IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8514
Summary Calendar
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ALAN WADE JOHNSON,
Appellant,
versus
EL PASO COUNTY SHERIFF'S DEPARTMENT,
SHERIFF LEO SAMANIEGO, CAPTAIN RAMON
RAMIREZ, LIEUTENANT EDWARD SERVIDER,
and GRIEVANCE OFFICER JOE LOPEZ,
Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
(EP 92 CV 44)
_________________________________________________________________
( March 20, 1995 )
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
This case is now pending before us on motion of the appellant
to recall the mandate. The original opinion in this case was filed
on February 25, 1994. On March 29, 1994, Johnson filed a petition
for rehearing, arguing that we had misinterpreted the law and that
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
we had analyzed the wrong protective order. His petition was
denied on November 2. Johnson filed a motion to recall the mandate
on November 25, raising the same errors as his petition for
rehearing. After reviewing his motion, we have found that his
arguments merit further consideration. Accordingly, the mandate is
recalled, the February 25 opinion is hereby withdrawn, and the
following opinion is substituted therefore.
I
On March 3, 1992, Alan Wade Johnson filed suit, pro se,
against the El Paso County Sheriff's Department and several of its
employees, in their individual and official capacities,1 under 42
U.S.C. § 1983 alleging the unconstitutional censorship of his
incoming mail while he was confined in the El Paso County Detention
Facility as a pretrial detainee. Specifically, Johnson complains
that a greeting card and letter were censored and returned to his
sister marked "no cards allowed"; that several photographs of his
girlfriend in lingerie were returned to his girlfriend marked
"photos unacceptable"; that a catalog he had ordered from General
Motors was rejected pursuant to a total ban on catalogs; and that
he never received any notice when incoming mail was censored and
returned. In response to these complaints, the defendants filed
1
"For purposes of liability, a suit against a public official
in his official capacity is in effect a suit against the local
government entity he represents." Mairena v. Foti, 816 F.2d 1061,
1064 (5th Cir. 1987) (citing Kentucky v. Graham, 473 U.S. 159
(1985) and Brandon v. Holt, 469 U.S. 464 (1985)), cert. denied, 484
U.S. 1005 (1988).
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their original answer on March 23 raising the affirmative defenses
of absolute and qualified immunity.
Shortly thereafter, during discovery, Johnson served upon
Sheriff Leo Samaniego a request for production of documents.
Defendant Samaniego complied with Johnson's requests, in part, and
objected to the requests, in part. On May 11, 1992, Sheriff
Samaniego filed a motion for protective order, requesting the court
that he not be required to produce certain parts of the information
requested. The magistrate judge granted, in part, and denied, in
part, this motion for protective order, and the district court
later affirmed the ruling of the magistrate judge.
On July 6, 1992, Johnson filed a motion for the appointment of
counsel. The district court denied that motion on July 10. On the
same day, the district court sua sponte entered an order (the
"Amendment Order") specifying certain legal deficiencies in
Johnson's complaint and requiring Johnson to amend his complaint to
satisfy the pleading requirements of § 1983 by pleading facts with
sufficient particularity to overcome the defendants' immunity
defenses. On July 27, 1992, Johnson filed an amended complaint in
response to the Amendment Order.
On September 16, 1992, however, the district court found that
Johnson's amended complaint also failed to state facts with
sufficient particularity to satisfy the pleading requirements of a
§ 1983 action, and the court dismissed Johnson's action with
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prejudice, ("Order of Dismissal"). Judgment was entered in favor
of the defendants, and this appeal was filed before this court.
II
Johnson raises three main issues on appeal. First, he asserts
that the district court erred in denying him appointed counsel.
Second, Johnson asserts that the trial court erred in allowing the
grant of the protective order stating that Sheriff Samaniego did
not have to produce certain information. Finally, Johnson contends
that the district court erred in dismissing his claim with
prejudice on the basis that his pleadings lacked the requisite
factual specificity to overcome the defendants' claim of immunity.
