Ayers v. Peterson, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 3, 2005
Charles R. Fulbruge III
Clerk
REVISED MAY 5, 2005
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10623
Summary Calendar
_______________
RICHARD TERRANCE AYERS,
Plaintiff-Appellant,
VERSUS
JERRY PETERSON,
DIRECTOR-TDCJ-ID; ET AL.,
Defendants,
GARY JOHNSON; LINDA PATTESON; MICHAEL COUNTZ; JIM ZELLER;
ROBERT OTT; WINSTON HOLD; MELTON BROCK;
HERMAN TEINERT; L.N. HODGES; RICHARD DEAL; JUDY SLOAN,
Defendants-Appellees
_________________________
Appeal from the United States District Court
for the Northern District of Texas
1:99-CV-11
______________________________

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Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Texas state prisoner Richard Ayers appeals
a summary judgment in this action brought
under 42 U.S.C. § 1983 in which he alleges
that his First Amendment rights have been
unconstitutionally infringed by prison officials’
pret extual refusals to allow him access to
certain literature that has been mailed to him.
Although summary judgment was proper as to
certain materials, the district court erred in
denying Ayers’s previously-filed motions for
leave to amend his complaint and for leave to
supplement the appendices to his brief in
opposition to summary judgment. Accord-
ingly, we affirm in part and reverse in part.
I.
On January 14, 1999, Ayers sued Jerry Pe-
terson, who was the director of the Texas
Department of Criminal Justice (“TDCJ”), and
members of the Director’s Review Committee
(“DRC”). According to Ayers, the defendants
had deprived him of his First Amendment
rights by denying him access to certain
publicationsSSi.e., The Nigger Bible,2 an essay
on slavery, and the June/Summer 1998 issue of
the Graterfriends Newsletter. On October 10,
2000, Ayers amended his complaint to name as
defendants the new TDCJ director, Gary
Johnson; Linda Patteson, a member of the
Mail System Coordinator’s Panel; seven mem-
bers of the DRC, and two mailroom employees
at the Robertson Unit. The amended com-
plaint seeks injunctive relief and compensatory
and punitive damages.3
In October 2001, the district court
dismissed the suit as frivolous. The following
May, however, a panel of this court reversed
and remanded, holding that dismissal was
premature because the court had not examined
the materials in question. Ayers v. Peterson,
No. 01-11554 (5th Cir. 2002) (unpublished).
On remand, defendants provided the court
with copies of the challenged publications for
its review, in camera, and moved for summary
judgment. Before the court had ruled on the
summary judgment motion, however, Ayers
sought once again to amend his complaint to
add claims relating to the allegedly pretextual
denials of three other publications4 he sought
to receive. At the time of Ayers’s motion,
none of the defendants had been served with
or answered the complaint. Ayers’s motion
was denied; the district court stated that “the
denials [of access about which Ayers seeks to
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
2 Referred to hereinafter as “The N . . . Bible.”
3 Ayers later agreed to dismiss any claims for
damages against defendants in their official capac-
ity because those claims would be barred by the
Eleventh Amendment. See Aguilar v. Tex. Dep’t
of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998) (“[A]s an instrumentality of the state,
TDCJ-ID is immune from [] suit on Eleventh
Amendment grounds.”). To the extent that Ayers
claims damages from the defendants personally,
qualified immunity arguably would protect them.
Because he cannot establish a constitutional vio-
lation, however, we do not reach the qualified im-
munity question.
4 These publications include The Vulture and
the Nigger Factory, Walking on Borrowed Land,
and a copy of Volume 10 #4 of the magazine,
Justice Xpress.

