Ayers v. Peterson

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 31, 2002
• Docket: 01-11554
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11554 Summary Calendar

RICHARD TERRANCE AYERS,

Plaintiff-Appellant,

versus

JERRY PETERSON, Director-Texas Department of Criminal Justice- Institutional Division; DIRECTOR’S REVIEW COMMITTEE; 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) _________________________________________________________________ May 30, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

Richard Terrance Ayers, Texas inmate #468361, proceeding pro

se and in forma pauperis, appeals his civil rights complaint’s

being dismissed as frivolous. See 28 U.S.C. §§ 1915(e)(2)(B)(i) &

1915A(b)(1) (when prisoner litigant proceeding IFP, district court

shall dismiss action if determined to be frivolous). An IFP

complaint that lacks an arguable basis in fact or in law is

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. frivolous. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). A

§ 1915 dismissal as frivolous is reviewed for abuse of discretion.

Id. at 734.

Ayers contends defendants violated his constitutional rights

by denying him publications and card stock paper delivered as

incoming prisoner mail. Regarding the former, he maintains the

dismissal prior to examining the denied publications was an abuse

of discretion.

Ayers’ claims for equitable relief have been rendered moot by

his transfer to another prison. See Cooper v. Sheriff, Lubbock

County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). And, his

challenge for the card stock paper does not state a constitutional

violation. See Richardson v. McDonnell, 841 F.2d 120, 122 (5th

Cir. 1988) (isolated incident of mail-tampering which does not

interfere with a party’s ability to file legal documents does not

state constitutional violation).

Moreover, Ayers has abandoned any challenge for the

publications “Going to Meet the Man,” “Death in a Promised Land,”

“Paradise,” “A Black Theology of Liberation,” “The Warriors,” “The

Journal of Prisoners on Prisons,” and “Rosewood”, as well as a

letter addressed to the National Black Congress. See Grant v.

Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). He

does, however, address the denial of three publications: an issue

2 of the “Graterfriends” newsletter; an 18th century essay on

perpetuating slavery; and “The Nigger Bible”.

The district court noted that Ayers admitted that “some of the

requested publications had been banned by [the Texas Department of

Criminal Justice — Institutional Division] in 1992". Pursuant to

Ayers’ submissions in the record, it appears that, of the three

publications, only “The Nigger Bible” had been banned by prison

officials prior to Ayers’ request for its receipt. According to

Ayers, TDCJ-ID policy forecloses receipt of a publication by any

inmate once the denial of the publication has been upheld on review

by the Director’s Review Committee. The record does not reveal,

however, whether any other litigant has challenged the denial of

this publication.

Prisoners retain those First Amendment rights that are

consistent with their status as prisoners or with the legitimate

penological objectives of the prison. Hudson v. Palmer, 468 U.S.

517, 523 (1984). On the other hand, a prison regulation may

validly restrict material advocating racial hatred on the basis

that it causes a serious danger of violence. Chriceol v. Phillips,

169 F.3d 313, 316 (5th Cir. 1999).

On this record, it appears that the district court’s dismissal

as frivolous of Ayers’ claims concerning the denial of an issue of

the “Graterfriends” newsletter, an 18th century essay on

perpetuating slavery, and “The Nigger Bible” was premature because

3 it appears the court did not examine the publications.

See Thornburgh v. Abbott, 490 U.S. 401, 419 (1989) (affirming

remand to district court for an examination of prison restrictions

on inmates’ receipt of publications as applied to specific

publications).

Accordingly, the judgment is AFFIRMED in part and REVERSED in

part, and this case is REMANDED for proceedings consistent with

this opinion concerning the three identified publications.

AFFIRMED in part; REVERSED in part; and REMANDED