Leonard Every v. Bobby Jindal , 413 F. App'x 725 ( 2011 )

Case: 10-30492 Document: 00511388385 Page: 1 Date Filed: 02/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 21, 2011
No. 10-30492
Summary Calendar Lyle W. Cayce
Clerk
LEONARD EVERY,
Plaintiff-Appellant
v.
BOBBY JINDAL; JAMES LEBLANC; LYNN COOPER; BLAINE
VILLEMARETTE; SCOTT GAUTHIER; STACY BENJAMIN,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:09-CV-671
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Leonard Every, Louisiana prisoner # 116913, alleged in a 42 U.S.C. § 1983action that Louisiana Governor Bobby Jindal and officers and employees of the
Louisiana Department of Corrections conspired to deprive him of his
constitutional right to use the mail, and that they committed various acts of
nepotism and malfeasance. In the only four claims relevant to this appeal,
Every challenges the dismissal of claims concerning three instances of mail
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30492
censorship related to litigation in state court (Claims One, Two, and Four), and
the censorship of a letter to a Louisiana civil service official (Claim Three). All
other claims that were raised in the district court, including all claims against
Governor Jindal, are waived by Every’s failure to brief them here. See Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998).
The district court dismissed the claims both as frivolous and for failing to
state a claim under 28 U.S.C. §§ 1915 & 1915A and 42 U.S.C. § 1997e. We
review its ruling de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
A prisoner’s right to be free from unlawful interference with his mail,
including outgoing legal mail, arises from two distinct rights, the right of access
to the courts and the right of free speech, which is “the right to be free from
unjustified governmental interference with communication.” Brewer v.
Wilkinson, 3 F.3d 816, 820-21, 825-26 (5th Cir. 1993). To state a claim that
interference with mail denied him access to court, a prisoner must show an
actual injury by establishing that he was prevented from raising a nonfrivolous
claim concerning his conviction or the conditions of his confinement. Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999); see Lewis v. Casey, 518 U.S. 343,
349-50 (1996). If a prisoner contends that he was prevented from litigating a
claim that does not challenge his conviction or the conditions of his confinement,
he alleges no injury that would bring his claim within the scope of his right of
access to court. See Jones, 188 F.3d at 354; Ruiz, 160 F.3d at 275.
In his first, second, and fourth claims, Every asserts that mail censorship
prevented him from litigating in state court. He has expressly declined to
explain what nonfrivolous claims he was prevented from raising and has thus
abandoned any challenge to the dismissal of these access-to-court claims. See
Ruiz, 160 F.3d at 275. Moreover, the record supports the district court’s
conclusion that Every suffered no legal prejudice. See Lewis, 518 U.S. at 349-50.
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We affirm the district court’s dismissal of Every’s three access-to-court claims
pertaining to state court litigation.
However, Every’s third claim is different, as are his distinct assertions
that all four instances of mail censorship denied him his First Amendment right
to free speech. Prisoners retain free speech rights consistent “with the
legitimate penological objectives of the corrections system,”and restrictions on
those rights cannot be greater than necessary to protect the correctional
interests involved. Brewer, 3 F.3d at 821-22 (internal quotation marks, citations,
and alterations omitted). Thus, the First Amendment protects a prisoner from
mail censorship that is not “reasonably related to legitimate penological
interests.” Thornburgh v. Abbott, 490 U.S. 401, 409-12 (1989); Turner v. Safley,
482 U.S. 78, 89 (1987), see also Brewer, 3 F.3d at 823-25 & n.9. Prison officials
may not censor clearly-marked legal mail. Freeze v. Griffith, 849 F.2d 172, 175
(5th Cir. 1988). Censorship’s effect on free speech “need not be great in order to
be actionable.” Keenan v. Tejeda, 290 F.3d 252, 259 (5th Cir. 2002); see
McNamara v. Moody, 606 F.2d 621, 623, 625-27 (5th Cir. 1979) (upholding an
award of nominal damages, attorneys’ fees, and injunctive relief to a prisoner).
In Brewer, where the defendants allegedly censored a prisoner’s legal mail,
we distinguished a free speech claim from an access-to-court claim and noted
that different reviewing criteria apply to each claim. Brewer, 3 F.3d at 825-26.
We did not impose a legal prejudice requirement on the free speech claim, even
though it concerned the same mail as did the access-to-court claim. Id. at 826.
The district court regarded all of Every’s claims as access-to-court claims
and thus did not address Every’s distinct free speech claims. The court also
incorrectly applied an access-to-court analysis to Every’s claim concerning
nonlegal mail to the civil service agency. See Taylor v. Sterrett, 532 F.2d 462,
478-80 (5th Cir. 1976).
Accordingly, we vacate the district court’s dismissal to the extent that it
tacitly rejected Every’s free speech claims without considering them. On
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remand, the district court should consider, in light of Brewer, whether Every has
stated free speech claims concerning his state court litigation or his nonlegal
mail. We note that the district court need not reach the merits of any claim
against any defendant if dismissal is warranted on other grounds.
AFFIRMED IN PART; VACATED IN PART, AND REMANDED.
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