As the case comes to us, the primary issue is whether the
district court properly dismissed Johnson's first amended complaint
for failing to state facts with sufficient particularity to satisfy
the pleading requirements of a § 1983 cause of action. We find
that the district court erred in determining that Johnson's
complaint lacked the requisite factual specificity, but we,
nonetheless, affirm the district court, in part, holding that the
individual defendants are entitled to qualified immunity from most
of Johnson's claims. We reverse the district court, however, in
its dismissal of Johnson's remaining claim against the individual
defendants and in its dismissal of Johnson's claims against El Paso
County, and we remand this case for further proceedings.
In its September 16, 1992, Order of Dismissal, the district
court held that Johnson's complaint failed to state facts with
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sufficient particularity to satisfy the pleading requirements of a
§ 1983 cause of action. Accordingly, the district court dismissed
Johnson's complaint with prejudice. We find that the district
court's reasoning was in error.2
First, the United States Supreme Court has now made clear that
a heightened pleading standard cannot be required in § 1983 cases
with respect to allegations of local government liability.
Leatherman v. Tarrant County Narcotics Intelligence & Coordination
Unit, ___ U.S. ___, 113 S.Ct. 1160, 1162 (1993) (stating that a
local government entity can be immune from liability, but is not
immune from suit). Accordingly, with respect to Johnson's claims
against the county of El Paso, as a local government entity, we
apply the usual pleading requirements of a simple and concise
statement of the claim. See Fed. R. Civ. P. 8(a)(2). Under this
simple construction, a Rule 12(b)(6) dismissal for failure to state
2
Johnson's complaint alleges several specific, personal
injuries that he suffered as a pretrial detainee in the El Paso
County Detention Facility. He asserts that his injuries resulted
from the manner in which his incoming mail was handled by the
defendants. First, Johnson's complaint specifically alleges that
his sister mailed him a greeting card and letter. He states that
he never received these items, however, because they were censored
and returned to his sister marked "no cards allowed." Furthermore,
Johnson complains that his girlfriend sent him several photographs
of herself in lingerie, but these too were returned to the sender--
these were marked "photos unacceptable." Next, Johnson plead facts
to show that on July 3, 1991, a catalog that he had ordered from
General Motors was rejected and returned to the sender pursuant to
a total ban on catalogs. Finally, Johnson complains that he has
been injured because he was unable to find out who had written to
him during his detainment because he never received any notice when
incoming mail was censored and returned, even though mail was
censored and returned on numerous occasions.
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a claim upon which relief can be granted should only be granted if
it appears to a certainty that Johnson would not be entitled to
recover under any state of facts that could be proved in support of
his claim. See Hospital Bldg. Co. v. Trustees of Rex Hosp., 425
U.S. 738 (1976); Heaney v. U.S. Veterans Admin., 756 F.2d. 1215,
1217 (5th Cir. 1985). Clearly, under this standard, the district
court should not have dismissed Johnson's claims against El Paso
County on grounds lack of factual specificity in his complaint. He
alleged facts sufficient to support a claim against the county that
will withstand the Rule 12(b)(6) motion to dismiss.
With respect to Johnson's § 1983 claims against the individual
officers of the El Paso County Sheriff's Department, however, this
circuit generally does apply a heightened pleading standard.
Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985).3 This
standard "demands more than bald allegations and conclusionary
statements. [The plaintiff] must allege facts specifically
focusing on the conduct of [the defendant] which caused his
injury." Wicks v. Mississippi State Employment Servs., 41 F.3d
991, 995 (1995). That heightened pleading standard requires that
3
We made clear in Wicks v. Mississippi State Employment
Services, 41 F.3d 991, 995 n.11 (5th Cir. 1995), that,
notwithstanding Leatherman, we will apply a heightened pleading
requirement in cases involving the qualified immunity of individual
government officials. Until this issue is decided en banc by the
court, see Schultea v. Wood, 27 F.3d 1112 (5th Cir. 1994), reh'g en
banc granted (Aug. 26, 1994), Wicks is the law of the circuit which
we are bound to follow. This heightened pleading requirement,
nonetheless, is not determinative in this case.
