* 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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

January 24, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAURICE A. LEE,

Plaintiff-Appellant,

v.

WILL CARLSON, Captain at the Utah

State Prison, individually; WADE

BULLOCK, Officer at the Utah State

Prison, individually; BRET

ZIMMERMAN, Officer at the Utah

State Prison, individually; W.J.

FARNSWORTH, Lieutenant at the

Utah State Prison, individually; JOHN

DOES 1-10, employees at Utah State

Prison, individually,

Defendants-Appellees.

No. 07-4093

(D.C. No. 2:03-CV-1098-PGC)

(D. Utah)

ORDER AND JUDGMENT*

Before TACHA, McCONNELL and GORSUCH, Circuit Judges.
1 Mr. Lee does not appeal from the district court’s order dismissing his other

claims during screening under 28 U.S.C. § 1915(e)(2)(b). 

-2-

Pro se plaintiff Maurice A. Lee, a Utah state prisoner, appeals the district

court’s order granting summary judgment to the defendants on the basis of

qualified immunity. We take jurisdiction under 28 U.S.C. § 1291 and affirm.

Mr. Lee’s suit under 42 U.S.C. § 1983 alleged that his First Amendment

rights were “violated when the written manuscripts, novels, short stories and

artwork of his own original ideas were illegally confiscated [from his prison

cell] . . . by the defendants.”1

 R., Doc. 5 at 3. During litigation, Mr. Lee

conceded the defendants were justified in seizing one of his short stories as

sexually-explicit material forbidden by prison regulations. As to the confiscation

of the remaining materials, he requested money damages and an injunction

ordering the defendants to return the materials to him. 

On summary judgment, the district court found there were genuine issues of

material fact whether confiscation of Mr. Lee’s property violated the First

Amendment. Nonetheless, the court found the defendants were entitled to

qualified immunity because they acted reasonably. After reviewing the record

and considering the parties’ arguments, we affirm substantially for the same

reasons set forth by the court in its March 27, 2007, order. 

When qualified immunity is raised as a defense, the burden shifts to the

plaintiff to “first establish that the defendant’s actions violated a constitutional or
-3-

statutory right.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citations

and quotation omitted). If the plaintiff meets this burden

he must then demonstrate that the right at issue was clearly

established at the time of the defendant’s unlawful conduct. In

determining whether the right was “clearly established,” the court

assesses the objective legal reasonableness of the action at the time

of the alleged violation and asks whether the right [was] sufficiently

clear that a reasonable [defendant] would understand that what he is

doing violates that right. . . . If the plaintiff fails to satisfy either

part of the two-part inquiry, the court must grant the defendant

qualified immunity.

Id. (quotation omitted).

This court reviews “summary judgment based on qualified immunity

de novo, considering all evidence in the light most favorable to the non-moving

party. [J]udgment is appropriate if the record shows . . . no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of

law.’” Ward v. Anderson, 494 F.3d 929, 934 (10th Cir. 2007) (quotation

omitted). 

In evaluating whether the law was clearly established at the time of the

alleged constitutional violation, the district court correctly held that “even if the

violated right is clearly established, ‘[q]ualified immunity shields an officer from

suit when she makes a decision that, even if constitutionally deficient, reasonably

misapprehends the law governing the circumstances she confronted.” R., Doc. 59

at 13 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). The court found 

although in hindsight the defendants confiscated non-sexually explicit material,
-4-

“those facts were not obvious to [the] [d]efendants at the time of their

actions. . . . In the prison context of overwhelming security concerns and limited

resources, such reasonable mistakes are inevitable.” Id. at 14 (emphasis added). 

This finding is supported by the record. 

Despite its conclusion that the defendants were entitled to qualified

immunity, the district court granted Mr. Lee’s request for injunctive relief. It

found “a substantial likelihood that [his] constitutional rights will be violated if

he is permanently deprived of his non-sexually explicit writings,” id. at 15, and

ordered their immediate return to him. On appeal, Mr. Lee complains that prison

officials have not complied with the order; however, he must seek relief in the

district court in the first instance.

We AFFIRM the judgment of the district court. Mr. Lee’s motion to

proceed in forma pauperis is GRANTED, and he is reminded of his continuing

obligation to make partial payments until he has paid the filing fee in its entirety. 

Entered for the Court

Deanell Reece Tacha

Circuit Judge