Ayers v. Peterson

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 5, 2005
May 3, 2005

In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________

m 04-10623
Summary Calendar
_______________

RICHARD TERRANCE AYERS,

Plaintiff-Appellant,

VERSUS

JERRY PETERSON,
DIRECTOR-TDCJ-ID; ET AL.,

Defendants,

GARY JOHNSON; LINDA PATTESON; 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
______________________________
2
Before DAVIS, SMITH, and DENNIS, plaint seeks injunctive relief and compensatory
Circuit Judges. and punitive damages.3

JERRY E. SMITH, Circuit Judge:* In October 2001, the district court
dismissed the suit as frivolous. The following
Texas state prisoner Richard Ayers appeals May, however, a panel of this court reversed
a summary judgment in this action brought and remanded, holding that dismissal was
under 42 U.S.C. § 1983 in which he alleges premature because the court had not examined
that his First Amendment rights have been the materials in question. Ayers v. Peterson,
unconstitutionally infringed by prison officials’ No. 01-11554 (5th Cir. 2002) (unpublished).
pret extual refusals to allow him access to
certain literature that has been mailed to him.
Although summary judgment was proper as to On remand, defendants provided the court
certain materials, the district court erred in with copies of the challenged publications for
denying Ayers’s previously-filed motions for its review, in camera, and moved for summary
leave to amend his complaint and for leave to judgment. Before the court had ruled on the
supplement the appendices to his brief in summary judgment motion, however, Ayers
opposition to summary judgment. Accord- sought once again to amend his complaint to
ingly, we affirm in part and reverse in part. add claims relating to the allegedly pretextual
denials of three other publications4 he sought
I. to receive. At the time of Ayers’s motion,
On January 14, 1999, Ayers sued Jerry Pe- none of the defendants had been served with
terson, who was the director of the Texas or answered the complaint. Ayers’s motion
Department of Criminal Justice (“TDCJ”), and was denied; the district court stated that “the
members of the Director’s Review Committee denials [of access about which Ayers seeks to
(“DRC”). According to Ayers, the defendants
had deprived him of his First Amendment
rights by denying him access to certain 3
Ayers later agreed to dismiss any claims for
publicationsSSi.e., The Nigger Bible,2 an essay
damages against defendants in their official capac-
on slavery, and the June/Summer 1998 issue of ity because those claims would be barred by the
the Graterfriends Newsletter. On October 10, Eleventh Amendment. See Aguilar v. Tex. Dep’t
2000, Ayers amended his complaint to name as of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
defendants the new TDCJ director, Gary 1998) (“[A]s an instrumentality of the state,
Johnson; Linda Patteson, a member of the TDCJ-ID is immune from [] suit on Eleventh
Mail System Coordinator’s Panel; seven mem- Amendment grounds.”). To the extent that Ayers
bers of the DRC, and two mailroom employees claims damages from the defendants personally,
at the Robertson Unit. The amended com- qualified immunity arguably would protect them.
Because he cannot establish a constitutional vio-
lation, however, we do not reach the qualified im-
*
Pursuant to 5TH CIR. R. 47.5, the court has de- munity question.
termined that this opinion should not be published
4
and is not precedent except under the limited cir- These publications include The Vulture and
cumstances set forth in 5TH CIR. R. 47.5.4. the Nigger Factory, Walking on Borrowed Land,
and a copy of Volume 10 #4 of the magazine,
2
Referred to hereinafter as “The N . . . Bible.” Justice Xpress.

