United States Court of Appeals,
Fifth Circuit.
No. 91-6237.
Summary Calendar.
Kenneth Gregory THOMPSON, Jr., Plaintiff-Appellant,
v.
Linda PATTESON, et al., Defendants-Appellees.
March 5, 1993.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Kenneth Gregory Thompson, Jr. (Thompson), an inmate in a Texas state
prison, brings this appeal from the dismissal pursuant to 28 U.S.C. § 1915(d) of his civil rights suit
challenging the withholding of certain sexually explicit publications that he ordered through the mail.
We affirm.
Facts and Proceedings Below
Thompson, an inmate at the Darrington Unit state prison in Rosharon, Texas, commenced this
civil rights suit with a pro se complaint on October 16, 1991, alleging a deprivation of his
constitutional rights in the withholding of certain books and magazines deemed to be impermissible
under prison regulations because they would encourage deviate, criminal sexual behavior. He sought
declaratory and injunct ive relief, as well as compensatory and punitive damages, against James A.
Lynaugh (Lynaugh), former director of the Texas Department of Corrections (TDC) (predecessor
to the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID)); Linda Patteson
(Patteson), chief coordinator of the Mail System Coordination Panel; Linda Safley (Safley),
supervisor of the Darrington Unit mail system; and Stella Whitlock (Whitlock) and Stacy Laird
(Laird), mail clerks at the Darrington Unit prison.
Thompson's complaint alleges that in April 1991 he ordered through the mail ten paperback
books and four back issues of Penthouse Letters magazine. When the books arrived two months
later, Whitlock informed him that only two of the ten had been approved for Thompson to receive.
The other books had been rejected under Rule 3.9.10.6 of the TDC correspondence rules, which
allows denial of publications for which "a specific factual determination has been made that the
publication is detrimental to prisoner's rehabilitation because it would encourage deviate criminal
sexual behavior." Rule 3.9.10.6 further provides: "Publications shall not be excluded solely because
they have sexual content. Publications that contain graphic depictions of homosexuality,
sodo-masochism [sic], bestiality, incest or sex with children will ordinarily be denied. Publications
that are primarily covering the activities of any sexual or political rights groups or organizations will
normally be admitted." According to the complaint, Tho mpson requested and received a written
notification specifying the reasons for denial of each publication. The notice identified particular
pages of each book that contained graphic depictions of sex with a child, graphic depictions of incest,
or graphic depictions of women engaging in homosexual activity. The notice also stated with regard
to each book that it did not qualify for clipping under Rule 3.9.11.2, which obligates the prison
officials, at the prisoner's request, to remove the objectionable material only if it is contained on five
or fewer pages.
Thompson protested to Whitlock and Laird that the denial of these books was arbitrary,
because other inmates received publications such as Playboy, Penthouse, Genesis, and Velvet
magazines with the identical sexual subject matter. Whitlock and Laird allegedly acknowledged the
truth of his observation, but maintained that they had no choice but to follow departmental directives.
Thompson appealed the decision to the Director's Review Committee (DRC), which upheld the denial
of the books.
In July 1991, two of the issues of Penthouse Letters ordered by Thompson arrived in the mail.
(The other two had been discontinued.) Safley informed Thompson that these magazines had also
been denied under Rule 3.9.10.6. Again, Thompson was given a written notification identifying the
pages containing objectionable material, in this instance graphic depictions of women engaging in
homosexual activity and graphic depictions of sadomasochistic bondage. When Thompson reiterated
his objection about the arbitrariness of the denial, Safley allegedly agreed with him but explained that
Playboy and Penthouse had prevailed in lawsuits against TDCJ-ID, allowing their publications to be
delivered to inmate subscribers without being reviewed. Penthouse Letters was apparently not
included in the lawsuit. Safley also allegedly told Thompson that since the DRC had already reviewed
the two magazine issues, the decision was not appealable. A week later, Thompson was similarly
thwarted in his attempt to receive two issues of Adams Girls International magazine. These were
denied because they graphically depicted male and female homosexuality. One of these issues,
however, was subsequently given to Thompson after three pages containing objectionable material
were clipped out.
Thompson thereupon wrote to both Patteson, who was in charge of the DRC, and Lynaugh,
explaining that the correspondence rules were being applied inconsistently and in violation of his
rights. Neither responded nor took corrective action.
