     Case: 16-31129      Document: 00514290778         Page: 1    Date Filed: 01/02/2018




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

                                    No. 16-31129                                 FILED
                                  Summary Calendar                         January 2, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
JUSTIN L. MARINO,

                                                 Plaintiff-Appellant

v.

C. MAIORANA; FEDERAL BUREAU OF PRISONS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:15-CV-1805


Before REAVLEY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Justin L. Marino, federal prisoner # 55184-060, appeals the dismissal of
his Bivens 1 action against Warden C. Maiorana of the Federal Correctional
Institute in Oakdale, Louisiana (FCIO), and the federal Bureau of Prisons
(BOP). According to Marino, Maiorana and the BOP violated his rights under
the First Amendment by intercepting and/or confiscating a book, “The Basics


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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

       1Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
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                                 No. 16-31129
of Hacking and Penetration Testing, 2nd Edition: Ethical Hacking and
Penetration Testing Made Easy,” and other books on computer hacking which
were sent to him by mail while he was incarcerated in FCIO. We review de
novo the district court’s dismissal as frivolous and for failure to state a claim
under 28 U.S.C. § 1915A. See Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998).
      The district court properly concluded that a Bivens claim may not be
brought against a federal agency such as the BOP. See FDIC v. Meyer, 510
U.S. 471, 484-85 (1994). Additionally, the district court properly determined
that Marino’s request for injunctive relief is moot following his transfer to
another BOP facility and receipt of the only book which he specifically named
in his suit. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).
      Turning to Marino’s First Amendment claim, we consider four factors in
assessing the reasonableness of the restriction on his constitutional rights: (1)
whether there is a rational relationship between the prison regulation and the
legitimate governmental interest put forward to justify it; (2) whether the
inmate has an available alternative means of exercising the rights; (3) the
impact of accommodation on other inmates, guards, and allocation of prison
resources; and (4) the presence or absence of easy and obvious alternative
means to accommodate the right. Turner v. Safley, 482 U.S. 76, 89-91 (2005);
see also Prison Legal News v. Livingston, 683 F.3d 201, 214 (5th Cir. 2012).
      Marino does not contend that BOP Program Statement 5266.11 is
unconstitutional, and such a contention would be unavailing in any event. See
Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989). Instead, Marino argues
that the prison officials applied the policy to him in a manner that violates his
constitutional rights because he sought the books for the proper purpose of
completing his degree in cybersecurity and computer programming, and



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because the prisoner computers have no network connections. Marino fails to
overcome the deference accorded prison officials for institutional operations,
given that hacking, or the unauthorized access of the coding or data on an
electronic device, is neither limited to networked systems nor to desktop
computers. See Turner, 482 U.S. at 89; United States v. McCraney, 99 F. Supp.
3d 651, 656 (E.D. Tex. 2015). The prison’s rejection of publications teaching
methods of hacking computer systems was rationally related to the legitimate
penological interests of maintaining security and not facilitating criminal
activity. See Abbott, 490 U.S. at 414; Prison Legal News, 683 F.3d at 216.
      As to the availability of alternative means to exercise his right to reading
materials, we construe Marino’s right “sensibly and expansively,” Abbott, 490
U.S. at 417, and conclude that the availability of other reading materials,
permissible under the prison policies, is sufficient to weight this factor in favor
of the prison official. See Abbott, 490 U.S. at 417-18; Prison Legal News, 683
F.3d at 218. Moreover, guards and other prisoners stand to be negatively
impacted through the “ripple effects” on information security and, potentially,
facilitated criminal activities if the prison accedes to Marino’s efforts to learn
how to illegally access the coding and data in electronic devices. Abbott, 490
U.S. at 418; Turner, 482 U.S. at 90. Additionally, Marino proposes no obvious
or easy alternative which would permit him access to such materials but still
accommodate the prison’s security concerns. See Turner, 482 U.S at 90. Based
on the Turner factors, we conclude that the prison’s interception of Marino’s
computer hacking manual was reasonably related to legitimate penological
interests and Marino has shown no First Amendment violation. See Turner,
482 U.S. at 89. We likewise conclude that the disciplinary action which Marino
seeks to have expunged served the legitimate penological objectives asserted
by the Warden and represented no atypical hardship stating a constitutional



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deprivation.   See Sandin v. Conner, 515 U.S. 472, 484 (1995); Morgan v.
Quarterman, 570 F.3d 663, 667 (5th Cir. 2009).
      To the extent that Marino seeks to challenge actions of prison officials at
the Federal Correctional Institute in Fort Dix, New Jersey, in intercepting
similar materials, the officials are not named defendants in the instant matter,
the BOP is not a proper party to this Bivens claim as noted above, and Marino
makes these factual allegations for the first time on appeal. See Meyer, 510
U.S. at 484-85. Because these are not legal issues and failure to consider them
results in no manifest injustice, they are not reviewable. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      The judgment of the district court is AFFIRMED.




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