Petition for Writ of Certiorari — Brandon S. LaVergne, Petitioner v. Michael Vaughn, et al.

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227), ET AL.

CIVIL ACTION

VERSUS

MICHAEL VAUGHN, ET AL.

NO. 16-400-JWD-RLB

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This matter comes before the Court the Motion for Summary Judgment of the remaining

Defendants in this case, Bruce Dodd and Michael Vaughn (R. Doc. 78). This Motion is opposed.

See R. Docs. 101 and 102.

Pro se plaintiff1, Brandon Lavergne, an inmate incarcerated at the Louisiana State

Penitentiary (“LSP”), Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against

Michael Vaughn, Seth Smith, Darrell Vannoy, Leslie Dupont, Joe Jones, William Richardson,

Megan Shipley, George Heard, Cindy Vannoy, Lindsey Metz, Delvin Turner and Bruce Dodd.

Pursuant to prior Rulings in this case, all of the plaintiffs’ claims have been dismissed except the

claim that defendants Michael Vaughn and Bruce Dodd violated their constitutional rights by

imposing a mail block in February of 2016. The plaintiffs’ pertinent allegations as to the

remaining claim are as follows:

In October of 2015, the plaintiff was notified by the visitation officer that his daughter,

Bethany, was going to be removed from his visitor list unless he sent her a visitation form after

she turned 15. Since, due to a no contact order, the plaintiff could not send anything to the

1 James Lavergne, father of plaintiff Brandon Lavergne, was added as a plaintiff subsequent to the filing of the

initial Complaint. See R. Docs. 16 and 19. As used herein, “plaintiff’ refers to plaintiff Brandon Lavergne,

“plaintiffs” refers to both Brandon and James Lavergne.

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mother of his daughter (his former wife Lainey Martinez), he filed a grievance (LSP-2015-3283)

which was denied.

In December of 2015, the plaintiff learned that his daughter had not been living with his

former wife since 2014. Instead, she had been residing in a group home in Mississippi. On

February 3, 2016, the plaintiff wrote a letter to the staff of the group home asking for permission

to contact his daughter. The plaintiffs ex-wife contacted the prison regarding the letter on or

about February 8, 2016. On or about February 12, 2016, in alleged retaliation for the plaintiff s

filing of a prior suit, defendant Michael Vaughn, with the approval of defendant Bruce Dodd,

placed the plaintiff on a “total mail block,” which prohibited the plaintiff from sending or

receiving any mail, including religious or legal mail. The block also prohibited the plaintiff from

receiving J-PAY e-mails.

On February 16, 2016, defendant Vaughn issued a disciplinary report wherein he claimed

that the plaintiff had been verbally advised in 2012 that he was not to have any contact with the

Martinez family. The plaintiff asserts that he was not informed to not have any contact with the

Martinez family, rather the plaintiff was told not to contact Lainey Martinez.

On February 17, 2016, the plaintiff wrote a second letter to the staff of the group home

requesting written permission to contact his daughter. On the same date, defendant Vaughn

issued a second disciplinary report.

The plaintiff was brought before a disciplinary board on February 19, 2016. The plaintiff

requested that a copy of his February 3, 2016 letter to the group home be produced, and the

board agreed. The report was sent back to defendant Vaughn in order for a copy of the letter to

be produced.

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On February 20, 2016, the plaintiff was brought before a disciplinary board regarding the

disciplinary report issued on February 17, 2016. The plaintiff informed the board that he had not

received a copy of the report, and the board deferred the hearing. On February 22, 2016, the

plaintiff was brought before a new disciplinary board who found no reason for the February 3,

2016 letter to be produced and refused to allow the plaintiff to question defendant Vaughn. The

plaintiff was found guilty and sentenced to 12 weeks loss of store and transfer to the Camp J

management program.

On February 23, 2016, the plaintiff was brought before a disciplinary board for the

February 17, 2016 disciplinary report. The plaintiffs requests for a copy of the letter, a copy of

the disciplinary report, a copy of a no contact request from the group home, and to question

defendant Vaughn were refused. The plaintiff was found guilty and was again sentenced to the

Camp J management program.

The plaintiff appealed the disciplinary convictions, and his appeals were rejected by

based upon false information. The plaintiff then filed a grievance on February 25, 2016

concerning the mail block. On April 25, 2016, a First Step response was issued denying the

plaintiffs request for relief. Plaintiffs request for relief was also denied at the Second Step.

As a result of the mail block, the prison rejected three certified packages from the

plaintiffs family that consisted of legal documents needed for this suit, and patent information.

