Johnson v. Forrest County

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 2000
• Docket: 98-60556
• Status: Unpublished

Opinion

No. 98-60556 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60556 Summary Calendar

RAYFIELD JOHNSON,

Plaintiff-Appellant,

versus

FORREST COUNTY SHERIFF’S DEPARTMENT; BILLY MAGEE, Sheriff,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:96-CV-291-PG -------------------- February 15, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Rayfield Johnson, Mississippi prisoner No. RO955, appeals

the district court’s dismissal of a complaint challenging a

Forrest County Jail policy which prohibits inmates from receiving

magazines by mail. Johnson argues that the jail’s policy is

overbroad because it violates his First Amendment right to

receive religious materials.

Prisoners retain only those First Amendment rights of speech

that are consistent with their status as prisoners or with the

legitimate penological objectives of the prison. Hudson v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-60556 -2-

Palmer, 468 U.S. 517, 523 (1984). Regulations affecting the

sending of publications to prisoners are scrutinized to determine

whether they are “‘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)). Federal

courts look to whether the challenged regulation is logically

connected to the legitimate government interests invoked to

justify it; whether alternative means of exercising the

restricted rights remain open to inmates; what impact

accommodation of the asserted constitutional right would have on

other inmates, guards, and prison resources; and the presence or

absence of reasonable but less restrictive alternatives. See

Turner, 482 U.S. at 89-91; Chriceol v. Phillips, 169 F.3d 313,

316-17 (5th Cir. 1999). Legitimate penological interests include

security, order, and rehabilitation. Procunier v. Martinez, 416

U.S. 396, 413 (1974); Adams v. Gunnell, 729 F.2d 362, 367 (5th

Cir. 1984).

Sheriff Magee cited the following reasons in support of

Forrest County’s ban on inmates’ receipt of magazines and

newspapers: the danger of fire; the possibility that inmates

could use magazine pages to stop toilets; and the potential for

messy cells. A blanket ban on newspapers and magazines on the

basis that they constitute a fire hazard or pose a threat to

plumbing violates the First Amendment. Mann v. Smith, 796 F.2d

79, 82-83 (5th Cir. 1986). Thus, we hold that the jail’s blanket

prohibition on the receipt of magazines and publications by mail

is not a legitimate penological regulation. No. 98-60556 -3-

Although Johnson never formally moved to amend his pleadings

to raise a claim of retaliation, before the defendants filed a

responsive pleading, Johnson clearly informed the district court

that jail employees had retaliated against him by tampering with

his mail. Under the principles of liberal construction accorded

pro se litigants,** the district court should have construed

Johnson’s statements at a Spears*** hearing and in his motion to

reinstate the complaint as an attempt to amend his complaint to

allege a claim of retaliation. See Adams v. Hansen, 906 F.2d

192, 196 (5th Cir. 1990); FED. R. CIV. P. 15(a). On remand, the

district court is directed to allow Johnson an opportunity to

amend his pleadings to state a claim of retaliation.

For the foregoing reasons, the order of dismissal is vacated

and the case is remanded for proceedings consistent with this

opinion.

VACATED AND REMANDED.

** Haines v. Kerner, 404 U.S. 519, 520 (1972). *** Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).