IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2009
No. 07-41064 Charles R. Fulbruge III
Clerk
GEORGE MORGAN
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from a judgment denying relief in a habeas corpus case
brought under 28 U.S.C. § 2254 by Texas state prisoner George Morgan. Morgan
challenges a disciplinary proceeding in which he was charged with the use of
indecent or vulgar language in a note he mailed to opposing counsel in
connection with pending litigation. He says that the First Amendment protects
his vulgar pen from penalty and that the Fourteenth Amendment protects his
good time credits from loss. The district court denied relief, and we granted a
certificate of appealability (COA). We decide that the Texas Department of
No. 07-41064
Criminal Justice (TDCJ) has a legitimate penological interest in rehabilitation
that justified disciplining Morgan, and that the TDCJ did not deny Morgan due
process at his disciplinary hearing. Accordingly, we affirm.
I.
The underlying facts are not disputed. In 2005, during a habeas
proceeding apart from this one, in response to the State of Texas’s motion to
dismiss, Morgan mailed Assistant Attorney General Susan San Miguel a note
written on toilet paper. That note said: “Dear Susan, Please use this to wipe
your ass, that argument was a bunch of shit! You[rs] Truly, George Morgan.”
Assistant Attorney General S. Michael Bozarth returned the note to the warden
of the Stevenson Unit, the correctional institution where Morgan was
incarcerated, along with a letter describing the circumstances of Morgan’s
correspondence.
Morgan was charged with the use of indecent or vulgar language under
Rule 42.0 of the TDCJ Disciplinary Rules and Procedures. At his disciplinary
hearing, he was found guilty and, among other penalties, was punished with the
loss of fifteen days of good time credit. Morgan filed step-one and step-two
grievances appealing the disciplinary proceeding, both of which were denied.
Morgan then filed the instant application for habeas relief in the United
States District Court for the Southern District of Texas, alleging that the
disciplinary proceeding violated his rights under the First Amendment and the
Due Process Clause of the Fourteenth Amendment. The district court granted
summary judgment for the TDCJ, dismissed Morgan’s application, and denied
a COA. Morgan filed a motion to alter or amend judgment, which was denied.
He appealed, and this court granted a COA. We now decide whether Rule 42.0,
as applied, violated Morgan’s rights.
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II.
Rule 42.0 of the TDCJ Disciplinary Rules and Procedures prohibits the
“use of indecent or vulgar language or indecent or vulgar gestures in the
presence of or directed at an employee or any person who is not an offender.”
Morgan argues that the rule, as applied to his mailed note, is an unnecessary
infringement of his First Amendment right to free speech because there is no
legitimate penological reason for applying the rule to outgoing mail. The district
court rejected that argument, concluding that the rule was properly applied to
restrict the use of indecent or vulgar language in “legal mail” directed at
opposing counsel. The district court also concluded that Morgan was not denied
due process at his disciplinary hearing.
We review the district court’s summary judgment, including its
conclusions of law, de novo. E.g., Virgil v. Dretke, 446 F.3d 598, 604-05 (5th Cir.
2006).
A.
It is well-established that a prisoner retains certain First Amendment
rights notwithstanding his incarceration. See, e.g., Pell v. Procunier, 417 U.S.
817, 822 (1974). Nevertheless, “lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system.” Bell v. Wolfish, 441 U.S. 520,
545-46 (1979) (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)). In the First
Amendment context, a prisoner retains only those rights “that are not
inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell, 417 U.S. at 822. It is generally
recognized that security, order, and rehabilitation are legitimate penological
objectives. E.g., Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court announced four
factors relevant to determining whether a prison regulation that restricts
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No. 07-41064
constitutional rights is permissible: (1) whether there is a “‘valid, rational
connection’ between the prison regulation and the legitimate government
interest put forward to justify it”; (2) “whether there are alternative means of
exercising the right”; (3) “the impact accommodation of the asserted
constitutional right will have on guards and other inmates”; and (4) whether “the
absence of ready alternatives is evidence of the reasonableness of a prison
regulation.” Id. at 89-90. In a recent case the Supreme Court, unsurprisingly,
acknowledged the particular importance of the first factor, explaining that in
some cases the second, third, and fourth factors can “add little, one way or
another, to the first factor’s basic logical rationale.” Beard v. Banks, 548 U.S.
521, 532 (2006). In the light of the first factor, “the real task” is to determine
whether there is a “reasonable relation” – that is, “more than simply a logical
relation” – between the prison regulation and the legitimate penological interest.
Id. at 533. Our own cases reflect this approach to Turner analysis. Specifically,
we have held that where, as here, a prison regulation restricts a prisoner’s rights
with respect to mail, “the appropriate inquiry is whether the practice is
reasonably related to a legitimate penological interest.” Brewer v. Wilkinson, 3
F.3d 816, 824 (5th Cir. 1993) (citing Turner, 482 U.S. at 78).
We necessarily begin with the prison’s asserted legitimate penological
interest. The TDCJ argues that it has a legitimate penological interest in
rehabilitating prisoners in preparation for their return to society, and that by
applying Rule 42.0 to punish Morgan for the use of indecent or vulgar language
in an outgoing letter, the TDCJ is correcting behavior that mainstream society
deems unacceptable.