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complain] in 2001 were prior to this Court’s
dismissal of Plaintiff’s Amended Complaint.”
Also before the district court ruled on
summary judgment, Ayers sought leave to
supplement the appendices to his brief in
opposition to summary judgment. Specifically,
he tried t o comply with Federal Rule of Civil
Procedure 56(e), which requires that all sum-
mary judgment evidence be attested to as
authentic. The district court did not specifi-
cally address that motion but noted in its order
granting summary judgment that all pending
motions were denied.
With respect to the motion for summary
judgment, the court held that Ayers had suf-
fered no constitutional injury, so his suit
should be dismissed. The court found that the
publications in question were rejected in pur-
suit of a legitimate penological objective,
because they advocated racial violence or
otherwise threatened to the overall security of
inmates and prison employees.
II.
Ayers asserts three issues on appeal:
(1) that the district court erred in denying him
leave to amend his complaint; (2) that the
court erred in not allowing him to supplement
the appendices to his brief in opposition to
summary judgment; and (3) that summary
judgment was inappropriate because there
were unresolved questions of material fact.
We address each, in turn.
A.
The denial of leave to amend pursuant to
Federal Rule of Civil Procedure 15 is reviewed
for abuse of discretion. Lowrey v. Texas A &
M Univ. Sys., 117 F.3d 242, 245 (5th Cir.
1997). Nevertheless, that discretion is not
unbounded:
In the absence of any apparent or de-
clared reasonSSsuch as undue delay, bad
faith or dilatory motive on the part of
the movant, repeated failure to cure
deficiencies by amendments previously
allowed, undue prejudice to the oppos-
ing party by virtue of allowance of the
amendment, futility of amendment,
etc.SSthe leave sought should, as the
rules require, be “freely given.”
Id. (quoting FED. R. CIV. P. 15(a)). “Outright
refusal to grant the leave without any justifying
reason appearing for the denial is not an exer-
cise of discretion.” Foman v. Davis, 371 U.S.
178, 181 (1962).
B.
The district court’s only explanation for
denying amendment was that “the denials in
2001 [o f the materials the denial of which
Ayers seeks to add to his complaint] were
prior to this Court’s dismissal of Plaintiff’s
Amended Complaint.” We do not see the
relevance of that fact. At the time of the
district court’s initial dismissal of this suit
(which we reversed on appeal), no defendant
had answered or even been served with the
complaint. Further, as the district court noted,
one of the alleged denials had not yet occurred
at the time of the initial dismissal. We cannot
see how justice or judicial economy is served
by denying leave to amend on the district
court’s rationale.
Nevertheless, we may affirm for any reason
supported by the record, even if not relied on
by the district court. See LLEH, Inc. v.
Witchita County, Tex., 289 F.3d 358, 364 (5th
Cir. 2002). It is therefore possible that, in
light of the court’s later decision to grant
summary judgment, it considered the proposed
amendment to be futile. That is, the district
court could have concluded that just as it

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believed the original three denials to be consti-
tutional, the additional complaints were
equally so.
Unfortunately, none of the materials that
are subject to the denials about which Ayers
seeks to amend his complaint to reflect is
present in the record. As we said when this
case was last before this court, it would be
premature for a district court to dismiss this
suit without having examined the materials.
Ayers, No. 01-11554, at 3-4. The denial of
leave to amend, therefore, cannot be properly
affirmed on the basis that the amendment
would be futile. Because we are unable to
discern any other legitimate justification for
the denial, we must reverse. Even though we
affirm the grant of summary judgment on
Ayers’s remaining claims (see part IV.B.,
infra), we must remand for consideration of
the claims Ayers wished to add by amendment.
III.
As we explained above, Ayers sought leave
to supplement the appendices to his brief in
opposition to summary judgment to comply
with rule 56(e). Such decisions are reviewed
for abuse of discretion. See Barker v. Nor-
man, 651 F.2d 1107, 1128-29 (5th Cir. Unit A
July 1981). Specifically, it can constitute an
abuse of discretion where a district court fails
to afford a party the opportunity to remedy
obvious defects in his summary judgment
materials. See id.
Neither the defendants nor the district court
challenged the authenticity of the documents in
Ayers’s appendices. As a result, if the district
court’s failure to allow Ayers to supplement
the appendices constituted error, it was en-
tirely harmless, and reversing would have no
effect on the result.
IV.
Ayers contends that it was error to grant
summary judgment. He contends that genuine
issues of material fact remain.
A.
We review a summary judgment de novo
and are bound by the same standards as those
employed by the district court. See Chaplin v.
NationsCredit Corp., 307 F.3d 368, 371 (5th
Cir. 2002). Summary judgment is appropriate
only where “‘the pleadings, depositions, an-
swers to interrogatories, and admissions on
file, together with the affidavits, if any,’ when
viewed in the light most favorable to the
non-movant, ‘show that there is no genuine
issue as to any material fact.’” TIG Ins. Co. v.
Sedgwick James, 276 F.3d 754, 759 (5th Cir.
2002) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986)). Once the
moving party has demonstrated that the
non-moving party has no evidence such that a
reasonable jury could support a verdict in its
favor, the non-moving party must put forth
specific facts that demonstrate a genuine
factual issue for trial. Brennan v. Mercedes
Benz USA, 388 F.3d 133, 135 (5th Cir. 2004).
B.
Ayers alleges violations of his First Amend-
ment rights by the denial of his ability to re-
ceive the challenged publications. Although
prison inmates do not shed all of their consti-
tutional protections by virtue of their confine-
ment, such rights may be circumscribed to
further legitimate penological objectives.
Specifically, “a prison inmate retains those
First Amendment rights that are not inconsis-
tent with his status as a prisoner or with the
legitimate penological objectives of the correc-
tions system.” Pell v. Procunier, 417 U.S.
817, 822 (1974). Consequently, when review-
ing a prison policy that restricts the flow of

