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JACOB IND; JEFFREY PFLEGER, Plaintiffs-Appellants, v.
RICKWRIGHT; DAN FOSTER; LARRY REID; STEVE SHUH; LEE HENDRIX; COLORADO
DEPARTMENT OF CORRECTIONS, Defendants-Appellees.
No. 01-1338
UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
August 14, 2002, Filed
NOTICE:
RULES OF THE TENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiffs Jacob Ind and Jeffrey
Pfleger appeal the district court's grant of summary judgment in favor of
defendants on their civil rights lawsuit brought pursuant to 42 U.S.C. § 1983,
and several other federal statutes. Because plaintiffs have not shown the
existence of a genuine issue of material fact or that the district court
committed legal error regarding: (1) the
Eleventh Amendment dismissal of claims against defendants in their
official capacities; (2) the dismissal of claims against certain defendants for
lack of personal participation; (3) the constitutionality of Colorado
Department of Corrections (DOC) administrative regulation 300-26, on its face and
as applied, as a restriction on plaintiffs' First Amendment rights; and (4) the
failure to provide separate taped religious programming, we affirm those
portions of the district court's judgment. Because the district court failed to
address plaintiffs' arguments regarding: (1) the classification of their
religious group as a "Security Threat Group"; (2) the
constitutionality of DOC administrative regulation 800-1 as applied to members
of the Christian Identity Faith; and (3) the adequacy of the due process
protections surrounding the censorship process, we remand this case for
determination of those issues. Finally, because the district court used an incorrect analysis to evaluate
plaintiffs' claim to Passover-related food and a communion packet, we reverse
that portion of the judgment and remand for further proceedings.
Plaintiffs are members of the
"Christian Identity Faith" who are currently incarcerated at the
Colorado State Penitentiary. The Christian Identity Faith rests upon White
Supremacy principles, teaching that all other races and religions are inferior.
Plaintiffs brought this action against the DOC and its employees, alleging that
DOC policies and practices deprived them of the right to practice their
religion and discriminated against their religion.
In particular, plaintiffs
complained about DOC administrative regulation 300-26, which describes the
types of reading material an inmate may receive or possess consistent with the
DOC's goals of maintaining security, good order, and public safety, as well as
its goal of encouraging rehabilitation. See R. I, doc. 23, Ex. A. Pursuant to this regulation, the
DOC prohibits materials that an objective person could reasonably believe
"encourage or endorse: violence or disorder; . . . hatred or contempt of
other persons; [or] vengeance against other persons." Id. at 2. The
regulation specifically identifies as excludable "any publication
advocating hatred or contempt of other persons," and "any . . .
material produced or distributed by Security Threat Groups (STGs) or . . .
material advocating [*919] or depicting association or membership in a STG
which is contrary to the security interests of the facility." Id. Many of
plaintiffs' Christian Identity reading materials have been prohibited under
these standards.
Plaintiffs alleged that DOC
administrative regulation 300-26 was unconstitutionally overbroad and that it
had been applied in a discriminatory fashion. They also alleged that the
regulation, both on its face and as applied, violated due process based on
inadequate notice, no time limit for making the censorship decisions, and no
opportunity to appeal the decisions.
Plaintiffs also complained that
DOC administrative regulation 800-1 used an unconstitutional standard to
exclude them from the category of a "legitimate" faith group and that
their constitutional rights were violated by the prison's refusal to provide
them with a Passover meal, a communion packet, and leaven-free foods during the
Passover week. Finally, plaintiffs
alleged that they were constitutionally entitled to Christian Identity taped
religious programming.
The
magistrate judge to whom the case was assigned recommended that summary
judgment be granted in favor of defendants based, in part, on the district
court's decision in the related action of Rooks v. Zavares, Civil Action
No. 99-B-631 (D. Colo. Jan. 25, 2001).
See R. I, doc. 50, Ex. 2. The recommendation was based on the representations
by both plaintiffs and defendants that the claims in Rooks were essentially
identical to those raised in this lawsuit. The magistrate judge's order
recommended the following: (1) that plaintiffs' claims for monetary relief be
dismissed against defendants in their official capacities based on Eleventh
Amendment sovereign immunity; (2) that the First Amendment claims regarding
administrative regulation 300-26 brought against defendants Hendricks and Shuh
be dismissed for lack of personal participation; (3) that the claims relating
to Passover food brought against defendants Foster, Shuh, and Wright be
dismissed for lack of personal participation; (4) that the claims relating to
the failure to provide separate religious programming brought against
defendants Foster, Wright, Hendrix, and Shuh be dismissed for lack of personal
participation; (5) that summary judgment be granted in favor of the remaining
defendants on plaintiffs' claim that administrative regulation 300-26 is
unconstitutional on its face and as applied; (6) that summary judgment be
granted in favor of defendants on plaintiffs' claim of entitlement to Passover
food and a communion packet because plaintiffs had not shown that observing
Passover in this form was a tenet of their religion; and (7) that summary
judgment be granted in favor of defendants on the claim for separate religious
programming based on the absence of evidence that defendants have refused to
allow such programming. After de novo review, the district court adopted the
magistrate judge's recommendations.
We
review the grant or denial of summary judgment de novo, applying the same legal
standard used by the district court.
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). When applying this standard, "we
examine the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing the motion." McKnight, 149 F.3d at
1128 (quotation omitted).