We have not had prior occasion to address whether the penological interest
in rehabilitation can justify the suppression of speech in outgoing mail. We
have, however, previously rejected the penological interests in order and security
as justifications for the suppression of speech in outgoing mail merely because
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No. 07-41064
it is coarse and offensive, vulgar, or defamatory. McNamara v. Moody, 606 F.2d
621, 624 (5th Cir. 1979); see also Thornburgh v. Abbott, 490 U.S. 401, 411 (1989)
(outgoing mail “d[oes] not, by its very nature, pose a serious threat to prison
order and security”). In McNamara, a prisoner wrote a letter to his girlfriend
in which he stated that a prison officer had sex with a cat. The officer, who read
the letter, refused to mail it. McNamara, 606 F.2d at 623. The prison argued
to this court that permitting such speech in outgoing mail would lead to a “total
breakdown” in prison security and discipline. Id. at 624. This court, however,
observed that “coarse and offensive remarks are not inherently breaches of
discipline and security,” and explained that “[c]ensorship for violation of prison
disciplinary rules is properly limited to communications that relate to more
concrete violations such as ‘escape plans, plans for disruption of the prison
system or work routine, or plans for the importation of contraband.’” Id. (quoting
Martinez, 416 U.S. at 413).
McNamara is different from this case in, at least, two very important
respects. First, the prison in McNamara did not assert a legitimate penological
interest in rehabilitation, and therefore we did not specifically address
rehabilitation in that case. Second, although referencing a guard, the letter in
McNamara was privately addressed to, and intended only for, the prisoner’s
girlfriend, and not, as here, addressed to and intended for opposing counsel in
connection with pending litigation. As the district court observed, the note
Morgan wrote on the piece of toilet paper and mailed to opposing counsel was
unsolicited, harassing, and resembled a threat.
The TDCJ has a legitimate penological interest in rehabilitating prisoners
in preparation for their return to society, and disciplinary proceedings can
further that interest. See Wolff v. McDonnell, 418 U.S. 539, 562 (1974) (“[T]he
proceedings to ascertain and sanction misconduct themselves play a major role
in furthering the institutional goal of modifying behavior and value systems of
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No. 07-41064
prison inmates sufficiently to permit them to live within the law when they are
released.”). Morgan’s note demonstrated a completely unjustified disrespect for
authority, expressed in the most unacceptably vulgar form, which would be
offensive in mainstream society; it would not be tolerated from a peer member
of the bar, and would not be tolerated from a pro se litigant in the free setting.
The TDCJ’s disciplinary action serves to correct behavior that would seriously
prejudice Morgan when he returns to the civil world. We thus conclude that the
TDCJ had a legitimate penological interest in rehabilitation that justified the
disciplinary action. Rule 42.0, as applied to Morgan’s mailed note, was not an
impermissible infringement of his First Amendment right to free speech
B.
Morgan also alleges that he was denied due process at his disciplinary
hearing because he was denied the right to present witnesses, there was
insufficient evidence to support the charge, and the disciplinary hearing officer
was biased. Morgan’s claims are without merit.
We do not dispute that revocation of good time credits that embody a
liberty interest must comply with minimum procedural requirements. Henson
v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). A prisoner is
entitled to: (1) written notice of the charges at least 24 hours prior to a
disciplinary hearing; (2) an opportunity “to call witnesses and present evidence
in his defense when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals”; and (3) “a written statement by the
factfinders as to the evidence relied on and the reason for the disciplinary
action.” Wolff, 418 U.S. at 564-65 (citations omitted). A reviewing court is
required only to find “some evidence” supporting a disciplinary hearing officer’s
decision. Richards v. Dretke, 394 F.3d 291, 294 (5th Cir. 2004) (citing
Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985) (“The
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No. 07-41064
requirements of due process are satisfied if some evidence supports the decision
by the prison disciplinary board to revoke good time credits.”)).
We are satisfied that the requirements of due process were satisfied at
Morgan’s disciplinary hearing. Morgan received notice of the disciplinary
hearing and his attendant rights. Although there is no constitutionally protected
right to counsel substitute in a disciplinary proceeding, he nevertheless was
provided such assistance. At the hearing, Morgan called the charging officer as
a witness, and that officer testified via speaker phone. Morgan also requested
the prison’s mail room supervisor and Assistant Attorney General S. Michael
Bozarth be called as witnesses, but the hearing officer properly denied that
request. Any testimony of the mail room supervisor, who submitted a statement
indicating that he did not screen Morgan’s outgoing mail, was irrelevant in the
light of the fact that Morgan’s note was not intercepted, but instead returned to
the prison by Bozarth. It was also not unreasonable for the hearing officer to
refuse to call Bozarth, given that his involvement in the facts was not at issue
and that Morgan apparently sought Bozarth’s legal opinion, not his factual
testimony. At the conclusion of the hearing there was more than “some
evidence” sufficient to support disciplinary action. Specifically, the charging
officer’s report and testimony, Morgan’s admission that the note was in his
handwriting, and prison mail logs all supported the finding against him.
Morgan’s claims that he was denied the right to present witnesses and that
there was insufficient evidence to support the charge are without merit.
Finally, to prevail on his claim that his hearing officer was biased, Morgan
needed to show that the actions taken “present[ed] such a hazard of arbitrary
decisionmaking that it should be held violative of due process of law.” Wolff, 418
U.S. at 570. Morgan contends that the hearing officer was biased because he
rejected Morgan’s questions to the charging officer. The hearing officer allowed
many of Morgan’s questions, and also himself questioned Morgan about the
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factual background of the charges. Morgan’s bias claim is therefore also without
merit.
III.
Accordingly, for the reasons stated herein, the district court’s judgment is
AFFIRMED.
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