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 42 U.S.C. § 1983, 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opinion should not be published and is not precedent except under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., 433 U.S. 119, 126
(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, 580 F.2d 748, 753 (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, 490 U.S. 401 (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, 985 F.2d 222, 225 (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., 81 F.3d 35, 36-37
(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, 477 U.S. 317, 322 (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, 580
F.2d at 762. 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, 190 F.3d 337, 353 (5th Cir.
1999) (comparing United States v. Salerno, 481 U.S. 739, 745
(“[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, 505 U.S. 833, 895 (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, 580 F.2d at 761-62. To this end, facilities may
censor the reading materials given to prisoners. See id.
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, 580 F.2d at 762.
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, 417 U.S. 817, 822 (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, 515 F.2d 322, 333
(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, 465 U.S. 668 (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, 441
U.S. 520, 550-51 (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, 490
U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 84, 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, 490 U.S. at 408.
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 id. at 413.
“Such regulations are ‘valid if [they are] reasonably related to
legitimate penological interests.’” Id. (quoting Turner, 482 U.S.
at 89).
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, 482 U.S. at 89-90.
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 id. at 90-91.
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, 902 F.2d
682, 684 (8th Cir. 1990) (citing Turner, 482 U.S. at 89) (“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, 490 U.S. at 405. The regulations
provided that each issue of a subscription publication must be
reviewed separately. See id. The warden could designate staff to
screen and approve incoming publications, but only the warden could
reject a publication. See id. at 406. 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 id. The notice had to refer to the
specific articles or materials considered objectionable. See id.
An inmate could appeal through the Bureau’s Administrative Remedy
Procedure. See Abbott, 490 U.S. at 406. 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
id. 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.’” Id. at 416
(quoting 28 C.F.R. §§ 540.70(b), 540.71(b) (1988)); see also
Guajardo v. Estelle, 580 F.2d 748, 755 (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, 490 U.S. at 414
(“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, 796 F.2d
79 (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, 796 F.2d at 82.
The Supreme Court in Bell v. Wolfish, 441 U.S. 520 (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. Id. at 550-51.
“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.’” Id. at 549.
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
Leachman v. Thomas
Combined Opinion