USCA1 Opinion

March 23, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1924
ROBERT P. LENA,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________
Robert P. Lena on brief pro se.
______________
Nancy Ankers White, Special Assistant

Attorney

General,

____________________
Charles M. Wyzanski, Senior
Litigation
_____________________
Correction, on brief for appellees.

Counsel,

Department

____________________
____________________

Per Curiam.
__________

Plaintiff Robert

Lena, an

inmate at

the

Norfolk Correctional Institution in Massachusetts, challenges

the constitutionality of prison

rules barring the receipt of

publications, ordered

through the

paid for

See 103 NOR

___

in advance.

be pre-paid.
returned to
claims:

Any

due

(1) that this

process

procedures,

not been

403.25 ("All orders must

order arriving with a balance due

the company.").

First Amendment;

mail, that have

Below, plaintiff

policy abridged his

and (2) that prison

rights
see 103 CMR

by

failing

will be

advanced two

rights under the

officials violated his

to

follow

applicable

481.16, prior to returning a "bill

___
later"

book he

sustained

had ordered.

argumentation on

these claims,

As

plaintiff has

appeal in

we affirm largely

support of

for the reasons

offered no
either of
recited by

the Magistrate-Judge in her decision dated July 16, 1993.

We

note only the following.

With respect to plaintiff's First Amendment claim, it is
clear

that

"reasonably

the restriction
related

to

Turner v. Safley, 482

______
______
Abbott,
______

490 U.S.

401,

413 (1989)

test).

The superintendent

payment

requirement

inmates

from committing

contention,

their

later" materials

U.S. 78, 89 (1987); see

___

correspondence

beyond

"bill

legitimate penological

incoming

funds

on

are

was

the legitimacy

Thornburgh v.
__________

to

be assessed

under

here

explained

that the

in

order

fraud on businesses

means.

interests."

(prison restrictions

implemented

Contrary

of these

is

on

Turner
______
pre-

to prevent

and obligating

to

plaintiff's

justifications "cannot

seriously be questioned."
(2d

Cir. 1987).

Turner, see
______ ___

Applying the

482 U.S. at

upheld restrictions
Amendment

grounds.

requiring

that

entities

v.

four criteria

enumerated in

89-91, other courts

similar to
See,
___

that involved here

on First

Rodriguez,
_________

mail

addressed

to commercial

form for

inspection, to

in unsealed

all items ordered have

Magnusson, 698 F. Supp.

_________

have uniformly

e.g.,
____

all outgoing

be submitted

ensure that

Rodriguez v. James, 823 F.2d 8, 12

_________
_____

that all

outgoing

envelopes

embossed

with prison

(rule

been prepaid); Theriault

_________

369, 371-72 (D.

requiring

supra
_____

correspondence
legend

to

Me. 1988) (rule

be

placed

in

deter fraud

on

businesses); Gardner v. Dalimonte, 1991 WL 71034 (Magis. W.D.

_______
_________
Mich. 1991) (ban on book-club memberships); see also Eckford________ ________
El
__

v.

Toombs, 760
______

F. Supp.

("Prison officials
entering

into

1267,

are justified in

certain

kinds

of

1271 (W.D.

Mich. 1991)

forbidding inmates from

credit

arrangements.")

(dicta).
With respect

to plaintiff's due process

claim, we need

not decide whether the pertinent state regulations suffice to

establish a property or liberty interest.
clear that plaintiff

It is in any event

received all the process

that was due.

The fact that he was not provided with prompt, written notice
of

the book's

return, as

required by

the

regulations, is

-3-

without consequence.
and

was

able

to

superintendent.
(1974), the

pursue

an

In Procunier
_________

eventually so

appropriate
v.

an inmate be

... be given

that decision, and

to

the

416 U.S.

396

incoming mail that

notified of the

rejection ...,

a reasonable opportunity

that complaints be

notified

appeal

Martinez,
________

Court upheld restrictions on

required "that
that [he]

Plaintiff was

to protest

referred to a

prison

official other than the person who originally disapproved the

correspondence."
was observed

Id. at 418-19.
___

here.

prison regulations

Each of

Contrary to
did not

these safeguards

plaintiff's contention, the

require a hearing

prior to

the

book's return.
Plaintiff's central
equal

protection

claim

argument on
that

"[T]heories not raised squarely

be

surfaced for

the

first

was

appeal consists
not

presented

of an
below.

in the district court cannot

time

on

appeal."

McCoy
_____

v.

Massachusetts Institute of Technology, 950 F.2d

______________________________________
Cir. 1991), cert. denied,
____________

112 S. Ct.

1939 (1992).

the claim of dubious merit in any event.

Affirmed.
_________

-4-

13, 22 (1st
We

find