      IN THE UNITED STATES COURT OF APPEALS
               FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                               Fifth Circuit

                                            FILED
                                                             March 3, 2009

                            No. 06-20443              Charles R. Fulbruge III
                                                              Clerk

SCOTT A SAMFORD, JR

                                     Plaintiff - Appellant
v.

DOUG DRETKE; WARDEN STAPLES; DOCTOR SCARMADO; LISA
VATANI, Health Provider; MINNIE CROUCH; UNIT WARDEN OF LAW
LIBRARIAN

                                     Defendants - Appellees




SCOTT A SAMFORD, JR

                                     Plaintiff - Appellant
v.

DOUGLAS DRETKE

                                     Defendant - Appellee


             Appeal from the United States District Court
              for the Southern District of Texas, Houston
                           No. 4:06-CV-497


Before KING, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Scott Samford, Texas prisoner # 835644, appeals the dismissal of his
§ 1983 suit in which he alleged that defendants improperly prevented him from
communicating with his two sons. Samford was convicted of aggravated assault
after he brought a handgun to his ex-wife’s house when his sons were present
and, after threatening to shoot his ex-wife and any police officers that might
arrive, shot himself just outside the front door. He survived and pleaded nolo
contendere to aggravated assault. The sentencing court initially placed Samford
on probation with the condition that he have no contact with his ex-wife and
sons, but he violated that condition and was sentenced to 20 years’ incarceration.
While in prison, Samford’s sons were placed on his negative mail list and were
removed from his approved visitors list. Proceeding pro se and in forma pauperis
in the district court, Samford argued that restricting his communication with his
sons in these ways violates his First Amendment rights to freedom of speech and
association.     The district court, however, dismissed sua sponte Samford’s
complaint as frivolous and as failing to state a claim. Samford now appeals, and
we affirm the judgment of the district court for the following reasons.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Scott Samford (“Samford”) and Cynthia Samford had two sons, Andrew
and Benjamin, before divorcing. After the divorce and on or about August 29,
1997, the boys—eleven and fourteen years old at the time—were at Cynthia’s
house when Samford arrived brandishing a handgun and threatening to shoot
Cynthia, any police officers that Cynthia might call, and himself. He made good
on the final threat and shot himself in the neck. After surviving the gunshot,
Samford pleaded nolo contendere to aggravated assault on January 15, 1998. In


       *
         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.

                                              2
her victim impact statement regarding the assault, Cynthia stated, “[m]y
children and myself are in constant fear for our lives due to Scott Samford’s
behavior and mental condition.” Samford was placed on five years’ probation on
the condition that he have no contact with Cynthia, Andrew, or Benjamin. A few
months later, Samford violated this probation condition by contacting his sons
and ex-wife and, on June 11, 1998, was sentenced to twenty years’ incarceration
with the Texas Department of Criminal Justice (“TDCJ”). While in prison,
“Cynthia Samford contacted the prison system and attempted to place Andrew
and Benjamin Samford on a ‘negative mail list,’” according to one of Samford’s
filings. Samford was then informed that Andrew and Benjamin had been placed
on his negative mail list;1 additionally, a letter was sent to Cynthia stating that
Andrew and Benjamin had been placed on Samford’s negative mail list. Andrew
and Benjamin were also removed from Samford’s list of approved visitors. Since
that time, Samford has repeatedly and unsuccessfully attempted to send letters
to Andrew and Benjamin. Some of these letters, according to Samford, have not
been returned to him. Further, when Samford’s mother attempted to send two
photos of the boys to Samford, he was not permitted to receive the photos
because the boys were on his negative mail list. The photos were sent back to
Samford’s mother. Samford does not allege that either Andrew or Benjamin has
ever attempted to visit or otherwise communicate with him.
      Samford challenged the limitations placed on his communication with
Andrew and Benjamin in two separate courts: the District Court for the
Northern District of Texas and the District Court for the Southern District of
Texas. The related claims were consolidated below.



      1
         The Offender Orientation Handbook states that “[o]ffenders shall be denied
permission to correspond with persons on their negative mailing list.” TDCJ, OFFENDER
OR I E N T A T I O N      HA N D B O O K       82     (2004),      available       at
http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf.

