No. 98-60556
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60556
Summary Calendar
RAYFIELD JOHNSON,
Plaintiff-Appellant,
versus
FORREST COUNTY SHERIFF’S DEPARTMENT;
BILLY MAGEE, Sheriff,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CV-291-PG
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February 15, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Rayfield Johnson, Mississippi prisoner No. RO955, appeals
the district court’s dismissal of a complaint challenging a
Forrest County Jail policy which prohibits inmates from receiving
magazines by mail. Johnson argues that the jail’s policy is
overbroad because it violates his First Amendment right to
receive religious materials.
Prisoners retain only those First Amendment rights of speech
that are consistent with their status as prisoners or with the
legitimate penological objectives of the prison. Hudson v.
*
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this opinion should not be published and is not precedent except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.
No. 98-60556
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Palmer, 468 U.S. 517, 523 (1984). Regulations affecting the
sending of publications to prisoners are scrutinized to determine
whether they are “‘reasonably related to legitimate penological
interests.’” Thornburgh v. Abbott, 490 U.S. 401, 404 (1989)
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Federal
courts look to whether the challenged regulation is logically
connected to the legitimate government interests invoked to
justify it; whether alternative means of exercising the
restricted rights remain open to inmates; what impact
accommodation of the asserted constitutional right would have on
other inmates, guards, and prison resources; and the presence or
absence of reasonable but less restrictive alternatives. See
Turner, 482 U.S. at 89-91; Chriceol v. Phillips, 169 F.3d 313,
316-17 (5th Cir. 1999). Legitimate penological interests include
security, order, and rehabilitation. Procunier v. Martinez, 416
U.S. 396, 413 (1974); Adams v. Gunnell, 729 F.2d 362, 367 (5th
Cir. 1984).
Sheriff Magee cited the following reasons in support of
Forrest County’s ban on inmates’ receipt of magazines and
newspapers: the danger of fire; the possibility that inmates
could use magazine pages to stop toilets; and the potential for
messy cells. A blanket ban on newspapers and magazines on the
basis that they constitute a fire hazard or pose a threat to
plumbing violates the First Amendment. Mann v. Smith, 796 F.2d
79, 82-83 (5th Cir. 1986). Thus, we hold that the jail’s blanket
prohibition on the receipt of magazines and publications by mail
is not a legitimate penological regulation.
No. 98-60556
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Although Johnson never formally moved to amend his pleadings
to raise a claim of retaliation, before the defendants filed a
responsive pleading, Johnson clearly informed the district court
that jail employees had retaliated against him by tampering with
his mail. Under the principles of liberal construction accorded
pro se litigants,** the district court should have construed
Johnson’s statements at a Spears*** hearing and in his motion to
reinstate the complaint as an attempt to amend his complaint to
allege a claim of retaliation. See Adams v. Hansen, 906 F.2d
192, 196 (5th Cir. 1990); FED. R. CIV. P. 15(a). On remand, the
district court is directed to allow Johnson an opportunity to
amend his pleadings to state a claim of retaliation.
For the foregoing reasons, the order of dismissal is vacated
and the case is remanded for proceedings consistent with this
opinion.
VACATED AND REMANDED.
**
Haines v. Kerner, 404 U.S. 519, 520 (1972).
***
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).