                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 91-6237.

                                         Summary Calendar.

                      Kenneth Gregory THOMPSON, Jr., Plaintiff-Appellant,

                                                  v.

                         Linda PATTESON, et al., Defendants-Appellees.

                                           March 5, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

       GARWOOD, Circuit Judge:

       Plaintiff-appellant Kenneth Gregory Thompson, Jr. (Thompson), an inmate in a Texas state

prison, brings this appeal from the dismissal pursuant to 28 U.S.C. § 1915(d) of his civil rights suit

challenging the withholding of certain sexually explicit publications that he ordered through the mail.

We affirm.

                                   Facts and Proceedings Below

       Thompson, an inmate at the Darrington Unit state prison in Rosharon, Texas, commenced this

civil rights suit with a pro se complaint on October 16, 1991, alleging a deprivation of his

constitutional rights in the withholding of certain books and magazines deemed to be impermissible

under prison regulations because they would encourage deviate, criminal sexual behavior. He sought

declaratory and injunct ive relief, as well as compensatory and punitive damages, against James A.

Lynaugh (Lynaugh), former director of the Texas Department of Corrections (TDC) (predecessor

to the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID)); Linda Patteson

(Patteson), chief coordinator of the Mail System Coordination Panel; Linda Safley (Safley),

supervisor of the Darrington Unit mail system; and Stella Whitlock (Whitlock) and Stacy Laird

(Laird), mail clerks at the Darrington Unit prison.

       Thompson's complaint alleges that in April 1991 he ordered through the mail ten paperback
books and four back issues of Penthouse Letters magazine. When the books arrived two months

later, Whitlock informed him that only two of the ten had been approved for Thompson to receive.

The other books had been rejected under Rule 3.9.10.6 of the TDC correspondence rules, which

allows denial of publications for which "a specific factual determination has been made that the

publication is detrimental to prisoner's rehabilitation because it would encourage deviate criminal

sexual behavior." Rule 3.9.10.6 further provides: "Publications shall not be excluded solely because

they have sexual content.        Publications that contain graphic depictions of homosexuality,

sodo-masochism [sic], bestiality, incest or sex with children will ordinarily be denied. Publications

that are primarily covering the activities of any sexual or political rights groups or organizations will

normally be admitted." According to the complaint, Tho mpson requested and received a written

notification specifying the reasons for denial of each publication. The notice identified particular

pages of each book that contained graphic depictions of sex with a child, graphic depictions of incest,

or graphic depictions of women engaging in homosexual activity. The notice also stated with regard

to each book that it did not qualify for clipping under Rule 3.9.11.2, which obligates the prison

officials, at the prisoner's request, to remove the objectionable material only if it is contained on five

or fewer pages.

        Thompson protested to Whitlock and Laird that the denial of these books was arbitrary,

because other inmates received publications such as Playboy, Penthouse, Genesis, and Velvet

magazines with the identical sexual subject matter. Whitlock and Laird allegedly acknowledged the

truth of his observation, but maintained that they had no choice but to follow departmental directives.

Thompson appealed the decision to the Director's Review Committee (DRC), which upheld the denial

of the books.

        In July 1991, two of the issues of Penthouse Letters ordered by Thompson arrived in the mail.

(The other two had been discontinued.) Safley informed Thompson that these magazines had also

been denied under Rule 3.9.10.6. Again, Thompson was given a written notification identifying the

pages containing objectionable material, in this instance graphic depictions of women engaging in

homosexual activity and graphic depictions of sadomasochistic bondage. When Thompson reiterated
his objection about the arbitrariness of the denial, Safley allegedly agreed with him but explained that

Playboy and Penthouse had prevailed in lawsuits against TDCJ-ID, allowing their publications to be

delivered to inmate subscribers without being reviewed. Penthouse Letters was apparently not

included in the lawsuit. Safley also allegedly told Thompson that since the DRC had already reviewed

the two magazine issues, the decision was not appealable. A week later, Thompson was similarly

thwarted in his attempt to receive two issues of Adams Girls International magazine. These were

denied because they graphically depicted male and female homosexuality. One of these issues,

however, was subsequently given to Thompson after three pages containing objectionable material

were clipped out.

        Thompson thereupon wrote to both Patteson, who was in charge of the DRC, and Lynaugh,

explaining that the correspondence rules were being applied inconsistently and in violation of his

rights. Neither responded nor took corrective action.

