     Case: 16-41518      Document: 00514518255         Page: 1    Date Filed: 06/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 16-41518
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 19, 2018
                                                                          Lyle W. Cayce
ROBERT DANIEL KEYS,                                                            Clerk


                                                 Plaintiff-Appellant

v.

CORRECTION OFFICER II CANDACE TORRES; CLERK 3 KIESHA
COLLINS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE –
INSTITUTIONAL DIVISION; WARDEN RICHARD CRITES; DAVID DIAZ;
CARROL MONROE; JENNIFER SMITH; TEXAS BOARD OF CRIMINAL
JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE DIRECTOR’S
REVIEW COMMITTEE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE
MAILROOM SYSTEM COORDINATOR’S PANEL; WILLIAM STEPHENS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CV-350


Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41518

       Robert Daniel Keys, Texas prisoner # 873144, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint. 1 Keys filed a § 1983
complaint against numerous Texas Department of Criminal Justice employees
and officials and alleged violations of his First Amendment and due process
rights and attacked the constitutionality of TDCJ Board Policy 03.91, 2 which
is the TDCJ’s Uniform Offender Correspondence Rule. See Prison Legal News
v. Livingston, 683 F.3d 201, 207 (5th Cir. 2012). The basic facts underlying
Keys’s complaint are that pursuant to Policy 03.91 the defendants confiscated
certain maps from his cell and denied receipt of numerous issues of Shotgun
News magazine that Keys had ordered.
       Keys sued defendants Jennifer Smith, Kiesha Collins, Candice Torres,
Carol Monroe, David Diaz, and Richard Crites in their individual capacities for
nominal and punitive damages. He also sued those defendants along with
Williams Stephens, to the extent they were still employed by the TDCJ, in their
official capacities for declaratory and injunctive relief. In their motion for
summary judgment defendants asserted that Keys had failed to exhaust his
administrative remedies as to his claims against defendants Diaz and Crites
concerning the confiscation of his maps, failed to establish any violation of his
First Amendment rights as a result of the enactment and enforcement of Policy
03.91, and failed to overcome the defendants’ entitlement to qualified
immunity. The district court granted the motion.
       A district court’s grant of summary judgment is reviewed de novo. Prison
Legal News, 683 F.3d at 211. Summary judgment is proper if the evidence


       1 Keys does not challenge, and therefore has abandoned any challenge to, the district
court’s other rulings dismissing defendants and claims set forth in his complaints. See
Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007); Yohey v. Collins, 985 F.2d 222, 224–25
(5th Cir. 1993).
       2 At all relevant times, Policy 03.91 (2010) was in effect; in 2013, however, it was

amended. See Policy 03.91 (rev. 2, 2010); Policy 03.91 (rev. 3, 2013).


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                                 No. 16-41518

shows there is no genuine dispute as to a material fact and the movant is
entitled to judgment as a matter of law. Id. (citing FED. R. CIV. P. 56(a)). We
view the evidence in the light most favorable to the nonmoving party. Id.
                                       I.
      The record demonstrates that Keys failed to exhaust his claims that in
December 2010 Diaz and Crites improperly confiscated his maps under Policy
03.91. See Jones v. Bock, 549 U.S. 199, 211–12 (2007); Johnson v. Johnson,
385 F.3d 503, 515 (5th Cir. 2004); Wright v. Hollingsworth, 260 F.3d 357, 358
(5th Cir. 2001). His conclusional assertions to the contrary are belied by the
record and are insufficient to satisfy his summary judgment burden. See
Prison Legal News, 683 F.3d at 211; Duffie v. United States, 600 F.3d 362, 371
(5th Cir. 2010); Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
                                       II.
      Keys argues that Policy 03.91 is unconstitutional on its face and as
applied to him. For his “as-applied” argument, Keys asserts that his First
Amendment rights were violated when defendants denied him receipt of
numerous issues of his Shotgun News magazine on the grounds that certain
images were proscribed by Policy 03.91 because they described the
manufacture of weapons.
      Prison mail regulations that restrict the flow of publications to an
inmate, such as Policy 03.91, are analyzed under the reasonableness standard
set forth in Turner v. Safley, 482 U.S. 78, 89 (1987). Thornburgh v. Abbott, 490
U.S. 401, 413–14 (1989). In Turner, the Supreme Court held that a prison
regulation that impinges on an inmate’s constitutional rights is “valid if it is
reasonably related to legitimate penological interests.” 482 U.S. at 89; see also
Thornburgh, 490 U.S. at 413–14. The Turner Court then set forth the following
factors to consider when determining the reasonableness of the regulation at