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complain] in 2001 were prior to this Court’s In the absence of any apparent or de-
dismissal of Plaintiff’s Amended Complaint.” clared reasonSSsuch as undue delay, bad
faith or dilatory motive on the part of
Also before the district court ruled on the movant, repeated failure to cure
summary judgment, Ayers sought leave to deficiencies by amendments previously
supplement the appendices to his brief in allowed, undue prejudice to the oppos-
opposition to summary judgment. Specifically, ing party by virtue of allowance of the
he tried t o comply with Federal Rule of Civil amendment, futility of amendment,
Procedure 56(e), which requires that all sum- etc.SSthe leave sought should, as the
mary judgment evidence be attested to as rules require, be “freely given.”
authentic. The district court did not specifi-
cally address that motion but noted in its order Id. (quoting FED. R. CIV. P. 15(a)). “Outright
granting summary judgment that all pending refusal to grant the leave without any justifying
motions were denied. reason appearing for the denial is not an exer-
cise of discretion.” Foman v. Davis, 371 U.S.
With respect to the motion for summary 178, 181 (1962).
judgment, the court held that Ayers had suf-
fered no constitutional injury, so his suit B.
should be dismissed. The court found that the The district court’s only explanation for
publications in question were rejected in pur- denying amendment was that “the denials in
suit of a legitimate penological objective, 2001 [o f the materials the denial of which
because they advocated racial violence or Ayers seeks to add to his complaint] were
otherwise threatened to the overall security of prior to this Court’s dismissal of Plaintiff’s
inmates and prison employees. Amended Complaint.” We do not see the
relevance of that fact. At the time of the
II. district court’s initial dismissal of this suit
Ayers asserts three issues on appeal: (which we reversed on appeal), no defendant
(1) that the district court erred in denying him had answered or even been served with the
leave to amend his complaint; (2) that the complaint. Further, as the district court noted,
court erred in not allowing him to supplement one of the alleged denials had not yet occurred
the appendices to his brief in opposition to at the time of the initial dismissal. We cannot
summary judgment; and (3) that summary see how justice or judicial economy is served
judgment was inappropriate because there by denying leave to amend on the district
were unresolved questions of material fact. court’s rationale.
We address each, in turn.
Nevertheless, we may affirm for any reason
A. supported by the record, even if not relied on
The denial of leave to amend pursuant to by the district court. See LLEH, Inc. v.
Federal Rule of Civil Procedure 15 is reviewed Witchita County, Tex., 289 F.3d 358, 364 (5th
for abuse of discretion. Lowrey v. Texas A & Cir. 2002). It is therefore possible that, in
M Univ. Sys., 117 F.3d 242, 245 (5th Cir. light of the court’s later decision to grant
1997). Nevertheless, that discretion is not summary judgment, it considered the proposed
unbounded: amendment to be futile. That is, the district
court could have concluded that just as it

4
believed the original three denials to be consti- IV.
tutional, the additional complaints were Ayers contends that it was error to grant
equally so. summary judgment. He contends that genuine
issues of material fact remain.
Unfortunately, none of the materials that
are subject to the denials about which Ayers A.
seeks to amend his complaint to reflect is We review a summary judgment de novo
present in the record. As we said when this and are bound by the same standards as those
case was last before this court, it would be employed by the district court. See Chaplin v.
premature for a district court to dismiss this NationsCredit Corp., 307 F.3d 368, 371 (5th
suit without having examined the materials. Cir. 2002). Summary judgment is appropriate
Ayers, No. 01-11554, at 3-4. The denial of only where “‘the pleadings, depositions, an-
leave to amend, therefore, cannot be properly swers to interrogatories, and admissions on
affirmed on the basis that the amendment file, together with the affidavits, if any,’ when
would be futile. Because we are unable to viewed in the light most favorable to the
discern any other legitimate justification for non-movant, ‘show that there is no genuine
the denial, we must reverse. Even though we issue as to any material fact.’” TIG Ins. Co. v.
affirm the grant of summary judgment on Sedgwick James, 276 F.3d 754, 759 (5th Cir.
Ayers’s remaining claims (see part IV.B., 2002) (quoting Anderson v. Liberty Lobby,
infra), we must remand for consideration of Inc., 477 U.S. 242, 249-50 (1986)). Once the
the claims Ayers wished to add by amendment. moving party has demonstrated that the
non-moving party has no evidence such that a
III. reasonable jury could support a verdict in its
As we explained above, Ayers sought leave favor, the non-moving party must put forth
to supplement the appendices to his brief in specific facts that demonstrate a genuine
opposition to summary judgment to comply factual issue for trial. Brennan v. Mercedes
with rule 56(e). Such decisions are reviewed Benz USA, 388 F.3d 133, 135 (5th Cir. 2004).
for abuse of discretion. See Barker v. Nor-
man, 651 F.2d 1107, 1128-29 (5th Cir. Unit A
July 1981). Specifically, it can constitute an B.
abuse of discretion where a district court fails Ayers alleges violations of his First Amend-
to afford a party the opportunity to remedy ment rights by the denial of his ability to re-
obvious defects in his summary judgment ceive the challenged publications. Although
materials. See id. prison inmates do not shed all of their consti-
tutional protections by virtue of their confine-
Neither the defendants nor the district court ment, such rights may be circumscribed to
challenged the authenticity of the documents in further legitimate penological objectives.
Ayers’s appendices. As a result, if the district Specifically, “a prison inmate retains those
court’s failure to allow Ayers to supplement First Amendment rights that are not inconsis-
the appendices constituted error, it was en- tent with his status as a prisoner or with the
tirely harmless, and reversing would have no legitimate penological objectives of the correc-
effect on the result. tions system.” Pell v. Procunier, 417 U.S.
817, 822 (1974). Consequently, when review-
ing a prison policy that restricts the flow of