On February 25, 2016, a certified package of family photos, sent by plaintiff James Lavergne,

was signed for by Delvin Turner but was never delivered to the plaintiff or returned to his family.

The plaintiff also had 30 letters that he attempted to send out disappear, and 40 letters returned to

him unsent.

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Defendants Vaughn and Dodd now move for summary judgment relying upon the

pleadings, a Statement of Undisputed Facts, and the following exhibits: Exhibit 1 - LSP

Investigation Case # AIS-12-I-0807; Exhibit 2 - LSP Investigation Case # AIS-13-G-0587;

Exhibit 3 - LSP Investigation Case # AIS-13-G-0603; Exhibit 4 - LSP Investigation Case # AIS14-1-0810; Exhibit 5 - LSP Investigation Case # AIS-14-L-1077; Exhibit 6 - LSP Investigation

Case # AIS-14-L-1094; Exhibit 7 - LSP Investigation Case # AIS-15-A-0018; Exhibit 8 - LSP

Investigation Case # AIS-16-B-0165; Exhibit 9 - LSP Investigation Case # AIS-16-B-0207;

Exhibit 10 - LSP Investigation Case # AIS-16-D-0549; Exhibit 11 - Letter dated 7-3-2013 by

Brandon Lavergne; Exhibit 12 - Mail Block Authorization dated 9/23/2014; Exhibit 13 - LSP

Directive No. 16.002 - Offender Mail, Packages, & Publications; Exhibit 14 - Louisiana Dept, of

Public Safety and Corrections Department Regulation No. C-02-009; Exhibit 15 - Letter from

Brandon Lavergne to Ashley Say; Exhibit 16 - Inmate Brandon Lavergne J-Pay Message Index

From January 2016 Through November 2018; Exhibit 17 - Inmate Brandon Lavergne Securus

Telephone Call Index From January 2016 Through November 2018; Exhibit 18 - Email From

LSP Col. Stewart Hawkins to Lt. Cindy Vannoy on July 27, 2017; Exhibit 19 - Inmate Brandon

Lavergne LSP Visitation Records From January 2016 Through November 2018; and Exhibit 20 Affidavit of LSP Col. Michael Vaughn.

The plaintiffs oppose the Motion relying upon the pleadings, Statements of Undisputed

Facts, and the following exhibits: Exhibit 1 - mail blocked before February 16, 2016; Exhibit 2

- disciplinary report history; Exhibit 3 - Defendants interrogatory answers; Exhibit 4 - religious

mail blocked; Exhibit 5 - legal mail blocked; Exhibit 6 - educational mail blocked; Exhibit 7 February 8, 2016 Sunbelt mail block; Exhibit 8 - returned legal book; Exhibit 9 - Sunbelt home

page; Exhibit 10 - February 3 letter to Sunbelt; Exhibit 11 - February 17 letter to Sunbelt;

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Exhibit 12 - legal mail to Lainey September 14; Exhibit 13 - Letter to Braden and report

December 2014; Exhibit 14 - ARP LSP 2016-0711 and report; Exhibit 15 - ARP report; Exhibit

16- mail block orders; Exhibit 17 - disciplinary report and investigative report; Exhibit 18 prison rules 16.002; Exhibit 19 - dept, rule C-02-009; Exhibit 20 - disciplinary rule book;

Exhibit 21 - old visiting list; Exhibit 22 - Bethany’s removal from visiting list; Exhibit 23 Ashley Says letter and report; Exhibit 24 - ARP LSP 2015-1063; Exhibit 25 - interrogatories to

Michael Vaughn; Exhibit 26 - emails between Vaughn and Lainey; Exhibit 27 - Returning

Hearts 2015; Exhibit 28 - Returning Hearts 2018; Exhibit 29 - seized James Lavergne mail;

Exhibit 30 - stolen mail receipts; Exhibit 31-2012 Kennedy report; Exhibit 33 - movement

sheet; Exhibit 34 - employee roster; Exhibit 35 - emailing lifting mail block; Exhibit 36 - list of

missing mail; Exhibit 37 - new visiting list; and Exhibit 38 - photos from James Lavergne.

Pursuant to well-established legal principles, summary judgment is appropriate where

there is no genuine disputed issue as to any material fact, and the moving party is entitled to

judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v.

Catrett, All U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986). A party

moving for summary judgment must inform the Court of the basis for the motion and identify

those portions of the pleadings, depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, that show that there is no such genuine issue of material fact.