        Thompson's complaint alleged four causes of action:           (1) that the promulgation and

enforcement of the correspondence rules violated his First Amendment rights by denying him

publications while allowing similarly situated inmates to receive publications of the same nature, and

by infringing on his freedom of expression in allowing his access to publications to be governed by

prison officials' standards of decency rather than his own; (2) that the defendants had violated the

Fourth Amendment by depriving him of publications that were his private property while permitting

other inmates to retain similar property; (3) that the defendants had violated the Due Process Clause

of the Fourteenth Amendment by depriving him of his property with procedures that were inadequate

because they included no showing that the rehabilitative or security concerns of receiving sexually

oriented material were different or greater for him—an inmate not incarcerated for a sex

offense—than for other inmates allowed to receive comparable material; and (4) that the defendants

had violated the Equal Protection Clause by treating him unequally in the seizure of his property

relative to the other inmates.

        Thompson filed an application to proceed in forma pauperis and moved for the appointment

of counsel. On October 30, 1991, the district court granted Thompson in forma pauperis status and
dismissed the suit pursuant to 28 U.S.C. § 1915(d), concluding that the complaint had "no arguable

basis in law and fact." The district court noted in its dismissal order that Rule 3.9.10.6 was part of

the correspondence rules promulgated and approved in the litigation culminating with Guajardo v.

Estelle, 568 F.Supp. 1354 (S.D.Tex.1983), and that because under those cases Thompson's First

Amendment rights did not override the institution's security and administrative interests, Thompson

had not demonstrated a constitutional violation. Thompson brings this appeal from the district court's

dismissal.

                                              Discussion

        Section 1915(d) authorizes dismissal of an in forma pauperis proceeding if the district court

is "satisfied that the action is frivolous or malicious." Though a complaint is not frivolous for the

purposes of section 1915(d) merely because it fails to state a claim according to the standards of

Fed.R.Civ.P. 12(b)(6), Nietzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989),

it is frivolous if it lacks an arguable basis in law or fact. See Ancar v. Sara Plasma, Inc., 964 F.2d

465, 468 (5th Cir.1992). District courts are afforded broad discretion in making this determination.

Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 417, 107

L.Ed.2d 382 (1989).

        As noted by the district court, Thompson's claims are to a large degree foreclosed by the

resolution of the prisoner correspondence issues in the Guajardo litigation. In Guajardo v. Estelle,

580 F.2d 748 (5t h Cir.1978), this Court considered prison officials' authority to censor incoming

publications that they considered pornographic. In rejecting the view that prison officials could ban

only materials that had been judicially declared obscene, i.e., that the plaintiffs' First Amendment

rights were unaffected by the individuals' confinement and status as prisoners, we held that such rights

"cannot be evaluated without reference to that environment and to the type of audience it involves."

Id. at 762. Noting that nonconsensual homosexuality was a significant problem in Texas prisons that

authorities undoubtedly had a legitimate rehabilitation interest in preventing, and that the introduction

of pornographic material could exacerbate the situation, we concluded that officials could, consistent

with the First Amendment, limit access to sexually explicit material. Because the l imits on the
inmates' First Amendment rights could not be guided solely by "the whims of administrators," we set

forth the following guidelines: "Before delivery of a publication may be refused, prison administrators

must review the particular issue of the publication in question and make a specific, factual

determination that the publication is detrimental to prisoner rehabilitation because it would encourage

deviate, criminal sexual behavior. Prisoners must, of course, be allowed to appeal that decision

through proper administrative channels." Id. (citations omitted).

       These guidelines were formalized as Rule 3.9.10.6, which was invoked to withhold

Thompson's books and magazines. The additional language from Rule 3.9.10.6 quoted above, i.e.,

the indications that graphic depictions of homosexuality, sadomasochism, and incest would ordinarily

be denied whereas publications primarily covering the activities of sexual rights groups would

normally be admitted, was added as part of a settlement agreement in the same litigation. The

settlement was approved as fair and reasonable. See Guajardo v. Estelle, 568 F.Supp. 1354, 1364

(S.D.Tex.1983).

        Thompson neither contends that the defendants failed to make the specific finding called for

by Rule 3.9.10.61 nor asks t his Court to overturn that finding, i.e., he does not argue that the