                                         3
        Samford filed his claim in the District Court for the Northern District of
Texas on May 17, 2005. He originally sued Cynthia, arguing that she violated
§ 1983 by conspiring with public officials to, among other things, prevent him
from communicating with his sons.            Samford subsequently amended his
complaint to include allegations against additional defendants, including
Douglas Dretke.      All of Samford’s claims were dismissed except his claim
alleging    that   Dretke   was     impermissibly   preventing    Samford    from
communicating with Andrew and Benjamin.              This remaining claim was
transferred to the District Court for the Southern District of Texas, where
Samford had filed a related suit.
        On June 8, 2005, Samford filed suit in the District Court for the Southern
District of Texas. He brought claims under § 1983 and argued that Dretke,
Warden Staples, Dr. Scarmado, Lisa Vatani, Minnie Crouch, and the law
librarian (“defendants”) violated his constitutional rights by denying him
medically based work restrictions, refusing to issue him adequate legal supplies
and storage for such supplies, and preventing him from communicating with his
sons. Samford sought damages and injunctive relief for these alleged violations.
After considering Samford’s more than forty filings, the district court dismissed
all the claims sua sponte under 28 U.S.C. §§ 1915(e)(2)(B)(i) & (ii) on April 28,
2006.
        Samford now appeals the dismissal of his § 1983 claim concerning the
restrictions on communicating with his sons. He argues that the district court
erred in concluding that defendants Dretke, Crouch, and Warden Staples did not
violate his First Amendment rights by preventing his communication with
Andrew and Benjamin through enforcing his negative mail list and by removing




                                         4
Andrew and Benjamin from his approved visitors list.2 The Texas Attorney
General, at our invitation, filed an amicus brief in support of defendants.
                             II. STANDARD OF REVIEW
       When a district court dismisses a complaint both as frivolous and as failing
to state a claim under §§ 1915(e)(2)(B)(i) & (ii), we review the dismissal de novo.
See Longoria, 507 F.3d at 901. To determine if a complaint fails to state a claim,
we apply the same standard of review applicable to dismissals made pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure and will uphold a
dismissal if, “taking the plaintiff’s allegations as true, it appears that no relief
could be granted based on the plaintiff’s alleged facts.” Harris v. Hegmann, 198
F.3d 153, 156 (5th Cir. 1999) (internal quotation marks omitted). Alternatively,
a claim may be dismissed as frivolous if “it lacks any arguable basis in law or
fact.” Id. “‘A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint alleges violation of
a legal interest which clearly does not exist.’” Id. (quoting Harper v. Showers,
174 F.3d 716, 718 (5th Cir. 1999)). A complaint lacks an arguable basis in fact
when “the facts alleged are fantastic or delusional scenarios or the legal theory
upon which a complaint relies is indisputably meritless.” Id. (internal quotation
marks omitted).
                                    III. DISCUSSION
       Samford appears before this court for a fourth time after stating meritless
claims in three prior civil rights suits. See Samford v. Staples, 231 F. App’x 374
(5th Cir. 2007); Samford v. Staples, 249 F. App’x 1001 (5th Cir. 2007); Samford



       2
          We note that these claims were only alleged against TDCJ, Dretke, Crouch, and
Warden Staples. Thus, our references to “defendants” specifically refer to these defendants.
Samford does not appeal any claim against the remaining defendants, and those claims are
therefore waived. See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (“Although we
liberally construe pro se briefs, such litigants must still brief contentions in order to preserve
them.”).

                                                5
v. Bowers, No. 00-10246, 2000 WL 1741640 (5th Cir. Nov. 16, 2000). His current
complaint challenges the enforcement of his negative mail list and the removal
of his sons from his approved visitors list. As in his previous suits, Samford’s
contentions fail to state a claim.
A.     Enforcing Samford’s Negative Mail List
       Samford avers that defendants violated his First Amendment rights by
restricting his communication with Andrew and Benjamin. His claims regarding
defendants’ intercepting his outgoing non-legal mail to his sons, defendants’
refusing to return the intercepted letters, and defendants’ preventing Samford
from receiving photos of his sons all center on defendants’ practices in enforcing
Samford’s negative mail list.3
       “[I]n determining the constitutional validity of prison practices that
impinge upon a prisoner’s rights with respect to mail, the appropriate inquiry
is whether the practice is reasonably related to a legitimate penological interest.”
Brewer v. Wilkinson, 3 F.3d 816, 824 (5th Cir. 1993) (applying the standard
articulated in Turner v. Safley, 482 U.S. 78 (1987)). Although the Supreme
Court has indicated that this standard applies to limitations on prisoners’
incoming mail and that the standard articulated in Procunier v. Martinez 4
applies to limitations on prisoners’ outgoing mail, see Thornburgh v. Abbott, 490
U.S. 401, 413–14 (1989), a panel of this court has interpreted Thornburgh to
apply the reasonableness standard set forth in Turner in both instances, see
Brewer, 3 F.3d at 824 (“Although the Court appeared to draw a distinction