Thompson's complaint alleged four causes of action: (1) that the promulgation and
enforcement of the correspondence rules violated his First Amendment rights by denying him
publications while allowing similarly situated inmates to receive publications of the same nature, and
by infringing on his freedom of expression in allowing his access to publications to be governed by
prison officials' standards of decency rather than his own; (2) that the defendants had violated the
Fourth Amendment by depriving him of publications that were his private property while permitting
other inmates to retain similar property; (3) that the defendants had violated the Due Process Clause
of the Fourteenth Amendment by depriving him of his property with procedures that were inadequate
because they included no showing that the rehabilitative or security concerns of receiving sexually
oriented material were different or greater for him—an inmate not incarcerated for a sex
offense—than for other inmates allowed to receive comparable material; and (4) that the defendants
had violated the Equal Protection Clause by treating him unequally in the seizure of his property
relative to the other inmates.
Thompson filed an application to proceed in forma pauperis and moved for the appointment
of counsel. On October 30, 1991, the district court granted Thompson in forma pauperis status and
dismissed the suit pursuant to 28 U.S.C. § 1915(d), concluding that the complaint had "no arguable
basis in law and fact." The district court noted in its dismissal order that Rule 3.9.10.6 was part of
the correspondence rules promulgated and approved in the litigation culminating with Guajardo v.
Estelle, 568 F.Supp. 1354 (S.D.Tex.1983), and that because under those cases Thompson's First
Amendment rights did not override the institution's security and administrative interests, Thompson
had not demonstrated a constitutional violation. Thompson brings this appeal from the district court's
dismissal.
Discussion
Section 1915(d) authorizes dismissal of an in forma pauperis proceeding if the district court
is "satisfied that the action is frivolous or malicious." Though a complaint is not frivolous for the
purposes of section 1915(d) merely because it fails to state a claim according to the standards of
Fed.R.Civ.P. 12(b)(6), Nietzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989),
it is frivolous if it lacks an arguable basis in law or fact. See Ancar v. Sara Plasma, Inc., 964 F.2d
465, 468 (5th Cir.1992). District courts are afforded broad discretion in making this determination.
Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 417, 107
L.Ed.2d 382 (1989).
As noted by the district court, Thompson's claims are to a large degree foreclosed by the
resolution of the prisoner correspondence issues in the Guajardo litigation. In Guajardo v. Estelle,
580 F.2d 748 (5t h Cir.1978), this Court considered prison officials' authority to censor incoming
publications that they considered pornographic. In rejecting the view that prison officials could ban
only materials that had been judicially declared obscene, i.e., that the plaintiffs' First Amendment
rights were unaffected by the individuals' confinement and status as prisoners, we held that such rights
"cannot be evaluated without reference to that environment and to the type of audience it involves."
Id. at 762. Noting that nonconsensual homosexuality was a significant problem in Texas prisons that
authorities undoubtedly had a legitimate rehabilitation interest in preventing, and that the introduction
of pornographic material could exacerbate the situation, we concluded that officials could, consistent
with the First Amendment, limit access to sexually explicit material. Because the l imits on the
inmates' First Amendment rights could not be guided solely by "the whims of administrators," we set
forth the following guidelines: "Before delivery of a publication may be refused, prison administrators
must review the particular issue of the publication in question and make a specific, factual
determination that the publication is detrimental to prisoner rehabilitation because it would encourage
deviate, criminal sexual behavior. Prisoners must, of course, be allowed to appeal that decision
through proper administrative channels." Id. (citations omitted).
These guidelines were formalized as Rule 3.9.10.6, which was invoked to withhold
Thompson's books and magazines. The additional language from Rule 3.9.10.6 quoted above, i.e.,
the indications that graphic depictions of homosexuality, sadomasochism, and incest would ordinarily
be denied whereas publications primarily covering the activities of sexual rights groups would
normally be admitted, was added as part of a settlement agreement in the same litigation. The
settlement was approved as fair and reasonable. See Guajardo v. Estelle, 568 F.Supp. 1354, 1364
(S.D.Tex.1983).
