683 F.3d 201 (5th Cir. 2012), 11-40128, Prison Legal News v. Livingston

Docket Nº:11-40128.
Citation:683 F.3d 201
Opinion Judge:EDITH BROWN CLEMENT, Circuit Judge:
Party Name:PRISON LEGAL NEWS, a non-profit, Washington Corporation, Plaintiff-Appellant, v. Brad LIVINGSTON, in his official capacity as the executive director of the Texas Department of Criminal Justice; Jennifer Smith; Ramona Creek, in her individual capacity; Sue Weeks, in her individual capacity, Defendants-Appellees.
Attorney:Scott Charles Medlock (argued), Texas Civ. Rights Project, Austin, TX, for Plaintiff-Appellant. Rance Lamar Craft, Asst. Sol. Gen. (argued), Office of the Atty. Gen., Office of the Sol. Gen., Cynthia Lee Burton, Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees....
Judge Panel:Before DeMOSS, CLEMENT and ELROD, Circuit Judges.
Case Date:June 01, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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683 F.3d 201 (5th Cir. 2012)

PRISON LEGAL NEWS, a non-profit, Washington Corporation, Plaintiff-Appellant,

v.

Brad LIVINGSTON, in his official capacity as the executive director of the Texas Department of Criminal Justice; Jennifer Smith; Ramona Creek, in her individual capacity; Sue Weeks, in her individual capacity, Defendants-Appellees.

No. 11-40128.

United States Court of Appeals, Fifth Circuit.

June 1, 2012

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Scott Charles Medlock (argued), Texas Civ. Rights Project, Austin, TX, for Plaintiff-Appellant.

Rance Lamar Craft, Asst. Sol. Gen. (argued), Office of the Atty. Gen., Office of the Sol. Gen., Cynthia Lee Burton, Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.

Lisa White Shirley, Simon, Eddins & Greenstone, Dallas, TX, for ACLU of Texas, Southern Poverty Law Ctr., American Booksellers Found. for Free Expression, National Coalition Against Censorship,

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Texas Council of Teachers of English Language Arts, Terry A. Kupers, Don Sabo, Christian Parenti, and H. Bruce Franklin, Amici Curiae.

Thomas S. Leatherbury, Vinson & Elkins, L.L.P., Dallas, TX, Zeke DeRose, III, Vinson & Elkins, L.L.P., Austin, TX, for Just Detention International, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before DeMOSS, CLEMENT and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Prison Legal News (" PLN" ), a non-profit corporation, brought this § 1983 action against the Texas Department of Criminal Justice (" TDCJ" ) and three individual TDCJ officials (with TDCJ, the " Defendants" ) for alleged First Amendment and due process violations in connection with TDCJ's censorship of five books PLN wishes to distribute to inmates in the Texas prison system. The district court granted summary judgment to the Defendants, and we now AFFIRM.

FACTS AND PROCEEDINGS

1. TDCJ's Book-Review Procedures

As part of a comprehensive system of processing mail addressed to prisoners, mail-room employees at each of TDCJ's 96 prison units review incoming books for content that may cause problems in TDCJ facilities. Individual defendants Ramona Creek and Sue Weeks are mail-room workers. When a book arrives, the mail-room employees first check to see whether the title is listed in the TDCJ database. The database includes books that have previously been sent to TDCJ inmates and reviewed by TDCJ personnel. If the book is in the database, it is shown as having been either approved or denied, and the mail-room staff follow the existing designation without conducting a new review.

If the book is not in the database, the mail-room employee adds it to the database and conducts a review for content deemed inappropriate for the prison population. TDCJ's " Uniform Offender Correspondence Rules" (the " Policy" ) set forth the following content-based reasons that a book should be rejected:

1) It contains contraband that cannot be removed;

2) It contains information regarding the manufacture of explosives, weapons, or drugs;

3) It contains material a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or [security threat group] activity;

4) A specific determination has been made the publication is detrimental to offenders' rehabilitation because it would encourage deviant criminal sexual behavior;

5) It contains material on the setting up and operation of criminal schemes ...;

6) It contains sexually explicit images.

The Policy also prohibits rejecting books for certain content. For example, the Policy provides that TDCJ should not reject a book solely because it advocates legitimate use of the prison grievance system or criticizes prison authorities. The parties agree that the Policy, which is a revised version of the rules established in a consent decree that the district court approved in 1983 and vacated in 2002, is facially constitutional. TDCJ has no other written guidelines for censoring books.