Celotex Corp. v. Catrett, supra, All U.S. at 323. If the moving party carries its burden of proof

under Rule 56, the opposing party must direct the Court’s attention to specific evidence in the

record that demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled

to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, All U.S. at 248. However,

whereas summary judgment is appropriate when there is no genuine disputed issue as to any

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material fact, and the moving party is able to show that he is entitled to judgment as a matter of

law, Fed. R. Civ. P. 56, the moving party always bears the initial burden of showing the absence

of a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323 (1986);

Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986). This is done by informing the Court of

•the basis for the motion and identifying those portions of the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits, if any, that show that there is no

genuine issue of material fact. Celotex Corp. v. Catrett, supra, All U.S. at 323. The nonmoving

party is not required to respond to the motion until the movant has made the required showing in

support thereof. Id. It is only after the movant has carried his burden of proof that the burden

shifts to the non-movant to show that the entry of summary judgment is not appropriate. See

Allen v. Rapides Parish School Bd., 20A F.3d 619, 621 (5th Cir. 2000). In resolving a motion for

summary judgment, the Court must review the facts and inferences in the light most favorable to

the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the

evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d

1257, 1263 (5th Cir. 1991).

In response to Plaintiffs allegations, the defendants assert that they are entitled to

qualified immunity in connection with the plaintiffs’ claims. Specifically, the defendants

contend that the plaintiffs’ allegations are insufficient to establish that they violated the

plaintiffs’ constitutional rights.

The qualified immunity defense is a familiar one and, employing a two-step process,

operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 F.

App’x. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first step

in the analysis is to consider whether, taking the facts as alleged in the light most favorable to the

\

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plaintiff, the defendant’s conduct violated the plaintiffs constitutional rights. Id. at 201.

Second, the district court looks to whether the rights allegedly violated were clearly established.

Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as

a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a

constitutional right was clearly established is whether it would have been clear to a reasonable

state official that his conduct was unlawful in the situation which he confronted. Id. at 202. The

assertion of the qualified immunity defense alters the summary judgment burden of proof.

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once a defendant pleads qualified

immunity, the burden shifts to the plaintiff, who “must rebut the defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct.” Gates v. Texas

Department of Protective and Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008), citing

Michalik v. Hermann, supra, 422 F.3d at 262.2

Undertaking the qualified immunity analysis with respect to the plaintiffs’ claims, the

Court concludes that the defendants’ Motion for Summary Judgment should be granted and that

the defendants are entitled to qualified immunity in connection with the claim remaining before

the Court.

In summary, the remaining claim before this Court is in connection with the plaintiffs

complaint that a mail block was imposed in February of 2016 that barred him from sending or

receiving mail. It appears that, on February 16, 2016, a mail block restricting all outgoing and

ingoing mail for the plaintiff, with the exception of legal mail, was prepared by defendant

2 The United States Supreme Court has held that rigid chronological adherence to the Saucier two-step methodology

is not mandatory. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Although the Saucier methodology will be

“often beneficial”, the Court in Pearson leaves to the lower courts discretion as to the order in which they may wish

to address the two prongs of the qualified immunity analysis. Id.

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Vaughn, with the approval of defendant Dodd. The block was instituted due to the plaintiffs

attempt to circumvent a non-contact order by mailing a letter to his biological3 minor daughter

using false information for the sender’s address on the envelope. See R. Docs. 78-11, p. 24; 78ll,p. 42; and 78-23.

It is well-recognized that inmates have a First Amendment right both to send and receive

mail. See Thornburgh v. Abbott, 490 U.S. 401 (1989). Notwithstanding, this right is not

absolute, and it is clear that it does not preclude prison officials from examining mail to ensure

that it does not contain contraband or address matters, such as escape plans or other illegal

activity, that may impact upon the security of the prison environment. See Brewer v. Wilkinson,

3 F.3d 816, 821 (5th Cir. 1993).

Outgoing mail, to some degree, is distinguished from incoming mail in this context

because courts have recognized a heightened security risk with regard to incoming mail because

of the possibility of the introduction of contraband into the prison. See Thornburgh v. Abbott,

supra, 490 U.S. at 413. Thus, the Fifth Circuit has concluded that outgoing mail should not be

arbitrarily censored. Brewer v. Wilkinson, supra, 3 F.3d at 826. However, restrictions on

outgoing mail that are justified by reasonable and rational penological objectives are not

prohibited. See Turner v. Safely, 482 U.S. 78 (1987) (setting forth a four-part fact-based analysis

for the evaluation of prison regulations and restrictions that impose constitutional limitations

upon prisoners). See also Brewer v. Wilkinson, supra, 3 F.3d at 824 (suggesting that “Turner’s

‘legitimate penological interest’ test would also be applied to outgoing mail”). See also Samford

v. Dretke, 562 F.3d 674 (5th Cir. 2009) (same). Thus, prison regulations that prohibit inmates

3 With regards to Bethany Martinez, it appears that the plaintiffs parental rights were terminated in January of 2010,

and Bethany was adopted by Jed Martinez who is the husband of Bethany’s mother, Lainey Martinez.

