                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                   REVISED MAY 5, 2005
                                                                  May 3, 2005

                          In the                            Charles R. Fulbruge III
                                                                    Clerk
  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
           ______________________________
2
Before DAVIS, SMITH, and DENNIS,                             plaint seeks injunctive relief and compensatory
  Circuit Judges.                                            and punitive damages.3

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unconstitutionally infringed by prison officials’            No. 01-11554 (5th Cir. 2002) (unpublished).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

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

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

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

                                                     6
    The only evidence Ayers submits that could          ver, 276 F.3d at 745.
plausibly refute the evidence discussed above
is the copies of other allegedly racially inflam-          The judgment is AFFIRMED in part, RE-
matory materials that are present in the prison         VERSED in part; and REMANDED for con-
library. According to Ayers, the presence of            sideration of the claims Ayers sought to bring
these materials belies the prison officials’            in his second amended complaint.
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-

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