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Purportedly applying the Policy, the mail-room employee reviewing an incoming book makes an initial decision whether the book should be approved or denied. At present, over 92,000 books are in the database, and approximately 80,000 of those are approved. If the reviewing employee approves the book, he delivers it to the addressee. TDCJ has no automatic review procedure for approvals, and no sender or inmate has a reason to request an appeal, so initial approval decisions by mail-room staff are, at least in practice, final. For this reason, mail-room workers are encouraged to " err on the side of caution" and deny books they believe might be problematic.

If mail-room staff find content they determine to be objectionable in a new book, they deny the book without reviewing the book's remaining content or attempting to weigh the objectionable content against permissible content. Staff record in the database that the book was " denied" and the reason for the denial, with citations to specific pages. Mail-room employees receive training and supervision on the Policy from the Mail System Coordinators Panel (" MSCP" ), the body that coordinates the prison mail system. Individual defendant Jennifer Smith is the Program Director in charge of the MSCP. MSCP attempts to provide guidance to mail-room staff in complying with the First Amendment.

When a book is initially denied by mail-room staff, TDCJ sends a written notice to the prisoner and the book's sender1 that (1) states that the book has been denied for content, (2) identifies the page(s) containing the objectionable content and the reason it is objectionable, and (3) explains how to appeal the mail-room's decision. Either the prisoner or the sender may appeal the denial of the book.

An appeal of a new book is sent to TDCJ's Director's Review Committee (" DRC" ), a body of TDCJ administrators. DRC typically delegates the appeal to a member of the MSCP, the body headed by Smith. A single MSCP member reviews the book, purportedly applying the criteria listed in the Policy. Generally, the MSCP member will either approve or deny the book, and such a decision is final. If the MSCP member is uncertain whether the book should be denied, a second MSCP member reviews the book. If the two MSCP members do not agree, the book is referred to the DRC as a whole for final review. Like the mail-room employees, the MSCP/DRC " do[es] not attempt to determine whether the remainder of the book contains other content which is not in violation of policy or which would ‘ outweigh’ [the objectionable content]."

During this appeals process, the MSCP/DRC reviews only the denial form and the book itself in reaching its decision. The " appellant" inmate or sender has no formal opportunity to participate in the appeals process, either at a hearing or by submitting written arguments. Essentially, the right to appeal is only the right to request additional review from TDCJ. The DRC sends the parties involved written notice of the decision. An approved book is delivered to the prisoner. The appeal and its result are noted in TDCJ's book database. A list of newly approved and denied books is posted in each unit's law library to inform

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prisoners of decisions from the current and previous month.

After a book's denial has been upheld by a final DRC/MSCP decision, TDCJ does not send a denial notice to senders of subsequent copies of the book. The mailroom sends notice to the prisoner addressee only for the purpose of seeking instructions on how to dispose of the denied book.

2. PLN's Books

PLN is a non-profit organization whose core mission is " informing prisoners about their rights." PLN publishes Prison Legal News, a monthly magazine about prisoners' rights. TDCJ allows prisoners to subscribe to the magazine. PLN also distributes approximately 50 books, covering a variety of subject matters, that it believes are helpful to prisoners. Relevant to this appeal, TDCJ has excluded from its facilities five of the books PLN distributes: Prison Masculinities, Don Sabo, et al., eds., (2001); The Perpetual Prison Machine: How America Profits from Crime, Joel Dyer (1999); Lockdown America: Police and Prisons in the Age of Crisis, Christian Parenti (2000); Soledad Brother: The Prison Letters of George Jackson, George Jackson (1970); and Women Behind Bars: The Crisis of Women in the U.S. Prison System, Silja J.A. Talvi (2007).

Prison Masculinities is a collection of essays from various authors about prison conditions. A mail-room employee denied the book in 2001 because pages 128-31 " contain rape" and pages 194 and 222 " contain racial material." The prisoner addressee appealed and the DRC upheld the denial. In 2009, a TDCJ prisoner ordered a copy of the book from PLN, and it was rejected as a matter of course because it was marked as denied in the TDCJ database.

The offending pages of Prison Masculinities describe incidents of prison rape in detail, including passages describing how the author was " raped and beaten by Blacks as a punishment for permitting [himself] to be raped by Whites," assaulted by " a huge gang" that " took turns raping us anally and orally simultaneously," forced to perform fellatio, urinated upon during a rape, and forced to drink urine during a " mass rape." The " racial material" that was cited in the denial decision included racial slurs and an account of a prison guard " calling [a prisoner] a ‘ nigger’ as the other guards laugh[ed]."

According to PLN, The Perpetual Prison Machine is a " critique of the prison industry." Mail-room staff denied the book in 2000 because the description of rape on page...

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