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from sending correspondence to the victims of their offenses or to the families of their victims

have been found to be supportable. See, e.g., LSP Directive No. 16.002 (R. Doc. 78-16, p. 4).

In addition, restrictions placed on an inmate’s ability to send mail to persons who have

indicated a desire not to receive correspondence are routinely upheld. See, e.g., Jones v.

Diamond, 594 F.2d 997, 1014 (5th Cir. 1979) (validating the use of a negative mail list and

stating that “jail officials may employ a ‘negative mail list’ to eliminate any prisoner

correspondence with those on the outside who affirmatively indicate that they do not wish to

receive correspondence from a particular prisoner”). See also Samford v. Dretke, 562 F.3d 674

(5th Cir. 2009) and cases cited therein (upholding a mail block in the form of a “negative mail

list,” even without a specific request for non-contact, where the restriction placed upon the

inmate’s ability to send mail was targeted at only specifically named individuals and where a

sufficient factual basis was clear on the record because the proscribed individuals were young

family members who had witnessed his violent criminal conduct). The question in this case is

whether the broader restriction that was placed upon Plaintiffs ingoing and outgoing mail in this

case may be seen to pass constitutional muster.

Although the issue is a close one, the Court ultimately concludes that the plaintiffs have

failed to clearly establish the violation of their constitutional rights in the instant case. The

supporting documentation and affidavit of defendant Vaughn reflect that the plaintiff has

followed a long and somewhat conflictual path in connection with his ingoing and outgoing

correspondence and that measures were undertaken by prison personnel prior to the imposition

of the subject mail block to curb the plaintiffs attempts to address correspondence to persons

who had indicated that they did not want to receive correspondence from him, and from

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receiving mail including photographs of minor children whose parents had requested the plaintiff

not have such photographs in his possession.

In September of 2012, in accordance with an explicit request from Ms. Patti Turner (the

mother of the plaintiffs son Braden Turner), the plaintiff was instructed to refrain from

communicating with Ms. Turner or sending correspondence to Ms. Turner’s address. Thereafter,

on July 3, 2013, pursuant to an explicit request from the plaintiffs ex-wife, Lainey Martinez, the

plaintiff was instructed to refrain from sending mail to Ms. Martinez, to Ms. Martinez’ minor

daughter Bethany, or to any other members of Ms. Martinez’ extended family. In connection

with this second request, a 60-day mail watch was implemented, pursuant to which the plaintiff s

mail was subjected to greater scrutiny than normal but not to any direct limitation.

Notwithstanding, it appears that on that same date, the plaintiff attempted to circumvent the noncontact directive and addressed a letter to Ms. Martinez, which letter was intercepted by prison

personnel on July 9, 2013 and which letter resulted in a disciplinary charge issued against the

plaintiff for “Aggravated Disobedience.”

Thereafter, on September 23, 2014, prison officials learned of another attempt by the

plaintiff to circumvent his non-contact directives relative to Ms. Martinez. Specifically, prison

officials were advised that Ms. Martinez’ mother had received an item of correspondence

addressed to Ms. Martinez at the mother’s address. Further investigation revealed that this

correspondence had actually been sent circuitously, first from the plaintiff to his family members

with instructions to forward it to Ms. Martinez, and second from the plaintiffs family members

to Ms. Martinez in an attempt to circumvent the prior instruction relative to non-contact. This

item of correspondence resulted in a second disciplinary charge for “Aggravated Disobedience”

and also in the imposition of a 180-day mail watch on the plaintiffs mail.

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On or about December 16, 2014, former Warden Burl Cain was apparently personally

contacted by Joyce Shunick, the mother of the plaintiffs murder victim, who advised Cain of

correspondence that she had either received or been advised of that was addressed by the

plaintiff to a close friend of her deceased daughter. Based upon this communication from Ms.

