796 F.2d 79

United States Court of Appeals,
Fifth Circuit.

Stewart M. MANN, Plaintiff-Appellant,

v.

Dallas SMITH, et al., Defendants-Appellees.

No. 84-1985.

Aug. 4, 1986.
*81 Stewart M. Mann pro se.
Patrick C. Appel, Baker & Botts, William J. Dyer, Houston, Tex., (Court Appointed-Not under Act), for plaintiff-appellant.
Mark H. Dettman, Midland, Tex., for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.

Before GEE and HIGGINBOTHAM, Circuit Judges, and HARVEY FN*, Senior District Judge.
FN* District Judge of the Eastern District of Michigan, sitting by designation.

PATRICK E. HIGGINBOTHAM, Circuit Judge:
A pretrial detainee at a county jail was subjected to a general rule under which inmates were forbidden to receive newspapers and magazines. The proffered justification for this rule was a desire to reduce the threat of fires and clogged toilets. In view of the jail's policy of allowing inmates to possess other material that was flammable and capable of being used to interfere with the plumbing, we hold that the rule is too underinclusive to be upheld under the applicable first amendment test.
The plaintiff also claims that he was denied his constitutional right of access to the courts because jail officials refused to let him visit a law library while he was preparing this case. We conclude that the plaintiff in fact had meaningful access to the courts even though he was denied the use of a law library.
I

Stewart Mann was held on criminal charges in the Midland County (Texas) Jail for 98 days as a pretrial detainee. After pleading guilty to the charges, he was held an additional 13 days before being transferred to the Texas Department of Corrections. During this time, he chose to live in a small private cell because prisoners in larger, general-population cells sometimes had to sleep on mattresses on the floor. Mann complains that he was subjected to the following conditions by the defendants: FN1
FN1. Some of Mann's factual allegations were disputed at trial. He also pressed a number of other claims in the district court, but these have not been pursued on appeal.
(1) Pursuant to a general policy at the jail, he was denied access to newspapers and magazines.
(2) Although he was permitted to request that specific law books be brought to him at the jail, he was denied the opportunity to visit a law library and was not provided by the jail with personal assistance from persons trained in the law.
(3) He was seldom or never permitted to go outside his cell for physical exercise.
(4) Because of plumbing problems at the jail, he was deprived of access to hot water for some period of time.
(5) On one occasion, an unarmed guard expressed a desire to take Mann outside and murder him.
(6) In his complaint in this lawsuit, Mann alleged that a crime information computer in the jail building was being misused by other inmates. After being transferred to the state prison, the Midland County Sheriff's Department asked the warden of that institution to question Mann about his knowledge of the problem. The warden did so.
(7) Some inmates who worked as file clerks at the jail had access to files on other inmates.
Mann also complains (8) that the defendants' answers to his amended complaints in this lawsuit were identical to their answer to his original complaint; and (9) that the guilty plea he entered while he was living in the jail was coerced.
While at the county jail, Mann filed a pro se § 1983 complaint against the Midland County Sheriff and a Deputy Sheriff, in *82 which he asked for declaratory and injunctive relief. After being transferred to the state prison, he amended his complaint to ask for damages. Following discovery and other procedural preliminaries, the district court held a bench trial, concluded that Mann had not been deprived of any federally protected right, and entered a take-nothing judgment in favor of the defendants. Mann appealed, and this court ordered that an attorney be appointed to represent him.
II

Mann's single meritorious argument is that the district court erred in concluding that the jail's policy of banning newspapers and magazines left his constitutional rights untouched. It is undisputed that the Midland County Jail had a policy that forbade inmates to receive or possess newspapers and magazines. The asserted justifications for this policy were that newspapers and magazines are fire hazards, and that they can be used to clog up the plumbing. It is also undisputed, however, that smoking by prisoners was banned; that the inmates were permitted to have softcover books; that writing paper and toilet paper were freely available; and that the inmates had sheets, blankets, pillows, and clothing that could be used to interfere with the plumbing.