Thompson neither contends that the defendants failed to make the specific finding called for
by Rule 3.9.10.61 nor asks t his Court to overturn that finding, i.e., he does not argue that the
1
He does apparently argue that under the circumstances the prison officials' finding that the
material would encourage deviate criminal sexual behavior cannot be accepted because they have
allowed similar material to other inmates and have not made any special finding that Thompson's
rehabilitative needs are greater than the other inmates', and that without such a special finding the
withholding of his books and magazines deprives him of due process. This argument rests on a
premise of disparate treatment that we discuss infra. However, to the extent that his argument
also suggests that due process entitled him to a more particularized finding attuned to his own
criminal history and behavior while in custody, it is contrary to the rationale of Guajardo. Access
to sexually explicit materials is restricted not merely in order to promote the rehabilitation of the
particular recipient from his past offenses, but to maintain order and safety in an overall
environment in which sex offenses are a continuing threat. See Guajardo, 580 F.2d at 762 ("We
are not willing to condone the introduction of material into the prison that would exacerbate the
situation [of nonconsensual homosexuality].") (emphasis added); see also Thornburgh v. Abbott,
490 U.S. 401, 412, 418, 109 S.Ct. 1874, 1881, 1884, 104 L.Ed.2d 459 (1989) (noting that in
considering the probable impact of accommodation of an inmate's asserted constitutional right to
publications, courts must be aware of the "ripple effect" caused by the likelihood that the material
will circulate within the prison). Rule 3.9.10.6 calls only for a finding that the material would
encourage deviate sexual criminal behavior; it does not require a finding that the particular
recipient is likely to engage in such behavior. Guajardo endorsed this as a valid accommodation
of inmates' First Amendment rights to obtain these materials through the mail and thus necessarily
also decided that the procedure was an adequate one for whatever property interests inmates
acquire in the publications by ordering them through the mail.
defendants withheld material not properly covered by Rule 3.9.10.6. He also does not challenge the
general groupings contained in the provisions added to Rule 3.9.10.6 by the settlement agreement.
Rather, his First Amendment claim appears to be a facial challenge to the initial rule itself: he argues
that the very practice of limiting access to sexually oriented materials embodied in the rule is
unconstitutional.2 This claim is foreclosed by Guajardo and by Supreme Court precedent. The
Supreme Court has stated that a prisoner 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, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495
(1974). In Guajardo, we struck this balance bet ween the prison's rehabilitation and security
objectives and the prisoner's First Amendment rights by authorizing the procedure followed by the
Darrington Unit prison here. The Supreme Court, in considering a First Amendment challenge to
comparable Federal Bureau of Prison regulations, has more recently affirmed that courts effect the
proper balance by scrutinizing such regulations only under a reasonableness standard: "[s]uch
regulations are "valid if [they are] reaso nably related to legitimate penological interests.' "
Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 1881, 104 L.Ed.2d 459 (1989) (quoting
Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)). Our Guajardo
decision long ago settled that the general practice authorized by Rule 3.9.10.6 fits easily within this
standard.
The remainder of Thompson's claims, though given various labels, are all in essence equal
protection challenges; he contends that he was subjected to disparate treatment by the prison
authorities in that other inmates were allowed to receive publications of comparable content. He does
not allege, though, that he was denied access to publications such as Playboy, Penthouse, and Velvet
that were permitted to other prisoners, or that other prisoners would have been allowed to receive
the books and magazines he ordered. His complaint contains no suggestion whatsoever that he was
subject ed to discriminatory treatment in the sense of being treated differently because of some
2
As stated in his complaint, "the correspondence regulations permits a minority to decide what
is good for the majority, notwithstanding that the freedom of choice and the freedom of the
printed word is entitled to the greatest protection."
personal or class characteristic such as race o r religion, or because of any other improper motive.
Rather, his complaint in substance alleges discrimination against the publications he wishes to
procure. However, as noted above, he does not allege that the defendants made a subject-matter
distinction not authorized by the correspondence rules; insofar as Thompson's complaint reveals, the
defendants' application of the rules to the publications he ordered is unobjectionable except when
viewed in conjunction with the defendants' other screening decisions.
We think it is entirely clear that such an equal protection claim has no arguable merit. The
objectives being pursued by the defendants were the legitimate and neutral ones of preserving prison
security and promoting rehabilitation, and in their judgment exclusion of Thompson's books and
magazines furthered those objectives. The rules necessarily confer a certain degree of discretion on
the prison authorities in making this determination, and absent any allegation of an improper motive,
a mere claim of inconsistent outcomes in particular, individual instances furnishes no basis for relief.
As the Abbott Court noted, "greater consistency might be attainable only at the cost of a more
broadly restrictive rule against admission of incoming publications." Abbott, 490 U.S. at 417, 109
S.Ct. at 1883 n. 15.
For the foregoing reasons, we conclude that the district court did not abuse its discretion in
adjudging Thompson's claims to be without an arguable basis in law or fact, and thereby subject to
dismissal under section 1915(d). Moreover, because Thompson's suit was not one alleging that his
publications were excluded because of an improper application of the correspondence rules, the
district court did not err in failing to examine the rejected publications before dismissing the suit. Cf.
Abbott, 490 U.S. at 419, 109 S.Ct. at 1885 (failure by the district court to m ake individual
determinations regarding the specific exclusions required remand).
Conclusion
Because Thompson has not shown that his claim had an arguable basis in law or fact, the
dismissal by the district court is
AFFIRMED.