Shunick and the likely distress caused by the referenced correspondence, and in light of the

above-related previous events, Cain contacted Deputy Warden Leslie Dupont with instructions

that a mail block be placed upon the plaintiffs mail. Accordingly, pursuant to Cain’s

instructions, defendant Vaughn prepared the mail block Memorandum and, upon approval by

Dupont, forwarded it to the LSP mail room.

During that same month of December 2014, the plaintiff undertook additional conduct

that was in violation of prior explicit instructions relative to non-contact. Specifically, on

December 22, 2014, prison personnel intercepted an item of correspondence addressed by the

plaintiff to the address of Ms. Patti Turner, which correspondence included a Christmas card

intended for the plaintiffs minor son Braden Turner as well as copies of photographs taken of

family members. As indicated above, the plaintiff had been instructed not to send

correspondence to Ms. Turner or to her address. As a result of the referenced correspondence,

the petitioner was issued a third disciplinary charge for “Aggravated Disobedience.”

On January 6, 2015, prison personnel intercepted an item of correspondence from Ms.

Tiffany Gilcrease to the plaintiff, containing photographs of a minor girl and boy. Defendant

Vaughn contacted Ms. Turner who advised that she did not want the plaintiff to contact her or

her family, or to receive photographs of her son Braden Turner. With the authorization of

Deputy Warden Dupont, defendant Vaughn contacted Ms. Gilcrease and advised her to cease

sending photographs of Braden Turner.

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The next month, on February 8, 2016, Ms. Lainey Martinez contacted LSP Investigative

Services regarding correspondence sent by the plaintiff to her minor daughter Bethany Martinez

at a private Christian school in Mississippi. False information was used on the sender’s address.

On the same date, defendant Vaughn drafted a mail watch memorandum blocking mail to the

Sunbelt Christian Youth Ranch in Mississippi.

On February 16, 2016, the plaintiff was instructed by defendant Vaughn to refrain from

all forms of communication with any member of the Martinez, Turner and Vasseur families and

to refrain from writing to the school in Mississippi, and a disciplinary charge was issued. On the

same date, defendant Vaughn, drafted a mail block memorandum, signed by defendant Dodd,

that restricted all outgoing mail for the plaintiff with the exception of legal mail.

On February 17, 2016, correspondence from the plaintiff to the Sunbelt Christian School

was intercepted. Therein, the plaintiff references that he was given verbal instruction to cease all

contact with the school. The plaintiff was issued a disciplinary charged for Aggravated

Disobedience.

Weeks later, on March 1, 2016, correspondence from plaintiff James Lavergne was

intercepted. The correspondence had been sent via certified mail with an address label with the

logo and name for the American Center for Law & Justice. The correspondence contained

photographs of Braden Turner and Bethany Martinez, the minor children of Ms. Pattie Turner

and Ms. Lainey Martinez. The use of the address label and certified mail service was believed

by defendant Vaughn to be part of an effort to disguise the mail as legal mail to circumvent the

plaintiffs mail restrictions. On March 16, 2016, defendant Vaughn, with the authorization of

defendant Dodd, drafted a mail block memorandum restricting all incoming and outgoing mail

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for the plaintiff with the exception of legal mail. On July 27, 2017, the restrictions were

removed.

In Turner v. Safely, supra, the United States Supreme Court concluded that four factors

are relevant in deciding whether a prison regulation or restriction that impinges upon an inmate’s

constitutional rights may withstand a constitutional challenge: (1) whether the regulation or

restriction has a “valid, rational connection” to a legitimate governmental interest; (2) whether

alternative means are open to the inmate to exercise the asserted right; (3) the impact an

accommodation of the right would have on guards and inmates and prison resources; and (4)

whether there are ready alternatives that could fully accommodate the prisoner’s rights at de

minimis cost to valid penological interests. See id. at 89-91. See also Samford v. Dretke, supra,

562 at 679. Deference should be afforded to prison administrators’ decisions, especially when

those decisions deal with issues of prison safety and security. Turner v. Safety, supra, 482 U.S.

at 89. See also Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 863 (5th Cir. 2004)

(“the Court is equally cognizant of the inherent demands of institutional correction, the deference

owed to prison administrators, and the subjugation of individual liberty that lawful incarceration

necessarily entails”). Rationality is the “controlling factor” in conducting the Turner inquiry

“and a court need not weigh each factor equally.” Mayfield v. Texas Dep’t of Criminal Justice,