       3
        In his brief, Samford additionally complains that he has not been permitted to call
Andrew and Benjamin on the telephone. Because he raises this argument for the first time
on appeal, we do not consider it. See Maringo v. McGuirk, 268 F. App’x 309, 311 (5th Cir.
2008).
       4
         416 U.S. 396, 413 (1974) (stating that “the regulation or practice in question must
further an important or substantial governmental interest unrelated to the suppression of
expression” and that “the limitation of First Amendment freedoms must be no greater than
is necessary or essential to the protection of the particular governmental interest involved”).

                                              6
between incoming and outgoing mail . . . , its ‘reading’ of Martinez in Thornburgh
suggests that Turner’s ‘legitimate penological interest’ test would also be applied
to outgoing mail.”); see also id. at 825–26 (applying the “legitimate penological
interest” test to plaintiffs’ challenges concerning defendants’ practice of
inspecting outgoing mail). The panel reasoned that Thornburgh’s distinction
between incoming and outgoing prisoner mail was based on the different
penological interests involved:
             We must first emphasize that the Supreme Court in
      Thornburgh made it clear that a distinction still exists between
      incoming prison mail and outgoing prison mail. But that distinction
      revolves around the differing penological concerns with respect to
      outgoing and incoming mail. Specifically, the Court recognized that
      “[t]he implications of outgoing correspondence for prison security
      are of categorically lesser magnitude than the implications of
      incoming materials.”
Id. at 825 (alteration in original) (quoting Thornburgh, 490 U.S. at 413); see also
Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (applying the Turner standard
to outgoing mail and stating “Martinez is limited to outgoing correspondence
when deciding the degree of security risk involved; however, . . . it appears that
Martinez should not be understood as establishing a special test that applies
only when evaluating the constitutionality of regulations governing outgoing
mail”).
      Under Turner, we evaluate the reasonableness of a practice by considering
four factors:
      (1) whether there is a “valid, rational connection between the prison
      regulation and the legitimate governmental interest put forward to
      justify it”; (2) “whether there are alternative means of exercising the
      right that remain open to prison inmates”; (3) “the impact
      accommodation . . . will have on guards and other inmates, and on
      the allocation of prison resources generally”; and (4) whether there
      are “ready alternatives that could fully accommodate[] the prisoner’s
      rights at de minimis cost to valid penological interests.”



                                        7
Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 607 (5th Cir. 2008)
(quoting Turner, 482 U.S. at 89–91). “[W]e have noted that rationality is the
controlling factor, and a court need not weigh each factor equally.” Id. Further,
our analysis must give due regard to the decisions of prison officials: “‘prison
administrators . . . , and not the courts, [are] to make the difficult judgments
concerning institutional operations.’” Turner, 482 U.S. at 89 (omission and
alteration in original); see also Freeman v. Tex. Dep’t of Criminal Justice, 369
F.3d 854, 863 (5th Cir. 2004) (“[T]he Court is equally cognizant of the inherent
demands of institutional correction, the deference owed to prison administrators,
and the subjugation of individual liberty that lawful incarceration necessarily
entails.”). We now turn to the application of these four factors in light of the
deference owed to prison administrators.
      Considering Turner’s first factor, defendants’ enforcement of Samford’s
negative mail list is rationally related to the legitimate interest of protecting
crime victims and their families from unwanted communications and
harassment by prisoners when a victim requests such protection. The district
court stated that defendants have a legitimate interest “in upholding court
orders, in rehabilitating inmates, and in protecting crime victims and their
families from unwanted harassment from inmates.”          Samford’s pleadings,
according to the court, admitted the existence of an ongoing court order that
prohibited Samford from contacting his children.       Even without the order,
however, the district court concluded that defendants’ actions are constitutional
because “a prison has a legitimate governmental interest in upholding a crime
victim’s simple wish to avoid communication directed at her or her children from
her assailant.”
      After reviewing Samford’s filings, we do not agree that Samford admits the
existence of an ongoing state court order; indeed, he has repeatedly denied the
existence of such an order. Nonetheless, we agree with the district court’s