5
publications to prisoners, we ask whether that district court found, and we agree, that the
policy is “reasonably related to legitimate publications were well within the realm of
penological interests.” Thornburgh v. Abbott, material that may be restricted because of their
490 U.S. 401, 404 (1989). potential to cause violence. The portion of the
June 1998 issue of the Graterfriends Newslet-
Defendants claim that the challenged mate- ter that was withheld from Ayers contained
rials were withheld pursuant to prison policy racial epithets. According to prison officials’
because they would create an increased danger expert judgment, to which we are required to
of physical harm to prisoners and prison em- give great deference,5 the presence of such
ployees or contain material of a racially inflam- material tends to encourage racial hatred and
matory manner that would encourage disrup- violence, so it is necessary to keep it out of the
tions such as strikes or riots. To determine prison to maintain safety and discipline.
whether such a proffered justification is suffi-
cient to withstand constitutional scrutiny, we Similarly, the essay on slavery titled “How
ordinarily would engage in the four-factor to keep a Black man down: From one White
analysis in Turner v. Safley, 482 U.S. 78, 89 slave owner to another” discussed subjugating
(1987). Under Turner, however, restrictions black slaves and even included a discussion of
on materials deemed likely to produce violence cross-breading “horses and niggers.” There
are permissible because they are rationally can be no doubt that the publication speaks for
related to valid penological objectives. See itself as to whether it contains material that
Chirceol v. Phillips, 169 F.3d 313, 316-17 could promote racial hatred and violence. The
(1999). Included in the materials that can be N . . . Bible is no less inflammatory. It uses
rightfully excluded as tending to promote the racial epithet of its title on nearly every
violence are those that promote racial or page of the book; discusses killing to gratify
religious hatred. See id. sexual desires; blames whites for infecting
Africans with syphilis; and categorizes Cauca-
Furthermore, Ayers is not making a facial sians as the problem of the Black people.
challenge to the policy; instead, he contends
that the regulation has been unconstitutionally These publications, coupled with the prison
applied in his case because prison officials officials’ expert judgment, represent such
have denied him access to the materials he strong evidence that the publications can be
desires under the pretext that they promote constitutionally excluded that it is very unlikely
violence and racial discord. Although the that any amount of countervailing evidence
question of the facial constitutionality of such could allow a reasonable fact-finder to con-
restrictions is one of law, the application of the clude otherwise. Nevertheless, we examine
restriction in individual cases necessarily the evidence submitted by Ayers to ascertain
involves questions of fact. See Rooks v. whether a sufficient quantum of evidence is
Zavares, No. Civ.A. 99-B-631, 2001 WL present to demonstrate a genuine issue of
34047959, *10 (D. Colo. Jan. 25, 2001). To material fact for trial.
defeat summary judgment, therefore, Ayers
must demonstrate that a genuine issue of
material fact remains for trial. 5
See O’Lone v. Estate of Shabazz, 482 U.S.
342, 349 (1987); Oliver v. Scott, 276 F.3d 736,
After reviewing the challenged material, the 745 (5th Cir. 2002).

6
 The only evidence Ayers submits that could ver, 276 F.3d at 745.
plausibly refute the evidence discussed above
is the copies of other allegedly racially inflam- The judgment is AFFIRMED in part, RE-
matory materials that are present in the prison VERSED in part; and REMANDED for con-
library. According to Ayers, the presence of sideration of the claims Ayers sought to bring
these materials belies the prison officials’ in his second amended complaint.
argument that the challenged publications have
been excluded because of their racially antago-
nistic character, and consequently, he reasons,
there is a genuine issue of material fact. These
available materials include a passage from I
Know Why the Caged Bird Sings, by Maya
Angelou, that uses the same racial epithet that
is replete in The N . . . Bible; and excerpts
from The Black Power Imperative that discuss,
inter alia, Dred Scott v. Sandford, 60 U.S.
393, 407 (1856) (stating that “[blacks] are
beings of an inferior order . . .”).

Ayers’s attempt to demonstrate a genuine
issue of material fact using these materials
fails. The materials in question are wholly
distinguishable from those he was denied.
Comparing the use of a reviled racial epithet in
The N . . . Bible with the book of a Pulitzer
Prize and National Book Award nominee who
is renowned for her civil rights work is like
equating “chalk and cheese.” Blakeley v.
Washington, 542 U.S. ___, 142 S. Ct. 2531,
2537 n.5 (2004) (Scalia, J.). It is equally
inapposite to compare the essay on slavery
that Ayers seeks (a document reminiscent of
the propagandistic and anti-Semitic Protocols
of the Elders of Zion) with Dred Scott.

Although all of the aforementioned doc-
uments involve race relations, no rational trier
of fact could deem them sufficiently similar as
to undercut the defendants’ judgment that the
challenged publications are likely to foment
racial violence. This conclusion is especially
inevitable in light of the substantial deference
we afford to the expert judgment of prison
officials. See O’Lone, 482 U.S. at 349; Oli-

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