529 F.3d 599, 607 (5th Cir. 2008).

In addressing the first prong of the Turner analysis, the defendants invoke the legitimate

governmental interest in protecting the general public and specific individuals from harassment

and unwanted contact by inmates. This governmental interest has often been invoked by prison

administrators in seeking to justify the imposition of restrictions upon the rights of inmates to

send correspondence. See, e.g., Lavergne v. Martinez, 2013 WL 3803975 (M.D. La. July 19

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2013) and cases cited therein (denying injunctive relief to plaintiff who sought to be allowed to

correspond with his minor daughter notwithstanding the mother’s contrary wish). Thus, the

defendants make reference to the lesser attempts to limit the plaintiff s communication with

certain individuals at the individuals’ requests, the plaintiffs several attempts to circumvent the

limitations sought to be imposed, and to resulting disciplinary charges levied against the plaintiff

in such instances.

The Court accepts the defendants’ rationale in this regard and agrees that there is a

rational relationship between the legitimate governmental interest invoked and the actions taken

by the defendants to meet the valid penological objective. While the actions taken by the

defendants in response may have been over-broad in scope, the Court further finds, as discussed

hereafter, that other factors tempered the effect of the defendants’ actions and effectively limited

any deleterious effect thereof.

The second aspect of the Turner analysis asks whether alternative means were available

to plaintiff to accommodate his First Amendment rights. In addressing this inquiry, the Court

finds that alternative means of communication were in fact available to the plaintiff.

Specifically, notwithstanding the referenced mail block, the plaintiff was still allowed to send

privileged legal mail. Further, his visitation, telephone, and email rights (limited though they

may have been in light of his classification level) were not impacted by the mail limitations

placed upon the plaintiff. The records reflect that during the period the mail block was in effect,

the plaintiff had approximately 23 visitations, sent 655 J-pay messages, and made 629 telephone

calls. As such, the plaintiff was not entirely prevented from communicating with persons outside

of the prison, including plaintiff James Lavergne. In addition, it has been recognized that an

acceptable alternative in the event of restrictions being placed upon an inmate’s ability to send

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mail to certain individuals is the ability to indirectly communicate through the oral relay and

exchange of information by and through persons who are not so restricted. See Samford v.

Dretke, supra (where the Court noted that the mother of plaintiff s children could “relay” oral

messages from the children when she visited and that “[alternatives ... need not be ideal,

however; they need only be available,” citing Overton v. Bazzetta, 539 U.S. 126, 135 (2003)).

Finally, the Court notes that the restriction placed upon the plaintiffs mail was not

apparently perpetual in duration. Although the mail block Memorandum did not designate a

specific term or duration, the restriction was imposed, due to the plaintiff s failure to comply

with previous directives not to contact specified individuals. Thus, as an incentive to encourage

the plaintiff to improve his behavior, the mail block was likely not intended to be permanent but

was subject to being modified upon his exhibiting a willingness to comply with prison rules. Cf,

Hill v. Terrell, 846 F. Supp. 2d 488 (W.D. N.C. 2012) (upholding the imposition of periods of

censorship imposed upon plaintiffs mail after he repeatedly sent mail to people outside the

prison who did not want such communication and noting that the plaintiff was advised, in

response to his complaints, that he could request the lifting of the restriction by showing

improvement in his behavior “for a reasonable period of time”). The mail block ended on Ju ly

27, 2017. Thus, the apparent limited effective duration of the restriction on the plaintiffs mail

may also be seen as leaving alternatives open to him to exercise his First Amendment rights upon

the cessation thereof.

With regard to the third Turner inquiry, i.e., the potential impact upon the institution,

guards, inmates and general public if the plaintiffs rights were fully accommodated, the Court

finds that this inquiry favors the defendants as well, albeit only minimally. Specifically, the

record reflects that time, effort and prison resources were necessarily expended in investigating

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and scrutinizing the plaintiffs mail after he repeatedly engaged in conduct that was intended to

circumvent verbal instructions and prison directives. Whereas the Louisiana State Penitentiary

maintains a mail room that has as its responsibility the review and inspection of inmate mail, it

seems likely that allowing the plaintiff the unrestricted right to send mail without the imposed

limitations would have imposed a burden on prison resources and that limiting the plaintiff s

rights in this regard ameliorated that burden to some degree.

