 401, 413 (1989) (prison restrictions on
incoming correspondence are to be assessed under Turner
test). The superintendent here explained that the pre-
payment requirement was implemented in order to prevent
inmates from committing fraud on businesses and obligating
funds beyond their means. Contrary to plaintiff's
contention, the legitimacy of these justifications "cannot
seriously be questioned." Rodriguez v. James, 823 F.2d 8, 12
(2d Cir. 1987). Applying the four criteria enumerated in
Turner, see 482 U.S. at 89-91, other courts have uniformly
upheld restrictions similar to that involved here on First
Amendment grounds. See, e.g., Rodriguez, supra (rule
requiring that all outgoing mail addressed to commercial
entities be submitted in unsealed form for inspection, to
ensure that all items ordered have been prepaid); Theriault
v. Magnusson, 698 F. Supp. 369, 371-72 (D. Me. 1988) (rule
requiring that all outgoing correspondence be placed in
envelopes embossed with prison legend to deter fraud on
businesses); Gardner v. Dalimonte, 1991 WL 71034 (Magis. W.D.
Mich. 1991) (ban on book-club memberships); see also Eckford-
El v. Toombs, 760 F. Supp. 1267, 1271 (W.D. Mich. 1991)
("Prison officials are justified in forbidding inmates from
entering into certain kinds of credit arrangements.")
(dicta).
With respect to plaintiff's due process claim, we need
not decide whether the pertinent state regulations suffice to
establish a property or liberty interest. It is in any event
clear that plaintiff received all the process that was due.
The fact that he was not provided with prompt, written notice
of the book's return, as required by the regulations, is
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without consequence. Plaintiff was eventually so notified
and was able to pursue an appropriate appeal to the
superintendent. In Procunier v. Martinez, 416 U.S. 396
(1974), the Court upheld restrictions on incoming mail that
required "that an inmate be notified of the rejection ...,
that [he] ... be given a reasonable opportunity to protest
that decision, and that complaints be referred to a prison
official other than the person who originally disapproved the
correspondence." Id. at 418-19. Each of these safeguards
was observed here. Contrary to plaintiff's contention, the
prison regulations did not require a hearing prior to the
book's return.
Plaintiff's central argument on appeal consists of an
equal protection claim that was not presented below.
"[T]heories not raised squarely in the district court cannot
be surfaced for the first time on appeal." McCoy v.
Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st
Cir. 1991), cert. denied, 112 S. Ct. 1939 (1992). We find
the claim of dubious merit in any event.
Affirmed.
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