                                       8
alternative reasoning. Prisons have a legitimate interest in protecting crime
victims and their families from the unwanted communications of prisoners when
a victim requests that the prison prevent such communication.5 See Berdella v.
Delo, 972 F.2d 204, 209 (8th Cir. 1992) (“[T]he government’s interest in
protecting the public from harassment by inmates would justify prohibiting an
inmate from sending mail to persons who have affirmatively requested that mail
not be received from an inmate.”); see also Jones v. Diamond, 594 F.2d 997, 1014
(5th Cir. 1979) (validating the use of negative mail lists and stating “jail officials
may employ a ‘negative mail list’ to eliminate any prisoner correspondence with
those on the outside who affirmatively indicate that they do not wish to receive
correspondence from a particular prisoner”); Guajardo v. Estelle, 580 F.2d 748,
753 (5th Cir. 1978) (affirming the district court’s determination that a negative
mail list does not violate prisoners’ First Amendment rights and stating that
such lists “permit [prison officials] to deny inmates permission to correspond
with persons who have objected to further correspondence”). And defendants’
enforcement of Samford’s negative mail list bears a rational connection to this
legitimate interest: Samford’s pleadings acknowledge that he was placed on
probation after pleading nolo contendere to aggravated assault when he went to
Cynthia’s home, where Andrew and Benjamin were located, and made various
threats before shooting himself just outside the front door.                   Further, he
acknowledges that his probation was conditioned on having no contact with
Andrew and Benjamin and that he nonetheless disregarded this condition.




       5
         Samford does not argue that the fact that both his sons have now reached the age of
majority undercuts the prison’s current reliance on the letter from Cynthia as a basis for
continuing the sons on Samford’s negative mail list, removing them from his approved visitors
list, and interdicting pictures of the sons. That said, we assume that if either son were to
attempt to reestablish contact with Samford, the prison would reconsider the mail, visitation,
and pictures restrictions related to that son.

                                              9
Thus, Turner’s first, and controlling, factor weighs in favor of the reasonableness
of defendants’ enforcement of Samford’s negative mail list.
      The second factor under Turner asks whether alternative means of
exercising the right remain open to the prisoner. This factor further favors
defendants’ practice of enforcing the negative mail list. Though Samford argues
that defendants’ enforcement of his negative mail list leaves him with no
alternative to communicate with Andrew and Benjamin, Samford’s own reply
brief evidences such an alternative. In it, Samford admits that his mother has
visited and brought messages to him from Cynthia. Samford’s mother could just
as easily relay oral messages from Andrew and Benjamin if they wished to send
such a message to Samford. See Overton v. Bazzetta, 539 U.S. 126, 135 (2003)
(stating that “inmates can communicate with those who may not visit by sending
messages through those who are allowed to visit” in concluding that inmates
have an alternative means of associating with individuals prohibited from
visiting).   “Alternatives . . . need not be ideal, however; they need only be
available.” Id. Thus, Samford is not completely prevented from communicating
with Andrew and Benjamin, and this factor supports the reasonableness of
defendants’ enforcement of the negative mail list.
      The third factor considers the impact that accommodating the prisoner’s
right will have on the allocation of prison resources and, here, cuts neither for
nor against the reasonableness of defendants’ enforcing Samford’s negative mail
list. It is the policy of TDCJ to maintain negative mail lists, and Samford here
seeks to remove two individuals from his list. Accommodating Samford in this
way would have little, if any, effect on the allocation of the prison’s resources.
      Under the fourth factor, the existence of alternatives to a practice may
undermine the reasonableness of that practice. However, “Turner does not
impose a least-restrictive-alternative test, but asks instead whether the prisoner
has pointed to some obvious regulatory alternative that fully accommodates the