Finally, Turner inquires whether there are ready alternatives that would have

accommodated the right asserted by the plaintiff at a de minimis cost to valid penological

objectives. In this regard, the existence of obvious easy alternatives may be evidence that the

restrictions imposed upon the inmate are not reasonable but are instead an “exaggerated

response” to prison concerns. Id., 482 at at 90. Turner, however, does not require that a “least

restrictive alternative” be discovered and implemented, nor do prison officials have to “set up

and then shoot down every conceivable alternative method of accommodating the claimant’s

constitutional complaint.” Id. Rather, the burden is generally seen to be upon the plaintiff to

identify a reasonable ready alternative, and he has not done so in the instant case. See Victoria v.

Larpenter, 369 F.3d 475, 484 (5th Cir. 2004) (stating that under Turner’s fourth factor, “an

inmate must present evidence of a ready alternative that fully accommodates a prisoner’s rights

at de minimis cost to valid penological interests”). To the contrary, it appears that prison

officials in the instant case had, during the years leading up to the imposition of the subject mail

block verbally instructed the plaintiff to refrain from sending mail to persons who requested no

contact, imposed mail watches and lesser mail blocks upon the plaintiff of varying durations, and

charged him with disciplinary violations upon his non-compliance with their directives.

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Based on the foregoing, it does not appear that the defendants acted entirely unreasonably in this

case in imposing a mail block that appears to have been of limited duration, that preserved the

plaintiffs ability to communicate by other means, and allowed him to send and receive

privileged legal mail.

Notwithstanding, although the Court expresses reservations about the appropriateness of

the imposition of a blanket restriction of extended duration upon the sending and receiving of

general mail and although the Court views with great seriousness the exercise of inmates’ First

Amendment rights, the Court’s research has not uncovered - and the plaintiffs have not cited any controlling legal authority that categorically forbids the mail block imposed in the instant

case. Cf, Hill v. Terrell, 846 F. Supp. 2d 488 (W.D. N.C. 2012) (upholding defendants’ action

in imposing periods of censorship on the plaintiffs outgoing mail after he sent correspondence to

persons who requested non-contact); Akers v. Watts, 740 F. Supp. 2d 83 (D.D.C. 2010)

(addressing Bureau of Prisons regulations that authorize the imposition of “restricted general

correspondence status” upon federal inmates under certain circumstances). See also Procunier v.

Martinez, 416 U.S. 396, 412 n. 12 (1974) (“We need not and do not address in this case the

validity of a temporary prohibition of an inmate’s personal correspondence as a disciplinary

sanction for violation of prison rules”); Gilliam v. Quinlan, 608 F. Supp. 823, 837 (S.D. N.Y.

1985) (expressing reservations about the imposition of a punitive mail prohibition but finding

that the defendants were entitled to qualified immunity because they were “operating] in an area

in which the law was not charted clearly”). Accordingly, the Court believes that the defendants

are entitled to qualified immunity in this case and that summary judgment should be granted in

their favor in connection with this issue.

Case 3:16-cv-00400-JWD-RLB

Document 108 03/21/19 Page 19 of 19

Turning to the plaintiffs claim that his constitutional right to procedural due process was

violated in connection with the imposition of the subject “mail block,” because there was no

hearing prior to the imposition thereof, the Court concludes that this claim is without merit.

Specifically, the plaintiff has not disputed that he was provided with notice that the restriction

was being imposed and of the reason for its imposition. He thereafter had the ability to challenge

the actions of prison officials through the filing of an administrative grievance. The essential

hallmarks of procedural due process are notice of the imposition of a sanction or restriction and

an opportunity to be heard, and these appear to have been provided. Further, the operative prison

regulation does not require a hearing prior to the imposition of mail restrictions. Finally, to the

extent that the plaintiff complains that the prison’s rules and regulations were not followed in

connection with the mail block, this is clearly not a claim of constitutional dimension. See, e.g.,

Samford v. Dretke, supra, 562 F.3d at 681, and cases cited therein. Accordingly, this aspect of

the plaintiffs claim should also be denied.

RECOMMENDATION

It is recommended that the Motion for Summary Judgment of defendants Michael

Vaughn and Bruce Dodd (R. Doc. 78), be granted, dismissing the plaintiffs’ claims asserted

against them, with prejudice. It is further recommended that the plaintiffs “Counter Motion for

Summary Judgment” (R. Doc. 102) be denied, and the pending Motions in Limine (R. Docs. 75,

76) and Motion for Summons (R. Doc. 104) be denied as moot, and that this action be dismissed.

Signed in Baton Rouge, Louisiana, on March 21, 2019.

RICHAKBT. BOUJ&JEflfcS, JrT

UNITED STATES MAGISTRATE JUDGE

Case 3:16-cv-00400-JWD-RLB

Document 112

04/03/19 Page 1 of 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227), ET AL.