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"[w]hen government officials are likely to invoke qualified
immunity . . . a complaint [should] state factual detail and
particularity including why the defendant-official cannot maintain
the immunity defense." Colle v. Brazos County, Tex., 981 F.2d 237,
246 (5th Cir. 1993). We find that in the case before us, Johnson's
amended pleadings are made with enough factual specificity to
survive either a simple or a heightened pleading requirement.
Thus, with respect to Johnson's § 1983 claims against the
individual officers of the El Paso County Sheriff's Department, we
find that the district court erred in dismissing Johnson's
complaint for lack of factual specificity.
We do not find it necessary, however, to reverse the district
court, in toto. The import of the heightened pleading requirement
is to enable the district court judge to determine whether the
plaintiff has stated a claim upon which relief can be granted,
including the question of whether the plaintiff can overcome the
immunity claimed by the defendants. Elliott, 751 F.2d at 1480.
Today, we affirm, in substantial part, the district court's
dismissal of Johnson's claims against the individual defendants,
because even in the light of Johnson's fact specific pleadings, the
individual defendants are entitled to immunity from most of
Johnson's claims as a matter of law.
As previously noted, Johnson brought this suit against both El
Paso County and the officers of the El Paso County Sheriff's
Department in their individual capacities. We will first address
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Johnson's claims against the county: "[L]ocal government liability
under section 1983 is established only where the `execution of a
government's policy or custom, whether made by its law makers or by
those whose edicts arguably or acts may be fairly said to represent
official policy, inflicts the injury.'" Mairena v. Foti, 816 F.2d
1061, 1064 (5th Cir. 1987) (quoting Monell v. Department of Social
Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 (1978)); see
also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197
(1989). Otherwise, a local government is said to be immune from
liability. Monell, 436 U.S. at 694; 98 S.Ct. at 2037-38; see also
Leatherman, ___ U.S. at ___, 113 S.Ct. at 1162.
Johnson's case clearly should not have been dismissed for
failure to state a claim against El Paso County. Johnson complains
of specific instances in which his incoming mail was censored and
returned to the sender, allegedly causing constitutional injury to
him. Johnson's complaint also specifically alleges that the action
taken with respect to this mail was pursuant to a custom/policy of
the Sheriff's Department. In several instances, Johnson quite
clearly references and even attaches an Inmate Handbook and an
Interoffice Memorandum to support the contention that his mail was
rejected pursuant to the policies and customs of the detention
center. In other instances, Johnson alleges that he followed the
grievance procedures to correct his injury but got no relief from
the officials of the facility--people whose edicts arguably could
be said to reflect the official policy of the facility.
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Johnson further asserts in his complaint that he was injured
by his inability to find out who wrote to him during his
detainment. He alleges that no method of notification is
established in the handbook on incoming mail, and he explains that
although given an opportunity, the officials of the facility took
no action to correct the problem of notification. El Paso County,
therefore, was not entitled to dismissal of Johnson's claims, and,
accordingly, we remand this case for the district court to consider
more fully Johnson's constitutional claims against El Paso County.4
4
The district court should consider on remand whether
Johnson's proffered evidence raises any viable constitutional
injury under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987).
We make no determination as to the merits of Johnson's claims. We
would emphasize, however, that the expertise of prison
administrators is to be respected by the courts, because prison
administration is "a task that has been committed to the
responsibility of [the legislative and executive] branches" and
"`courts are ill equipped to deal with the increasingly urgent
problems of prison administration.'" Id. at 84, 107 S.Ct. at 2259
(quoting Procunier v. Martinez, 416 U.S. 396, 405-06 (1974)). It
is, however, the duty of the courts to protect the prisoner's right
to have prison regulations concerning incoming mail be "reasonably
related to legitimate penological interests." Thornburgh v.
Abbott, 490 U.S. 401, 404, 109 S.Ct. 1874, 1877 (1989); Turner, 482
U.S. at 89 (1987).
