Ayers v. Peterson

IN THE UNITED STATES COURT OF APPEALS Court of Appeals
United States
FOR THE FIFTH CIRCUIT Fifth Circuit
F I L E D
No. 06-10403 September 13, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk

RICHARD TERRANCE AYERS,

Plaintiff-Appellant,

v.

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
No. 1:99-CV-11

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*

*
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should not be published and is not precedent except under the limited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. 06-10403

Richard Ayers, a Texas prisoner, suedunder 42 U.S.C. § 1983 alleging that
he was denied access to three publications, i.e., Justice Express magazine, The
Vulture and the N-Factory, and Walking on Borrowed Land, on the allegedly
pretextual ground that the requested publications contained racially inflam-
matory material and were designed to achieve a breakdown of prisons through
inmate disruption such as strikes or riots. These claims were before the district
court following Ayers v. Peterson, 130 F. App’x 666 (5th Cir. 2005), in which we
affirmed summary judgment in favor of defendants regarding the denial of the
publications specified in Ayers’s original complaint but remanded for consider-
ation of claims he sought to bring in his second amended complaint, namely de-
nial of access to the publications named above.
Ayers contends the district court erred in (1) denying his motion to stay
and for limited discovery; (2) denying his third motion to amend his complaint;
(3) denying his motion to stay proceedings pending completion of disclosure; and
(4) granting summary judgment and dismissing the claims he had asserted in
his second amended complaint. As we explain, Ayers’s arguments are unavail-
ing.
The denial of discovery is reviewed for abuse of discretion. See Brown v.
Arlen Mgmt. Corp., 663 F.2d 575, 580 (5th Cir. Dec. 1981) (per curiam). The
district court did not abuse its discretion by denying Ayers’s motion, which
sought information regarding a claim that was not at issue.
Though a court should freely grant leave to amend, see FED. R. CIV. P.
15(a), “[a] district court acts within its discretion when dismissing a motion to
amend that is frivolous or futile.” Martin’s Herend Imports, Inc. v. Diamond &
Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999). In his third
motion to amend, Ayers sought to add a claim that does not satisfy the require-
ments of standing or ripeness, the addition of which would have been futile. The
court thus did not abuse its discretion in denying the motion. See United States
v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996).

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A denial of a motion for continuance brought under Federal Rule of Civil
Procedure 56(f) is reviewed for abuse of discretion. See Liquid Drill, Inc. v. U.S.
Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th Cir. 1995); Solo Serve Corp. v.
Westowne Assoc., 929 F.2d 160, 167 (5th Cir. 1991). A review of the record es-
tablishes that defendants complied with the scheduling order regarding the dis-
closure of relevant prison records, so the court did not abuse its discretion by
denying the motion.
We review a summary judgment de novo, applying the same standard as
did the district court. See Melton v. Teachers Ins. & Annuity Ass’n of Am., 114
F.3d 557, 559 (5th Cir. 1997). Summary judgment is proper where the pleadings
and summary judgment evidence present no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law. See FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Ayers alleges violations of his First Amendment rights by the denial of his
ability to receive the challenged publications. “[A] prison inmate retains those
First Amendment rights that are not inconsistent with his status as a prisoner
or with the legitimate penological objectives of the corrections system.” Pell v.
Procunier, 417 U.S. 817, 822 (1974). Accordingly, regulations affecting the send-
ing 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 con-
nected to the legitimate government interests invoked to justify it; whether al-
ternative 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. Phil-
lips, 169 F.3d 313, 316-17 (5th Cir. 1999). Restrictions on materials likely to

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produce violence are expressly permitted because they are rationally related to
valid penological objectives. Chriceol, 169 F.3d at 316-17. Included in the
materials that can be rightfully excluded as tending to promote violence are
those that advance racial or religious hatred. Id. Prison administrators’ judg-
ments regarding institutional security are accorded “great deference.” Oliver v.
Scott, 276 F.3d 736, 745 (5th Cir. 2002).
Defendants assert that the challenged publications were withheld pur-
suant to prison policy because they contain material of a racially inflammatory
nature that would encourage disruptions in the prison setting, including strikes
or riots. After reviewing the challenged publications, the district court found,
and we agree, that the publications were well within the realm of material that
may be restricted because of their potential to cause violence. Ayers does not
present any evidence disputing the findings regarding these publications and
has, accordingly, failed to demonstrate the existence of a genuine issue of mate-
rial fact.
AFFIRMED.

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