[*920] We examine first the
constitutionality of DOC administrative regulation 300-26, using the standards
adopted by the Supreme Court in Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed.
2d 459, 109 S. Ct. 1874 (1989). There, the Court held that regulations
governing the receipt of reading materials by inmates must be analyzed under a
reasonableness standard, and that such regulations are valid if they are
reasonably related to a legitimate penological interest. Id. at 413. These determinations should be
made using the four-prong inquiry established in Turner v. Safley, 482 U.S. 78,
89-91, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Thornburgh, 490 U.S. at 413.
Under this standard, courts must consider (1) whether there is a rational
connection between the prison policy and a legitimate governmental interest;
(2) whether there are alternative means for inmates to exercise their
constitutional rights; (3) the effect that accommodating the exercise of the
disputed rights would have on guards, other inmates, and prison resources; and
(4) whether there are ready, easy-to-implement alternatives that would
accommodate the inmates' rights.
In examining the particular
prison regulation before it, the Thornburgh Court first held that the interest
in protecting prison security is legitimate "beyond question." 490
U.S. at 415. The Court then held that "where, as here, prison
administrators draw distinctions between publications solely on the basis
of their potential implications for
prison security, the regulations are neutral." Id. at 415-16 (quotation
omitted). The Court concluded that regulations allowing prison authorities
discretion to determine that particular reading material creates an intolerable
risk of disorder under the conditions of their particular institution are
rationally related to the legitimate interest of maintaining prison security. 490
U.S. at 416-17. Because this analysis applies with equal validity to DOC
administrative regulation 300-26, we conclude that the regulation is reasonably
related to legitimate penological objectives.
Regarding the second, third, and
fourth prongs of the Turner analysis, we agree with the district court that
plaintiffs have not raised triable issues of fact. The Supreme Court itself, in
Thornburgh, held that so long as prison regulations permit a broad range of
publications to be sent, received, and read, prison inmates have adequate
alternative means for exercising their religion. 490 U.S. at 418. We note that
plaintiffs have not alleged they have been denied the main texts of their
religion, including the King James Bible, Strong's Exhaustive Concordance, and
Young's Analytical Concordance. See R. I, doc.23, ex. C.
Further, to allow plaintiffs to
receive and possess materials that espouse hatred or contempt of others would
negatively impact other prisoners, guards who must prevent any resulting
animosity, and prison resources aimed at preventing violence. In light of the
extreme racial tensions and violence prevalent in prisons, such provocative
materials are likely to increase the stress on prisoners, guards, and resources alike. In addition,
plaintiffs have not shown that there are easy alternatives to prohibiting
material that expresses hatred or contempt of others. Although they argue that
the standard should be limited to materials that "advocate[] violence or
are so inflammatory as to reasonably be believed to incite violence,"
Aplts' Br. at 3H, the Supreme Court specifically stated in Thornburgh that
prison administrators are not required to limit their exclusions to materials
which are "likely" to lead to violence. 490 U.S. at 417.
Plaintiffs also have not shown
that the district court erred in holding that [*921] their reading materials
were properly excluded under the regulation. We have independently reviewed all
of the exhibits submitted with the pleadings and those submitted under seal.
Based on our review, we conclude that the prohibited materials could reasonably
be regarded as "publications advocating hatred or contempt of other
persons," or "encouraging or endorsing . . . violence or disorder."
R. I, doc. 23, Ex. A at 2.
Next, plaintiffs challenge the
district court's grant of summary judgment in favor of defendants on their claim
that they are entitled to special foods and a communion packet to enable them
to celebrate Passover. They argue that their affidavits and doctrinal materials
establish that at least a portion of Christian Identity practitioners believe
that consuming Passover foods and a communion packet is a necessary part of
their religion. The district court held that plaintiffs had not raised a
triable issue regarding their entitlement to such accommodations because they
did not show that such an observation of Passover was a major tenet of the
Christian Identity Faith. Under our case law, however, this is not the proper inquiry.
In LaFevers v. Saffle, 936 F.2d
1117, 1119 (10th Cir. 1991), we held that a prisoner's belief in religious
dietary practices is constitutionally protected if the belief is "genuine
and sincere," even if such dietary practices are not doctrinally "required" by the
prisoner's religion. Once a prisoner's sincerity has been established, he is
entitled to invoke First Amendment protections, and the court must engage in
the reasonableness inquiry established by Turner v. Safley. LaFevers, 936 F.2d
at 1119-20. Because here the district court did not determine whether
plaintiffs raised a triable issue regarding the sincerity of their beliefs as
to the observance of Passover, we must reverse the summary judgment in favor of
defendants and remand this claim for further proceedings.
Plaintiffs' complaint also
challenged the DOC's determination that the Christian Identity Faith is a
"STG" whose materials may be prohibited; challenged the standards set
forth in DOC administrative regulation 800-1 defining a "legitimate"
faith group; and raised a claim that the procedure for censoring reading
material violated due process because of inadequate notice, unrestricted time
period for decision, and the absence of an opportunity to be heard. See R. I,
doc. 6 at 3-3E and 4-4A. Neither the magistrate judge nor the district court
addressed these claims, which plaintiffs have preserved in their objections to
the magistrate judge's decision. Therefore, the case must be remanded for
further proceedings on these issues as well.
Plaintiffs' motion to supplement the record is granted. The judgment is
AFFIRMED in part and REVERSED in part, and the case is remanded for further
proceedings.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
* This order and judgment is
not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.