The Supreme Court in Turner established that several factors
must be balanced in order to determine whether a reasonable
relationship exists between the questioned policy of mail rejection
and a legitimate penological interest. See Thornburgh, 490 U.S. at
414. The factors are: 1) whether the governmental objective
underlying the regulation is legitimate and neutral, and whether
there is a rational relationship between the governmental objective
and the challenged regulation; 2) whether alternative means of
exercising the asserted right remain open to prison inmates; 3)
whether the accommodation of the asserted right would significantly
impact others in the prison, including guards and inmates; and 4)
whether there are "ready alternatives" to the challenged
regulation, the lack of which is evidence of reasonableness and the
existence of which points to unreasonableness although this test is
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The claims against the individual defendants, however, require
a different analysis. For a defendant pleading qualified immunity
to be liable, the defendant official's conduct must have violated
"clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow, 457 U.S. at 818
(1982). In other words, even if it is decided that El Paso,
pursuant to its policies and practices, violated Johnson's
constitutional rights by rejecting incoming mail in a manner that
is not reasonably related to a legitimate penological interest, the
individual defendants could not be held personally liable under §
1983 unless Johnson's constitutional rights were "clearly
established" at the time these events took place. See Stem v.
Ahearn, 908 F.2d 1, 5 (5th Cir. 1990), cert. denied, 498 U.S. 1069,
111 S.Ct. 788 (1991).
In order for a constitutional right to be clearly established,
"[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he was doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640,
107 S.Ct. 3034, 3039 (1987). Applying this standard, we find that
the individual defendants in the present case are entitled to
immunity from suit on all but one claim made against them by
Johnson. As to that single claim, however, we find that Johnson's
constitutional rights were sufficiently defined, so that a
not a "least restrictive alternative" test. Turner, 482 U.S. at
89-91, 107 S.Ct. at 2262.
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"reasonable official would understand that what he was [allegedly]
doing violates that right." Id.
In 1987, the Supreme Court, in Turner v. Safely5, clearly
established that a prisoner has a right to have prison regulations
concerning incoming mail be "reasonably related to legitimate
penological interest." See Turner, 482 U.S. at 89, 107 S.Ct. at
2261. In the same case, the Supreme Court developed a multi-
factored balancing test that courts must apply to determine whether
a reasonable relationship exists between the questioned policy of
mail rejection and a legitimate penological interest. See
Thornburgh, 490 U.S. at 414. The contours of the Turner test,
however, are not "sufficiently clear" for us to hold that in 1991
there was any "general, well-developed legal principle[]" that
would cause a reasonable jail official to know that he or she was
violating Johnson's constitutional rights by rejecting Johnson's
mail as alleged by Johnson in his pleadings. See Jefferson v.
Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir. 1987).
In addition to the complaints about the rejection of his mail,
however, Johnson also complains about the "lack of notification"
available to alert him to such rejections. Johnson asserts in his
complaint that he was injured by his inability to find out who
wrote to him during his detainment. With respect to this single
claim, we hold that the individual defendants are not entitled to
5
482 U.S. 78, 107 S.Ct. 2254 (1987).
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immunity from suit. In 1974, the Supreme Court quite clearly
established that there must be some "minimum procedural safeguards"
to accompany the decision to censor or withhold delivery of a
particular letter. Procunier v. Martinez, 416 U.S. 396, 417-18, 94
S.Ct. 1800, 1814 (1974)). In that case, the Supreme Court required
that an inmate be notified of the rejection of a letter
written by or addressed to him, that the author of that
letter be given a reasonable opportunity to protest that
decision, and that complaints be referred to a prison
official other than the person who originally disapproved
the correspondence.
Id. (emphasis added). Certainly after Martinez, a "reasonable
official would understand that [failing to notify Johnson of the
rejection of a letter addressed to him] violates [Johnson's
constitutional rights]." See Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039 (1987).
