Case: 19-30468 Document: 00515931413 Page: 1 Date Filed: 07/09/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 9, 2021
No. 19-30468 Lyle W. Cayce
Clerk
Clifford C. Abshire, III,
Plaintiff—Appellant,
versus
Mailroom, Raymond Laborde Correctional Center;
Louisiana Department of Public Safety and
Corrections; James Longino; Lieutenant Mitchell;
James LeBlanc,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-1636
Before King, Dennis, and Ho, Circuit Judges.
Per Curiam:*
Clifford C. Abshire, III, Louisiana prisoner # 439164, appeals the
district court’s dismissal of his pro se 42 U.S.C. § 1983 complaint.
Construed liberally, Abshire’s complaint alleges that prison officials violated
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-30468 Document: 00515931413 Page: 2 Date Filed: 07/09/2021
No. 19-30468
his rights under the First and Fourteenth Amendments by rejecting two
pieces of his incoming mail without any valid penological reason; by failing to
notify him of the rejection and afford him the opportunity to object; and by
maintaining the policies that resulted in these actions. The district court
dismissed Abshire’s complaint under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b), concluding that they were frivolous and failed to state a
constitutional claim. We review the dismissal of a claim as frivolous for an
abuse of discretion and a dismissal for failure to state a claim de novo. See
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Construed liberally in light of his other pleadings, see Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983), Abshire’s allegations are neither fanciful,
irrational, nor conclusively contradicted by the record, see Denton v.
Hernandez, 504 U.S. 25, 31-33 (1992), and, as discussed further below,
Abshire’s First Amendment and related due process claims are not based on
indisputably meritless legal theories, see Harper v. Showers, 174 F.3d 716, 718
(5th Cir. 1999). Thus, they are not frivolous.
As for Abshire’s ability to plausibly state a claim for relief, his
complaint may be liberally construed as seeking nominal or punitive
damages, and such damages are not barred by 42 U.S.C. § 1997e(e), the
provision of the Prison Litigation Reform Act that prohibits an award of
compensatory damages in a prisoner’s civil action where there is an absence
of physical injury. See Hutchins v. McDaniels, 512 F.3d 193, 197-98 (5th Cir.
2007). Furthermore, the policies and acts that Abshire challenges arguably
violated his First Amendment and Fourteenth Amendment due process
rights.
Prisoners retain First Amendment free speech rights that are
consistent “with the legitimate penological objectives of the corrections
system.” Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (internal
2
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No. 19-30468
quotation marks and citations omitted). Thus, the right to free speech
protects a prisoner from mail censorship that is not “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)); see also Brewer, 3
F.3d at 823-25 & n.9. Prisoners and their correspondents also have a liberty
interest in uncensored communication that is protected by the Due Process
Clause of the Fourteenth Amendment, which is “qualified of necessity by the
circumstance of imprisonment.” Procunier v. Martinez, 416 U.S. 396, 418
(1974), overruled on other grounds by Thornburgh, 490 U.S. 401. Therefore,
both senders and addressees are entitled to certain procedural due process
protections, including notice of rejected mail and an opportunity to be heard.
See id. at 417-19; Prison Legal News v. Livingston, 683 F.3d 201, 222 (5th Cir.
2012). The district court did not address these authorities when dismissing
Abshire’s complaint.
The alleged failure to notify Abshire of the rejection of his incoming
mail and to give him an opportunity to appeal the decision appears to state a
valid claim for a violation of Fourteenth Amendment procedural due process.
See Soto v. Brock, 795 F. App’x 246, 250 (5th Cir. 2019) (unpublished)
(affirming denial of qualified immunity on the ground that rejecting
prisoner’s mail without notice or an opportunity to object violated clearly
established procedural due process rights). 1 The record is not currently
developed enough to determine whether the substantive policies Abshire
complains of and their application in this circumstance serve a legitimate
penological interest, and so Abshire’s separate First Amendment claims, too,
may not be dismissed at this point in the litigation, though reassessment may
1
Although these unpublished cases are not binding, they are persuasive and
instructive authority. See 5th Cir. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n.7
(5th Cir. 2006).
3
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No. 19-30468
be necessary as the case progresses. See Fountain v. Thaler, 629 F. App’x
592, 594 (5th Cir. 2015) (unpublished) (holding that district court erred by
dismissing prisoner’s claim that prison’s mail policy violated the First
Amendment before the record was “sufficiently developed to determine
whether the challenged policy was reasonably related to a legitimate and
neutral penological interest.” (citing Turner, 482 U.S. at 89)).
Because Abshire’s complaint was not frivolous and stated plausible
First and Fourteenth Amendment claims that were not barred by 42 U.S.C.
§ 1997e(e), we VACATE the district court’s dismissal and REMAND for
further proceedings.
Abshire also challenges the denial of several motions. Abshire did not
appeal the magistrate judge’s denial of his motions to compel and for default
judgment to the district court. Accordingly, these issues are not properly
before this court and will not be considered. See Singletary v. B.R.X., Inc.,
828 F.2d 1135, 1137 (5th Cir. 1987). Abshire presented no authority that
would allow him to assert claims or seek relief on behalf of E.S., a minor, or
establish that he could adequately represent her legal interests given his pro
se status. See Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25,
26-27 (5th Cir. 1989). Accordingly, the district court did not abuse its
discretion in denying him leave to amend the complaint to add her as a
plaintiff or in denying him a preliminary injunction on her behalf. See Marucci
Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir.
2014); Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 418-19 (5th Cir.
2001). We therefore AFFIRM the district court’s denials of Abshire’s
motions for leave to amend and for a preliminary injunction.
VACATED and REMANDED in part; AFFIRMED in part.
4
Abshire v. Mailroom
Combined Opinion