CIVIL ACTION

VERSUS

NO. 16-400-JWD-RLB

MICHAEL VAUGHN, ET AL.

OPINION

After independently reviewing the entire record in this case and for the reasons set

forth in the Magistrate Judge's Report dated March 21, 2019, to which an opposition was filed

(Doc. Ill);

IT IS ORDERED that the Motion for Summary Judgment of defendants Michael

Vaughn and Bruce Dodd (R. Doc. 78), is granted, dismissing the plaintiffs’ claims asserted

against them, with prejudice.

IT IS FURHTER ORDERED that the plaintiffs “Counter Motion for Summary

Judgment” (R. Doc. 102) is denied, and the pending Motions in Limine (R. Docs. 75, 76) and

Motion for Summons (R. Doc. 104) are denied as moot, and that this action shall be

dismissed.

Judgment shall be entered accordingly.

Signed in Baton Rouge, Louisiana, on April 3. 2019.

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Case 3:16-cv-00400-JWD-RLB

Document 113

04/03/19 Page 1 of 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227), ET AL.

CIVIL ACTION

VERSUS

NO. 16-400-JWD-RLB

MICHAEL VAUGHN, ET AL.

JUDGMENT

For the written reasons assigned,

IT IS ORDERED, ADJUDGED and DECREED that the Motion for Summary

Judgment of defendants Michael Vaughn and Bruce Dodd (R. Doc. 78), is granted, dismissing

the plaintiffs’ claims asserted against them, with prejudice.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that the plaintiffs

“Counter Motion for Summary Judgment” (R. Doc. 102) is denied, and the pending Motions

in Limine (R. Docs. 75, 76) and Motion for Summons (R. Doc. 104) are denied as moot, and

this action is dismissed.

Signed in Baton Rouge, Louisiana, on April 3. 2019.

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Case: 19-30272

Document: 00515342069

Page: 1

Date Filed: 03/12/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-30272

Summary Calendar

FILED

March 12, 2020

Lyle W. Cayce

Clerk

D.C. Docket No. 3:16-CV-400

BRANDON S. LAVERGNE,

Plaintiff - Appellant

v.

MICHAEL VAUGHN, Investigator Louisiana State Penitentiary; BRUCE

DODD,

Defendants - Appellees

Appeal from the United States District Court for the

Middle District of Louisiana

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on file.

It is ordered and adjudged that the judgment of the District Court is

affirmed.

Case: 19-30272

Document: 00515342042

Page: 1

Date Filed: 03/12/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-30272

Summary Calendar

FILED

March 12, 2020

Lyle W. Cayce

Clerk

BRANDON S. LAVERGNE

Plaintiff-Appellant

v.

MICHAEL VAUGHN, Investigator Louisiana State Penitentiary; BRUCE

DODD,

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:16-CV-400

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Brandon S. LaVergne, Louisiana prisoner # 424229, appeals from the

rejection of his 42 U.S.C. § 1983 claims against prison officials relating to a

“mail block.” Applying de novo review to the district court’s orders granting

motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and a

motion for summary judgment pursuant to Federal Rule of Civil Procedure 56,

* Pursuant to 5TH ClR. 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

ClR. R. 47.5.4.

Case: 19-30272

Document: 00515342042

Page: 2

Date Filed: 03/12/2020

No. 19-30272

we affirm. See Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019); McCreary v.

Richardson, 738 F.3d 651, 654 (5th Cir. 2013).

First, LaVergne has not shown that the “mail block” violated clearly

established law.

See McCreary, 738 F.3d at 655-56.

Accordingly, we are

unpersuaded that the district court erred in granting summary judgment

based on qualified immunity with respect to his constitutional challenges to

the mail block. Second, contrary to LaVergne’s assertion, the district court did

address and dismiss his claim based on stolen mail and pictures.

Third,

LaVergne fails to demonstrate error in the district court’s dismissal of his

retaliation claim. See Brown v. Taylor, 911 F.3d 235, 245 (5th Cir. 2018).

AFFIRMED.

2

Case: 19-30272

Document: 00515445937

Page: 1

Date Filed: 06/09/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30272

BRANDON S. LAVERGNE,

Plaintiff - Appellant

v.

MICHAEL VAUGHN, Investigator Louisiana State Penitentiary; BRUCE

DODD,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

I

ON PETITION FOR REHEARING

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

ENTEREMOR TILE COURT:

IMETED STATES CIRCUIT JUDGE