Accordingly, we affirm the district court's dismissal of
Johnson's "rejection" claims against the individual defendants on
the basis that these individual defendants are entitled to
qualified immunity, but we reverse the district court's dismissal
of Johnson's "notification" claim against the individual
defendants. As previously noted, we also reverse the district
court to the extent that it dismissed Johnson's claims against the
county of El Paso.6
6
Johnson also contends that the district court erred in
denying him appointed counsel. A district court has the discretion
to appoint counsel, if doing so would advance the proper
administration of justice. 28 U.S.C. § 1915; Ulmer v. Chancellor,
691 F.2d 209, 213 (5th Cir. 1982). Generally speaking, however, no
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right to counsel exists in a § 1983 case. Hardwick v. Ault, 517
F.2d 295, 298 (5th Cir. 1975).
"The trial court is not required to appoint counsel for an
indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless
the case presents exceptional circumstances." Ulmer, 691 F.2d at
212 (citation omitted); Branch v. Cole, 686 F.2d 264, 266 (5th Cir.
1982); Schack v. Florida, 391 F.2d 593 (5th Cir. 1968), cert.
denied, 392 U.S. 916, 88 S.Ct 2080 (1968). "[T]he existence of
such circumstances will turn on the quality of two basic factors --
the type and complexity of the case, and the abilities of the
individual bringing it." Branch, 686 F.2d at 266.
We cannot say that this case presents any exceptional
circumstances to indicate that the district court abused its
discretion in denying Johnson appointed counsel. Accordingly, we
affirm the district court in this ruling.
Johnson also appeals the district court's order affirming the
magistrate judge's protective order stating that Sheriff Samaniego
did not have to respond to various discovery requests made by
Johnson. It is true that a party generally "may obtain discovery
regarding any matter . . . which is relevant to the subject matter
involved in the pending action." Fed. R. Civ. P. 26(b)(i). But it
is also true that "`[c]ontrol of discovery is committed to the
sound discretion of the trial court, and its discovery rulings will
be reversed only where they are arbitrary or clearly
unreasonable.'" Williamson v. USDA, 815 F.2d 368, 373 (5th Cir.
1987) (quoting Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007,
1012 (5th Cir. 1986).
In the present case, on July 20, 1992, the district court
affirmed the June 23, 1992, discovery order of the magistrate
judge. Concluding that Johnson requested information that was too
broad, irrelevant, and an undue burden on the defendants, the
magistrate judge granted the defendants' motion for a protective
order as to most of Johnson's forty requests for production of
documents. We think that the district court abused its discretion
in excluding substantially all discovery. As we hold today,
Johnson has clearly made a colorable claim relating to policies
regarding the rights of prisoners to receive and be made aware of
incoming mail. The district court should, therefore, reconsider
its decision so as to allow Johnson a reasonable opportunity to
discover information that is relevant to his claims. Of course,
Johnson must not be allowed to abuse the discovery process and
place unreasonable, irrelevant, or unnecessarily burdensome
discovery demands on the county. We leave Johnson's specific
requests in the capable and fair hands of the district court.
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III
We thus conclude that the district court erred in dismissing
Johnson's claims against El Paso County. Johnson's pleadings were
sufficiently fact specific, and the county is entitled to no
dismissal in this case on the face of the pleadings. Similarly,
the district court erred in dismissing Johnson's "lack of
notification" claim against the individual defendants. We affirm
the district court, however, with respect to its dismissal of
Johnson's other claims against the individual defendants, because
even though Johnson's pleadings were fact specific, he has no
sustainable claim that the individuals violated a clearly
established constitutional right. With respect to those particular
claims, therefore, the individual defendants are immune from suit
as a matter of law. We further affirm the district court in its
denial of appointed counsel. We, however, reverse the district
court's discovery order of July 24, 1992, which affirmed the
magistrate judge's protective order of June 23, 1992, concerning
the forty requests for document production, and we remand Johnson's
discovery requests for consideration in the light of this opinion.
The judgment of the district court is hereby
AFFIRMED in part and REVERSED and REMANDED in part.
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