UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11554
Summary Calendar
RICHARD TERRANCE AYERS,
Plaintiff-Appellant,
versus
JERRY PETERSON, Director-Texas Department of Criminal Justice-
Institutional Division; DIRECTOR’S REVIEW COMMITTEE; MICHAEL
COUNTZ; JIM ZELLER; ROBERT OTT; WINSTON HOLD; MELTON BROCK;
HERMAN TEINERT; L.N. HODGES; RICHARD DEAL; JUDY SLOAN,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:99-CV-11)
_________________________________________________________________
May 30, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:
PER CURIAM:*
Richard Terrance Ayers, Texas inmate #468361, proceeding pro
se and in forma pauperis, appeals his civil rights complaint’s
being dismissed as frivolous. See 28 U.S.C. §§ 1915(e)(2)(B)(i) &
1915A(b)(1) (when prisoner litigant proceeding IFP, district court
shall dismiss action if determined to be frivolous). An IFP
complaint that lacks an arguable basis in fact or in law is
*
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this opinion should not be published and is not precedent except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.
frivolous. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). A
§ 1915 dismissal as frivolous is reviewed for abuse of discretion.
Id. at 734.
Ayers contends defendants violated his constitutional rights
by denying him publications and card stock paper delivered as
incoming prisoner mail. Regarding the former, he maintains the
dismissal prior to examining the denied publications was an abuse
of discretion.
Ayers’ claims for equitable relief have been rendered moot by
his transfer to another prison. See Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). And, his
challenge for the card stock paper does not state a constitutional
violation. See Richardson v. McDonnell, 841 F.2d 120, 122 (5th
Cir. 1988) (isolated incident of mail-tampering which does not
interfere with a party’s ability to file legal documents does not
state constitutional violation).
Moreover, Ayers has abandoned any challenge for the
publications “Going to Meet the Man,” “Death in a Promised Land,”
“Paradise,” “A Black Theology of Liberation,” “The Warriors,” “The
Journal of Prisoners on Prisons,” and “Rosewood”, as well as a
letter addressed to the National Black Congress. See Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). He
does, however, address the denial of three publications: an issue
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of the “Graterfriends” newsletter; an 18th century essay on
perpetuating slavery; and “The Nigger Bible”.
The district court noted that Ayers admitted that “some of the
requested publications had been banned by [the Texas Department of
Criminal Justice — Institutional Division] in 1992". Pursuant to
Ayers’ submissions in the record, it appears that, of the three
publications, only “The Nigger Bible” had been banned by prison
officials prior to Ayers’ request for its receipt. According to
Ayers, TDCJ-ID policy forecloses receipt of a publication by any
inmate once the denial of the publication has been upheld on review
by the Director’s Review Committee. The record does not reveal,
however, whether any other litigant has challenged the denial of
this publication.
Prisoners retain those First Amendment rights that are
consistent with their status as prisoners or with the legitimate
penological objectives of the prison. Hudson v. Palmer, 468 U.S.
517, 523 (1984). On the other hand, a prison regulation may
validly restrict material advocating racial hatred on the basis
that it causes a serious danger of violence. Chriceol v. Phillips,
169 F.3d 313, 316 (5th Cir. 1999).
On this record, it appears that the district court’s dismissal
as frivolous of Ayers’ claims concerning the denial of an issue of
the “Graterfriends” newsletter, an 18th century essay on
perpetuating slavery, and “The Nigger Bible” was premature because
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it appears the court did not examine the publications.
See Thornburgh v. Abbott, 490 U.S. 401, 419 (1989) (affirming
remand to district court for an examination of prison restrictions
on inmates’ receipt of publications as applied to specific
publications).
Accordingly, the judgment is AFFIRMED in part and REVERSED in
part, and this case is REMANDED for proceedings consistent with
this opinion concerning the three identified publications.
AFFIRMED in part; REVERSED in part; and REMANDED
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