     Case: 09-60964     Document: 00511244067          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                        September 24, 2010
                                     No. 09-60964
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DAVID WEATHERSPOON,

                                                   Plaintiff-Appellant

v.

JOHN D. FERGUSON, President, CCA; CHRISTOPHER EPPS,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
RAYMOND BYRD, Warden for CCA; KIMBERLY KENT ROKASKY, Mailroom
Clerk for CCA,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                               USDC No. 4:08-CV-3


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        David Weatherspoon, Mississippi prisoner # 39891, appeals the district
court’s judgment granting summary judgment in favor of the appellees and
dismissing his 42 U.S.C. § 1983 complaint. He argues that the mail policy of the
Mississippi Department of Corrections (MDOC) impinges upon his constitutional
rights. He specifically challenges the policy with respect to its treatment of legal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-60964

and official mail. He argues that the policy, which states that all legal or official
mail must be sealed in the presence of a staff member of the Inmate Legal
Assistance Program (ILAP) before mailing, and that legal mail not bearing an
ILAP stamp will be returned to the inmate to comply with MDOC policy, violates
the Fourth Amendment. He asserts that the appellees improperly returned a
piece of his legal or official mail to him because he failed to comply with the
policy and that this refusal to process his mail was tantamount to an illegal
search or seizure.
      This court reviews a grant of summary judgment de novo. Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2). “[T]he party
moving for summary judgment must demonstrate the absence of a genuine issue
of material fact, but need not negate the elements of the nonmovant’s case.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal
quotation marks and citation omitted).
      We have set forth that in determining the validity of prison practices that
impinge upon a prisoner’s constitutional rights with respect to mail, the proper
inquiry is whether the practice is reasonably related to a legitimate penological
interest. See Brewer v. Wilkinson, 3 F.3d 816, 824-25 (5th Cir. 1993) (adopting
standard set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987)). We consider
the reasonableness of a prison practice by evaluating: (1) whether a valid,
rational connection exists 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
that accommodation will have on guards, other inmates, and 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 penological

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interests. Turner, 482 U.S. at 89-91. “[R]ationality is the controlling factor, and
a court need not weigh each factor equally.” Mayfield v. Tex. Dep’t of Criminal
Justice, 529 F.3d 599, 607 (5th Cir. 2008). Due regard also must be given to the
decisions of prison officials because “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).
      The record in this case establishes that the MDOC policy concerning legal
or official mail is rationally related to prison officials’ legitimate penological
interests in advancing the orderly administration of prisons and preventing and
discovering mail containing contraband or offensive content. Moreover, there is
a close relationship between these interests and the means by which the MDOC
policy seeks to accomplish them; only by discovering the contents of the mail and
insuring that the mail in fact is legal or official in nature can prison officials
guarantee that harmful matters are not sent outside the prison and that the
mail is properly categorized. The policy also does not categorically preclude
inmates from communicating with those on the legal or official mailing list, and
the record supports that the policy is designed to minimize the burden on others.
There also is no indication that there exists a less-restrictive manner by which
prison officials can vindicate their penological interests.
      Thus, the MDOC mail policy with respect to legal or official mail does not
impermissibly impinge upon Weatherspoon’s Fourth Amendment rights, and the
appellees did not commit an illegal search or seizure in this case. Id. at 89-91.
Given this determination, we pretermit discussion of whether certain defendants
were not liable because they were not personally involved in the alleged
constitutional violations.
      To the extent that Weatherspoon alleges that the MDOC policy denied him
access to the courts, we previously denied that claim on the ground that he did
not show that he was prejudiced by the appellees’ purported interference.
Weatherspoon v. Ferguson, 302 F. App’x 231 (5th Cir. 2008). To the extent that

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he seeks to raise a new claim that the mail policy violated the First Amendment
by interrupting the free flow of mail, he has not shown that he raised this issue
expressly in the district court, see Williams v. Ballard, 466 F.3d 330, 335 (5th
Cir. 2006) (noting that issues raised for the first time on appeal need not be
considered), or that the policy is unconstitutional for the above-detailed reasons.
He also has not established that the MDOC policy violates federal criminal
statutes related to the processing of mail. See generally Adams v. Ellis, 197 F.2d
483, 484-85 (5th Cir. 1952) (noting that statutes punishing theft or receipt of
stolen mail likely are inapplicable to prison administrators handling prisoner
mail).
         Accordingly, the district court did not err in granting the appellees’ motion
for summary judgment and in dismissing Weatherspoon’s § 1983 complaint. The
judgment is AFFIRMED.




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