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issue: (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) what “is the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally;” and (4) whether there are “obvious,
easy alternatives” to the regulation. 482 U.S. at 89–91. “Rationality is the
controlling factor, and the remaining factors are best understood as indicators
of rationality.” Prison Legal News, 683 F.3d at 214–15 (cleaned up).
      The inmate has the burden of demonstrating that there is no rational
relation to a legitimate penological interest. See id. at 216; see also Overton v.
Bazzetta, 539 U.S. 126, 132 (2003) (“The burden, moreover, is not on the State
to prove the validity of prison regulations but on the prisoner to disprove it.”).
Courts give considerable deference to the decisions of officials who regulate
prison administration and operations. See Thornburgh, 490 U.S. at 407–09;
Turner, 482 U.S. at 84–85, 89.
      Applying the Turner factors, Policy 03.91 is constitutional on its face and
as applied to Keys.     Policy 03.91, which provides in relevant part that a
publication can be rejected due to content if it contains information regarding
the manufacture of weapons, was promulgated to promote prison safety and
security. Prison Legal News, 683 F.3d at 215–18. There is no question that
the policy’s goal of promoting safety and security is a valid penological interest;
the Supreme Court has expressly recognized that protecting prison security is
“central to all other corrections goals.” Thornburgh, 490 U.S. at 415 (internal
quotation marks and citation omitted); see also Turner, 482 U.S. at 89–93;
Prison Legal News, 683 F.3d at 215–18; Chriceol v. Phillips, 169 F.3d 313, 316
(5th Cir. 1999).



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      Policy 03.91 is also facially neutral. Thornburgh, 490 U.S. at 415. The
policy provides that a publication may be rejected due to content if it includes
contraband; material written solely for the purpose of communicating
information designed to achieve the breakdown of prisons; information
concerning the manufacture of explosives, weapons, and drugs; material
related to setting up and operating criminal schemes; or sexually explicit
images. Because Policy 03.91 makes distinctions between publications based
on potential implications for prison security, which are unrelated to the
suppression of expression, the policy is “facially neutral in the relevant sense.”
Prison Legal News, 683 F.3d at 215 (internal quotation marks and citation
omitted); see Thornburgh, 490 U.S. at 415. Accordingly, Policy 03.91 is facially
constitutional.
      With respect to Keys’s “as-applied” challenge, prison officials have
determined that an inmate’s possession of a publication, such as Shotgun
News, containing information regarding the manufacture of weapons poses a
security threat for numerous reasons. 3 There is no evidence that the exclusion
of Shotgun News was arbitrary, irrational, or biased. See Prison Legal News,
683 F.3d at 216, 220 n.8. In light of the deference given to the determinations
of prison officials, which “must be at its zenith in the context of challenges to
individualized decisions implementing a facially constitutional policy,” the
rejection of Shotgun News was rationally related to the legitimate penological
interest of maintaining prison safety and security. Id. at 221. So the first
Turner factor is resolved in favor of the defendants.




      3  The only publication considered by this court with respect to Keys’s “as-applied”
challenge is Shotgun News. The other publications and correspondence Keys mentions on
appeal are not properly before us. See FED. R. CIV. P. 15(d); Longoria, 507 F.3d at 901;
Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App.—Fort Worth 1997).


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         The second Turner factor looks to whether there is an alternative means
of exercising the asserted right that remains open. 482 U.S. at 90, 92. The
right in question is construed “sensibly and expansively.” Thornburgh, 490
U.S. at 417. The restriction here of Shotgun News does not prevent Keys from
ordering other magazines or books that would be permissible under prison
regulations. See Prison Legal News, 683 F.3d at 218. Policy 03.91 permits
Keys to send, receive, and read countless other publications. See Thornburgh,
490 U.S. at 417–18; Prison Legal News, 683 F.3d at 218–19. Because Keys has
other means of exercising his rights, this factor also weighs in defendants’
favor.
         The third Turner factor is “the impact that accommodation of the
asserted constitutional right will have on others (guards and inmates) in the
prison.” Thornburgh, 490 U.S. at 418. The exclusion of Shotgun News is
rationally related to prison safety and security; permitting the magazine could
have a “ripple effect” on the security of other inmates and staff. Id.; Turner,
482 U.S. at 90. Consequently, this factor too weighs in defendants’ favor.
         The fourth Turner factor looks to whether the prison has an easy
alternative that will accommodate the prisoner’s rights at a de minimis cost to
the valid penological interest. 482 U.S. at 90–91. Keys’s proposed alternative
to the all-or-nothing rule of Policy 03.91 is the so-called clip rule. Under the
clip rule, the rejected portions of a publication are removed while the rest of it
is sent to the inmate. See Thornburgh, 490 U.S. at 418–19. But the clip rule
has been rejected as a viable alternative by the Supreme Court. Id.; see also
Prison Legal News, 683 F.3d at 218. This factor thus weighs in defendants’
favor.




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                                       No. 16-41518

       Because the rejection of Shotgun News under Policy 03.91 was
reasonably related to the legitimate penological interests of safety and
security, Keys can show no First Amendment violation. See 482 U.S. at 89.
                                             III.
       Keys also argues that the appeals process provided for under Policy 03.91
violates due process. The purpose of due process is to “protect a substantive
interest to which the individual has a legitimate claim of entitlement.” McFaul
v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012) (internal quotation marks and
citation omitted).       As we have explained, Keys has not shown that the
defendants violated a constitutionally protected interest that could form the
basis of a due process claim. 4 See id.
                                              IV.
       Qualified immunity affords government officials protection against
individual liability for civil damages “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks and citation omitted).                  Keys has not shown a
violation of either his First Amendment or due process rights. The defendants
are therefore entitled to qualified immunity. See Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010).
                                             ***
       The district court’s judgment is AFFIRMED, and Keys’s motion to
appoint counsel is DENIED as moot.




       4 The current version of Policy 03.91 provides an inmate with the opportunity on
appeal to present arguments against the rejection of a publication. Policy 03.91 (rev. 3, 2013).


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