   1
     He does apparently argue that under the circumstances the prison officials' finding that the
material would encourage deviate criminal sexual behavior cannot be accepted because they have
allowed similar material to other inmates and have not made any special finding that Thompson's
rehabilitative needs are greater than the other inmates', and that without such a special finding the
withholding of his books and magazines deprives him of due process. This argument rests on a
premise of disparate treatment that we discuss infra. However, to the extent that his argument
also suggests that due process entitled him to a more particularized finding attuned to his own
criminal history and behavior while in custody, it is contrary to the rationale of Guajardo. Access
to sexually explicit materials is restricted not merely in order to promote the rehabilitation of the
particular recipient from his past offenses, but to maintain order and safety in an overall
environment in which sex offenses are a continuing threat. See Guajardo, 580 F.2d at 762 ("We
are not willing to condone the introduction of material into the prison that would exacerbate the
situation [of nonconsensual homosexuality].") (emphasis added); see also Thornburgh v. Abbott,
490 U.S. 401, 412, 418, 109 S.Ct. 1874, 1881, 1884, 104 L.Ed.2d 459 (1989) (noting that in
considering the probable impact of accommodation of an inmate's asserted constitutional right to
publications, courts must be aware of the "ripple effect" caused by the likelihood that the material
will circulate within the prison). Rule 3.9.10.6 calls only for a finding that the material would
encourage deviate sexual criminal behavior; it does not require a finding that the particular
recipient is likely to engage in such behavior. Guajardo endorsed this as a valid accommodation
of inmates' First Amendment rights to obtain these materials through the mail and thus necessarily
also decided that the procedure was an adequate one for whatever property interests inmates
acquire in the publications by ordering them through the mail.
defendants withheld material not properly covered by Rule 3.9.10.6. He also does not challenge the

general groupings contained in the provisions added to Rule 3.9.10.6 by the settlement agreement.

Rather, his First Amendment claim appears to be a facial challenge to the initial rule itself: he argues

that the very practice of limiting access to sexually oriented materials embodied in the rule is

unconstitutional.2 This claim is foreclosed by Guajardo and by Supreme Court precedent. The

Supreme Court has stated that a prisoner retains "those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate penological objectives of the

corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495

(1974). In Guajardo, we struck this balance bet ween the prison's rehabilitation and security

objectives and the prisoner's First Amendment rights by authorizing the procedure followed by the

Darrington Unit prison here. The Supreme Court, in considering a First Amendment challenge to

comparable Federal Bureau of Prison regulations, has more recently affirmed that courts effect the

proper balance by scrutinizing such regulations only under a reasonableness standard: "[s]uch

regulations are "valid if [they are] reaso nably related to legitimate penological interests.' "

Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 1881, 104 L.Ed.2d 459 (1989) (quoting

Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)). Our Guajardo

decision long ago settled that the general practice authorized by Rule 3.9.10.6 fits easily within this

standard.

        The remainder of Thompson's claims, though given various labels, are all in essence equal

protection challenges; he contends that he was subjected to disparate treatment by the prison

authorities in that other inmates were allowed to receive publications of comparable content. He does

not allege, though, that he was denied access to publications such as Playboy, Penthouse, and Velvet

that were permitted to other prisoners, or that other prisoners would have been allowed to receive

the books and magazines he ordered. His complaint contains no suggestion whatsoever that he was

subject ed to discriminatory treatment in the sense of being treated differently because of some

   2
    As stated in his complaint, "the correspondence regulations permits a minority to decide what
is good for the majority, notwithstanding that the freedom of choice and the freedom of the
printed word is entitled to the greatest protection."
personal or class characteristic such as race o r religion, or because of any other improper motive.

Rather, his complaint in substance alleges discrimination against the publications he wishes to

procure. However, as noted above, he does not allege that the defendants made a subject-matter

distinction not authorized by the correspondence rules; insofar as Thompson's complaint reveals, the

defendants' application of the rules to the publications he ordered is unobjectionable except when

viewed in conjunction with the defendants' other screening decisions.

        We think it is entirely clear that such an equal protection claim has no arguable merit. The

objectives being pursued by the defendants were the legitimate and neutral ones of preserving prison

security and promoting rehabilitation, and in their judgment exclusion of Thompson's books and

magazines furthered those objectives. The rules necessarily confer a certain degree of discretion on

the prison authorities in making this determination, and absent any allegation of an improper motive,

a mere claim of inconsistent outcomes in particular, individual instances furnishes no basis for relief.

As the Abbott Court noted, "greater consistency might be attainable only at the cost of a more

broadly restrictive rule against admission of incoming publications." Abbott, 490 U.S. at 417, 109

S.Ct. at 1883 n. 15.

        For the foregoing reasons, we conclude that the district court did not abuse its discretion in

adjudging Thompson's claims to be without an arguable basis in law or fact, and thereby subject to

dismissal under section 1915(d). Moreover, because Thompson's suit was not one alleging that his

publications were excluded because of an improper application of the correspondence rules, the

district court did not err in failing to examine the rejected publications before dismissing the suit. Cf.

Abbott, 490 U.S. at 419, 109 S.Ct. at 1885 (failure by the district court to m ake individual

determinations regarding the specific exclusions required remand).

                                              Conclusion

        Because Thompson has not shown that his claim had an arguable basis in law or fact, the

dismissal by the district court is

        AFFIRMED.