                                        10
asserted right while not imposing more than a de minimis cost to the valid
penological goal.” Overton, 539 U.S. at 136; see also Victoria W. v. Larpenter, 369
F.3d 475, 484 (5th Cir. 2004) (stating that under Turner’s fourth factor, “an
inmate must present evidence of a ready alternative that fully accommodates a
prisoner’s rights at de minimis cost to valid penological interests”). Samford
fails to present an alternative to defendants’ enforcement of his negative mail
list other than the complete removal of Andrew and Benjamin from the list.
Thus, this factor does not undermine the reasonableness of defendants’ practice.
      Based on Turner’s factors, we conclude that defendants’ enforcement of
Samford’s negative mail list is reasonable.          Samford avers, however, that
defendants’ practice is unreasonable because the defendants have failed to
return some of his blocked letters as provided in the Offender Orientation
Handbook. He further contends that the same handbook states that a parent
outside the prison cannot place an inmate’s child on the negative mail list.
These arguments are unavailing. First, a prison official’s failure to follow the
prison’s own policies does not, itself, result in a constitutional violation. See
Richardson v. Thornton, No. 08-30012, 2008 WL 4933742, at *1 (5th Cir. Nov.
19, 2008) (“The failure of the prison to follow its own policies . . . is not sufficient
to make out a civil rights claim.”); Sandoval v. Fox, 135 F. App’x 691, 691–92
(5th Cir. 2005) (“The mere failure to comply with prison rules and regulations
does not, without more, give rise to a constitutional violation.”). Second, the
prison’s handbook also recognizes the interest of protecting victims by stating
that minor children of an inmate may be placed on that inmate’s negative mail
list when they are the victim of that inmate. And finally, the reasonableness of
preventing Samford from contacting Andrew and Benjamin is apparent given
the circumstances surrounding how Samford came to find himself imprisoned in
the first place.



                                          11
       Based on our application of the Turner factors, enforcing Samford’s
negative mail list is reasonable. Samford has therefore failed to state a claim.
B.     Removing Samford’s Sons From His Visitor List
       The district court did not separately address Samford’s claim that
defendants’ removal of his sons from his approved visitors list violated his
constitutional rights in reviewing the limitations on Samford’s communications;
however, reviewing de novo, we conclude that Samford has similarly failed to
state a claim based on the removal of Andrew and Benjamin from his approved
visitors list.
       “This Court has repeatedly held that for convicted prisoners ‘[v]isitation
privileges are a matter subject to the discretion of prison officials.’” Berry v.
Brady, 192 F.3d 504, 508 (5th Cir. 1999) (quoting McCray v. Sullivan, 509 F.2d
1332, 1334 (5th Cir. 1975)). Thus, even where a prisoner was prohibited from
visiting with his mother on a single occasion, we stated that “[the prisoner] has
no constitutional right to visitation privileges.” Id.; see also Charles v. Nance,
186 F. App’x 494, 495 (5th Cir. 2006) (“[P]risoners have no absolute
constitutional right of visitation.”). We need not go so far as to say Samford has
no right to visitation privileges, but we are satisfied that defendants’ removing
Andrew and Benjamin from Samford’s approved visitors list does not violate
Samford’s constitutional rights for the same reasons that justify defendants’
enforcement of Samford’s negative mail list. We further note that Samford does
not allege that his sons—who have both reached the age of majority according
to Samford’s filings—have ever attempted to visit him or that any such attempt
has been prevented.6 Therefore, Samford has failed to state a claim and his


       6
         Samford does contend that the letter sent by defendants informing Cynthia that
Andrew and Benjamin had been placed on Samford’s negative mail list prevented his sons
from visiting him. That letter, however, states nothing more than that Andrew and Benjamin
had been placed on Samford’s negative mail list. It said nothing with regard to whether
Andrew and Benjamin may visit Samford.

                                           12
complaint was properly dismissed. See Berry, 192 F.3d at 508 (“[T]he magistrate
judge properly dismissed [the prisoner’s] section 1983 claim based on the denial
of a visit . . . as both frivolous and for failure to state a claim . . . .”).
                                 IV. CONCLUSION
      For the above reasons, we AFFIRM the judgment of the district court.
Further, we note that while the current appeal was pending, this court imposed
a § 1915(g) bar against Samford. See Samford, 249 F. App’x at 1004–05. We
remind Samford that he is barred from proceeding in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g). Samford
is also warned that continued filing of frivolous actions or appeals may subject
him to increasingly severe sanctions, including monetary penalties. See Malone
v. Waggener, 296 F. App’x 422, 423 (5th Cir. 2008).




                                           13
