
USCA1 Opinion

	




          March 23, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1924                                    ROBERT P. LENA,                                Plaintiff, Appellant,                                          v.                               LARRY E. DUBOIS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Robert P. Lena on brief pro se.            ______________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Charles  M.  Wyzanski,  Senior   Litigation  Counsel,  Department   of        _____________________        Correction, on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.   Plaintiff Robert  Lena, an  inmate at  the                 __________            Norfolk Correctional Institution in Massachusetts, challenges            the constitutionality of prison  rules barring the receipt of            publications, ordered  through the  mail, that have  not been            paid for  in advance.  See 103 NOR   403.25 ("All orders must                                   ___            be pre-paid.  Any  order arriving with a balance due  will be            returned to  the company.").   Below, plaintiff  advanced two            claims:  (1) that this  policy abridged his  rights under the            First Amendment;  and (2) that prison  officials violated his            due   process  rights   by   failing  to   follow  applicable            procedures,  see 103 CMR   481.16, prior to returning a "bill                         ___            later"  book he  had ordered.   As  plaintiff has  offered no            sustained  argumentation on  appeal in  support of  either of            these claims,  we affirm largely  for the reasons  recited by            the Magistrate-Judge in her decision dated July 16, 1993.  We            note only the following.                 With respect to plaintiff's First Amendment claim, it is            clear  that  the restriction  on  "bill  later" materials  is            "reasonably  related  to  legitimate penological  interests."            Turner v. Safley, 482  U.S. 78, 89 (1987); see  Thornburgh v.            ______    ______                           ___  __________            Abbott,  490 U.S.  401,  413 (1989)  (prison restrictions  on            ______            incoming  correspondence  are  to  be assessed  under  Turner                                                                   ______            test).    The superintendent  here  explained  that the  pre-            payment  requirement  was  implemented  in  order  to prevent            inmates  from committing  fraud on businesses  and obligating            funds   beyond   their  means.     Contrary   to  plaintiff's            contention,  the legitimacy  of these  justifications "cannot            seriously be questioned."  Rodriguez v. James, 823 F.2d 8, 12                                       _________    _____            (2d  Cir. 1987).   Applying the  four criteria  enumerated in            Turner, see  482 U.S. at  89-91, other courts  have uniformly            ______  ___            upheld restrictions  similar to  that involved here  on First            Amendment  grounds.    See,   e.g.,  Rodriguez,  supra  (rule                                   ___    ____   _________   _____            requiring  that  all outgoing  mail  addressed  to commercial            entities  be submitted  in unsealed  form for  inspection, to            ensure that  all items ordered have  been prepaid); Theriault                                                                _________            v.  Magnusson, 698 F. Supp.  369, 371-72 (D.  Me. 1988) (rule                _________            requiring  that all  outgoing  correspondence  be  placed  in            envelopes  embossed  with prison  legend  to  deter fraud  on            businesses); Gardner v. Dalimonte, 1991 WL 71034 (Magis. W.D.                         _______    _________            Mich. 1991) (ban on book-club memberships); see also Eckford-                                                        ________ ________            El  v.  Toombs, 760  F. Supp.  1267,  1271 (W.D.  Mich. 1991)            __      ______            ("Prison officials  are justified in  forbidding inmates from            entering  into   certain  kinds  of   credit  arrangements.")            (dicta).                 With respect  to plaintiff's due process  claim, we need            not decide whether the pertinent state regulations suffice to            establish a property or liberty interest.  It is in any event            clear that plaintiff  received all the process  that was due.            The fact that he was not provided with prompt, written notice            of  the book's  return, as  required by  the  regulations, is                                         -3-            without consequence.   Plaintiff was  eventually so  notified            and   was  able  to  pursue  an  appropriate  appeal  to  the            superintendent.    In Procunier  v.  Martinez,  416 U.S.  396                                  _________      ________            (1974), the  Court upheld restrictions on  incoming mail that            required "that  an inmate be  notified of the  rejection ...,            that [he]  ... be given  a reasonable opportunity  to protest            that decision, and  that complaints be  referred to a  prison            official other than the person who originally disapproved the            correspondence."   Id. at 418-19.   Each of  these safeguards                               ___            was observed  here.  Contrary to  plaintiff's contention, the            prison regulations  did not  require a hearing  prior to  the            book's return.                  Plaintiff's central  argument on  appeal consists  of an            equal  protection   claim  that  was  not   presented  below.            "[T]heories not raised squarely  in the district court cannot            be  surfaced for  the  first  time  on  appeal."    McCoy  v.                                                                _____            Massachusetts Institute  of Technology, 950 F.2d  13, 22 (1st            ______________________________________            Cir. 1991), cert. denied,  112 S. Ct.  1939 (1992).  We  find                        ____________            the claim of dubious merit in any event.                  Affirmed.                 _________                                         -4-