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publications to prisoners, we ask whether that
policy is “reasonably related to legitimate
penological interests.” Thornburgh v. Abbott,
490 U.S. 401, 404 (1989).
Defendants claim that the challenged mate-
rials were withheld pursuant to prison policy
because they would create an increased danger
of physical harm to prisoners and prison em-
ployees or contain material of a racially inflam-
matory manner that would encourage disrup-
tions such as strikes or riots. To determine
whether such a proffered justification is suffi-
cient to withstand constitutional scrutiny, we
ordinarily would engage in the four-factor
analysis in Turner v. Safley, 482 U.S. 78, 89
(1987). Under Turner, however, restrictions
on materials deemed likely to produce violence
are permissible because they are rationally
related to valid penological objectives. See
Chirceol v. Phillips, 169 F.3d 313, 316-17
(1999). Included in the materials that can be
rightfully excluded as tending to promote
violence are those that promote racial or
religious hatred. See id.
Furthermore, Ayers is not making a facial
challenge to the policy; instead, he contends
that the regulation has been unconstitutionally
applied in his case because prison officials
have denied him access to the materials he
desires under the pretext that they promote
violence and racial discord. Although the
question of the facial constitutionality of such
restrictions is one of law, the application of the
restriction in individual cases necessarily
involves questions of fact. See Rooks v.
Zavares, No. Civ.A. 99-B-631, 2001 WL
34047959, *10 (D. Colo. Jan. 25, 2001). To
defeat summary judgment, therefore, Ayers
must demonstrate that a genuine issue of
material fact remains for trial.
After reviewing the challenged material, the
district court found, and we agree, that the
publications were well within the realm of
material that may be restricted because of their
potential to cause violence. The portion of the
June 1998 issue of the Graterfriends Newslet-
ter that was withheld from Ayers contained
racial epithets. According to prison officials’
expert judgment, to which we are required to
give great deference,5 the presence of such
material tends to encourage racial hatred and
violence, so it is necessary to keep it out of the
prison to maintain safety and discipline.
Similarly, the essay on slavery titled “How
to keep a Black man down: From one White
slave owner to another” discussed subjugating
black slaves and even included a discussion of
cross-breading “horses and niggers.” There
can be no doubt that the publication speaks for
itself as to whether it contains material that
could promote racial hatred and violence. The
N . . . Bible is no less inflammatory. It uses
the racial epithet of its title on nearly every
page of the book; discusses killing to gratify
sexual desires; blames whites for infecting
Africans with syphilis; and categorizes Cauca-
sians as the problem of the Black people.
These publications, coupled with the prison
officials’ expert judgment, represent such
strong evidence that the publications can be
constitutionally excluded that it is very unlikely
that any amount of countervailing evidence
could allow a reasonable fact-finder to con-
clude otherwise. Nevertheless, we examine
the evidence submitted by Ayers to ascertain
whether a sufficient quantum of evidence is
present to demonstrate a genuine issue of
material fact for trial.
5 See O’Lone v. Estate of Shabazz, 482 U.S.
342, 349 (1987); Oliver v. Scott, 276 F.3d 736,
745 (5th Cir. 2002).

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The only evidence Ayers submits that could
plausibly refute the evidence discussed above
is the copies of other allegedly racially inflam-
matory materials that are present in the prison
library. According to Ayers, the presence of
these materials belies the prison officials’
argument that the challenged publications have
been excluded because of their racially antago-
nistic character, and consequently, he reasons,
there is a genuine issue of material fact. These
available materials include a passage from I
Know Why the Caged Bird Sings, by Maya
Angelou, that uses the same racial epithet that
is replete in The N . . . Bible; and excerpts
from The Black Power Imperative that discuss,
inter alia, Dred Scott v. Sandford, 60 U.S.
393, 407 (1856) (stating that “[blacks] are
beings of an inferior order . . .”).
Ayers’s attempt to demonstrate a genuine
issue of material fact using these materials
fails. The materials in question are wholly
distinguishable from those he was denied.
Comparing the use of a reviled racial epithet in
The N . . . Bible with the book of a Pulitzer
Prize and National Book Award nominee who
is renowned for her civil rights work is like
equating “chalk and cheese.” Blakeley v.
Washington, 542 U.S. ___, 142 S. Ct. 2531,
2537 n.5 (2004) (Scalia, J.). It is equally
inapposite to compare the essay on slavery
that Ayers seeks (a document reminiscent of
the propagandistic and anti-Semitic Protocols
of the Elders of Zion) with Dred Scott.
Although all of the aforementioned doc-
uments involve race relations, no rational trier
of fact could deem them sufficiently similar as
to undercut the defendants’ judgment that the
challenged publications are likely to foment
racial violence. This conclusion is especially
inevitable in light of the substantial deference
we afford to the expert judgment of prison
officials. See O’Lone, 482 U.S. at 349; Oli-
ver, 276 F.3d at 745.
The judgment is AFFIRMED in part, RE-
VERSED in part; and REMANDED for con-
sideration of the claims Ayers sought to bring
in his second amended complaint.

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