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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Terry Proctor
v.
Rick
Toney, Warden, Varner Supermax Unit, ADC, et al.
Appellees.
No. 02-2788
53 Fed. Appx. 793
December 3, 2002,
Submitted
December 11, 2002, Filed
NOTICE:RULES OF THE EIGHTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS.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.
PER CURIAM.
Arkansas
inmate Terry Proctor and non-prisoner Najee Muhammad Mustafa appeal the adverse
grant of summary [*794] judgment in their 42 U.S.C. § 1983 (2000)
action. Having carefully reviewed the record, see Mead v. Intermec Techs. Corp., 271 F.3d 715, 716 (8th Cir. 2001)(standard
of review), we affirm as to Mustafa but reverse and remand as to Proctor.
In their
original and amended complaints, Proctor and Mustafa sought damages and
injunctive relief from various Varner Supermax Unit (VSM) and Arkansas
Department of Correction officials. They
claimed violations of their federal and state rights to freedom of religion and
equal protection based on the following allegations. Proctor is a follower of
the Nation of Islam and Mustafa is a
bookstore owner and teacher of Nation of Islam doctrine, who stated that he is
an Islamic Imam and that he has a duty imposed by God and Nation of Islam
teachings to minister to Proctor. Proctor and Mustafa argue that despite VSM's
policy that permitted inmates on lower incentive levels n1 to receive religious
material through the mail and retain as personal property two religious
texts-defined as "primary" sources of religious doctrine--VSM
officials refused to allow Proctor to keep his Nation of Islam texts when he
arrived at VSM (hereinafter, "Equal Protection Claim"). In contrast,
the defendants allowed similarly situated non-Nation of Islam inmates to retain
non-Nation of Islam texts when they entered VSM. After entering VSM, the
appellants also alleged that the defendants twice denied Proctor permission to
receive packages containing books and a personal letter sent by Mustafa, but
allowed non-Nation of Islam inmates to receive religious materials (including letters
and books) through the mail. Further, they urge that non-Nation of Islam
"sender entities" were treated differently than Mustafa. n2
Defendants
moved for summary judgment, arguing, inter alia, that Proctor had failed to
exhaust administrative remedies as to his Equal Protection Claim as well as his
claim about personal letters from Mustafa, and that Mustafa's claims should be
dismissed for failure to prosecute. Proctor filed a motion to strike the claim
about personal letters from Mustafa and he also filed a summary judgment
response, which included his contention that the Equal Protection Claim was
only a "peripheral statement." Proctor and Mustafa together
moved for leave to file a second amended complaint, which would have included
new bases for relief, new defendants, and new allegations about religious
materials. The Magistrate Judge recommended (1) denying the motion for leave to
amend; (2) granting Proctor's motion to strike the claim about the personal
letters; (3) dismissing Proctor's claims without prejudice for failure to
exhaust, because of the unexhausted Equal Protection Claim (the Magistrate
Judge rejected Proctor's contention about the claim being only a peripheral
statement); (4) dismissing, based on the merits, Mustafa's federal claims; and
(5) dismissing Mustafa's state-law claims without prejudice. After being
granted an extension, Proctor filed objections, and both Proctor and Mustafa
moved to strike the Equal Protection Claim. After de novo review, the District
Court adopted the Magistrate Judge's recommendations. [*795] The District
Court also denied the pending motions as "moot."
We conclude that the District Court did not abuse its discretion
in denying leave to file a second amended complaint. The motion to amend was
filed well after defendants' summary judgment motion and well after the time
that Proctor exhausted his grievance
related to the new allegations about religious materials. Further, the new
claims and defendants would have caused more delay and required added
discovery. See Thompson-El v. Jones,
876 F.2d 66, 67-69 (8th Cir. 1989).
We believe,
however, that the District Court inadvertently neglected to exercise its
discretion as to the motion to strike the Equal Protection Claim. First,
striking that claim would have cured the exhaustion defect and would have
allowed the Court to reach the merits of Proctor's claims concerning his
receipt of books through the mail, which both sides had developed. Second, the
Court demonstrated a willingness to strike another inexhausted claim when it
adopted the Magistrate Judge's recommendation to grant Proctor's motion to
strike the claim about Mustafa's letters. Thus, we reverse and remand for
further consideration of the second motion to strike. Cf. Thornton v. Phillips County, Ark., 240 F.3d
728, 729 (8th Cir. 2001) (per
curiam)(although complaint as originally framed was subject to dismissal for
failure to state claim, plaintiff's objections to magistrate judge's report
should have been treated as motion for leave to amend the complaint; cause remanded
to reconsider motion).
As for the District Court's dismissal of Mustafa's federal
claims with prejudice, Mustafa argues that he did not know he was required to
respond to the summary judgment motion. The record shows, however, that Mustafa
had notice of the pending summary judgment motion well before the District
Court ruled on the motion, because he received the Magistrate Judge's report
and certain information about how to object to the report or submit added
evidence. Cf. Bendet v. Sandoz Pharm. Corp., 308 F.3d 907, 912 (8th Cir. 2002)("district
court may grant summary judgment sua sponte only if the 'party against whom
judgment will be entered was given sufficient advance notice and an adequate
opportunity to demonstrate why summary judgment should not be granted'"). As to the merits, the evidence
before the District Court did not indicate that the appellees were aware that
Mustafa was Proctor's spiritual advisor, that their actions were preventing
Mustafa from fulfilling his divine command to serve as Proctor's religious
advisor, that Mustafa was similarly situated to other "sender
entities," or that Mustafa was a member of the Nation of Islam. Thus,
appellees were entitled to qualified immunity--a defense they raised below--on
Mustafa's federal claims. See Sparr
v. Ward, 306 F.3d 589, 593 (8th Cir. 2002) (qualified immunity not appropriate
where official violated "clearly established" law; to avoid qualified
immunity "plaintiff must show a 'reasonable official would understand that
what he was doing violated' plaintiffs' rights"); Mead, 271 F.3d at 716
(grant of summary judgment may be affirmed on any basis supported by record).
Further, because the record shows that VSM policy now allows all VSM inmates to
keep as personal property two "personal" books, any claim Mustafa
asserted for injunctive relief is moot. Cf.
Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (qualified
immunity does not shield state officials from equitable relief).
Accordingly, we affirm as to Mustafa, but we reverse and remand as to
Proctor for further proceedings consistent with this opinion.
FOOTNOTES:
n1 VSM uses an incentive-level program
whereby inmates who demonstrate good conduct are promoted to higher incentive
levels with increased privileges until they reach incentive level five, at
which time they become eligible for transfer from VSM.
n2 The complaints included other
allegations and claims that the District Court addressed in its final order,
but which appellants have not raised on appeal. See Harris v. Folk Constr. Co., 138 F.3d 365, 366-67 n.1 (8th Cir.
1998) (failure to assert in brief grounds for reversal of certain orders
amounts to waiver of issues on appeal).