Mann contends that the jail's policy on newspapers and magazines violated his rights under the first and fourteenth amendments. Because it is unconstitutional to inflict deliberate punishment on pretrial detainees, it is necessary to distinguish such punishment from justifiable "regulatory restraints." Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 1871-73, 60 L.Ed.2d 447 (1979). Absent an expressed punitive purpose, an intention to punish may nonetheless be imputed to jail officials if a disability imposed on an inmate is not "reasonably related to a legitimate governmental objective" or an "incident of a legitimate nonpunitive governmental objective." Id. at 538-39 & n. 20, 99 S.Ct. at 1874 & n. 20.
The defendants, who have not expressed an intention to punish Mann, assert that the purpose of the ban on newspapers and magazines is to prevent fires and clogged toilets. Because the jail has a no smoking rule for inmates and because the jailers permit the inmates to have other forms of paper and similar materials, the official rationale seems tenuous at best. Nevertheless, it is hard to deny that the rule might slightly reduce the possibility of fire and that it might remove some opportunities and temptations for the inmates to do mischief to the plumbing; furthermore, the jail's rule would rather obviously serve the convenience of the jailers by helping to keep trash from piling up in the inmates' living areas. Under the general test articulated in Bell v. Wolfish, which is designed to root out intentional punishment rather than self-serving inconsiderateness, we doubt that the jail's rule constitutes unconstitutional punishment.
We need not decide this question, however, because the ban on newspapers and magazines must be struck down under the first amendment FN2 if it represents an "exaggerated response" by jail officials to the legitimate need to "preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878-79. The patently underinclusive nature of the regulation strongly suggests that it is indeed an exaggerated response; certainly it contrasts with the carefully tailored restriction on hardbound books that was upheld in Bell v. Wolfish itself. Perhaps the jail officials who established this policy had some very important and legitimate purpose that could not be accomplished without denying the inmates access to newspapers and magazines. If so, the defendants' lawyers have not brought it to our attention, and we have not been able to imagine what it could have been.
FN2. The free speech clause of the first amendment operates against the states through the Supreme Court's construction of the fourteenth amendment's due process clause. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925).
*83 The defendants seek to defend the regulation by noting that the jail provides the inmates in general-population cells (where Mann could have lived had he so chosen) with access to television, which the defendants contend is an adequate substitute for newspapers and magazines. They accordingly argue that the ban on certain printed materials is a legitimate "time, place, and manner" restriction. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). Whatever the intrinsic merits of television in comparison with newspapers and magazines, the contents of television are different from what one finds in the printed media. It is not up to the Midland County Sheriff or this court to decide that television can adequately serve the first amendment right to receive protected materials. FN3 Rather, we must apply the principle that "a prison inmate 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). Although jail officials may find it inconvenient to give inmates access to newspapers and magazines, the defendants have not suggested how such access is inconsistent with any legitimate jail function. Because it is undisputed that Mann sought to obtain newspapers and magazines while he was being held at the jail, we must conclude that Mann's constitutional rights were infringed by the jail's policy and reverse the judgment of the court below. FN4
FN3. On the first amendment right to receive information and ideas, see Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581-82, 33 L.Ed.2d 683 (1972) (collecting cases).
FN4. In Kincaid v. Rusk, 670 F.2d 737 (7th Cir.1982), the court found a violation of the first amendment on facts that were similar to those in the present case.

III

Mann also makes a colorable argument that his right of access to the courts was violated because the jail's "checkout" system for law books did not conform with the minimum standards prescribed by Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and Morrow v. Harwell, 768 F.2d 619 (5th Cir.1985). Under Bounds, the government is obliged to provide prisoners wishing to make a constitutional claim in a civil rights complaint or habeas corpus petition "with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct. at 1498. In Morrow, we concluded that pretrial detainees, some of whom had been held for about the same length of time that Mann was held, had a right to more legal assistance than Mann was provided with. This strongly suggests that the Midland County Jail's policy on legal assistance for inmates was not what it should have been.