United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-2660

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Joseph Murchison

lllllllllllllllllllll Plaintiff - Appellant

v.

John Rogers; Terrena Ballinger; Greg Hadley; Warden Michael Bowersox; George

Lombardi; Superintendent Dave Dormire

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court 

for the Western District of Missouri - Springfield

____________

 Submitted: November 12, 2014

 Filed: March 11, 2015

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Before BYE, SHEPHERD, and KELLY, Circuit Judges.

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BYE, Circuit Judge.

Joseph Murchison, a former prisoner in the South Central Correctional Center

("SCCC") in Licking, Missouri, filed this action alleging prison officials violated his

1

On September 2, 2013, Murchison was transferred to the Northeast

1

Correctional Center.
First Amendment rights when they censored his subscribed issue of Newsweek

magazine. The district court dismissed the claims against some of the prison

2

officials and granted summary judgment in favor of the remaining prison officials. 

For the reasons set forth below, we affirm.

I

At the time of the events relevant to this dispute, Murchison was incarcerated

at the SCCC. A subscriber of Newsweek for many years, Murchison received most

of his issues of Newsweek at the SCCC without incident. On October 7, 2010,

however, members of the SCCC's censorship committee (the "Committee"), John

Rogers and Greg Hadley, censored the October 11, 2010, issue of Newsweek

addressed to Murchison on the grounds that it "promotes violence, disorder or the

violation of state or federal law including inflammatory material. (throughout) Pg.

32-34."3

SCCC prison regulations prohibited certain types of materials in the prison:

1. Offenders are prohibited from receiving correspondence, written

or recorded materials, or pictures that:

a. constitute a threat to the security, good order or []

discipline of the institution;

b. may facilitate or encourage criminal activity;

c. may interfere with the rehabilitation of an offender.

2. Correspondence, written or recorded materials or pictures are

subject to being censored in compliance with III.C.1. if the item:

The Honorable Greg Kays, Chief Judge, United States District Court for the

2

Western District of Missouri.

The Committee istasked with reviewing incoming, outgoing, and impounded

3

items and censoring any items not in compliance with prison regulations.

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a. promotes, incites, or advocates violence, disorder or the

violation of state or federal law . . .

Missouri Dep't of Corr. Institutional Servs. Policy and Procedure Manual, IS13-1.2

Censorship Procedures, III.C. However, "[c]orrespondence, printed or recorded

materials, and pictures may not be rejected because . . . the content is religious,

philosophical, social, sexual, political or is unpopular or repugnant . . . ." Id. at

III.B.2.

After the Committee notified Murchison that the Newsweek issue would be

censored, he filed an Informal Resolution Request ("IRR") in which he asserted that

censoring the magazine violated his constitutional rights. The IRR was denied on

December 17, 2010. Murchison then filed a grievance with the Warden of the SCCC,

Michael Bowersox, who denied the grievance. Murchison appealed to the Director

of the Division of Adult Institutions, Dave Dormire, and the Director of the Missouri

Department of Corrections, George Lombardi, through which he also received no

relief.

On October 20, 2011, Murchison filed this 42 U.S.C. § 1983 action against

several prison officialsfromthe SCCC. Shortly thereafter, Bowersox, Lombardi, and

Dormire filed motions to dismiss the claims against them on the ground that

Murchison failed to allege theywere personally involved in any alleged constitutional

violations against him. Over Murchison's opposition, the district court granted the

motion and dismissed these officials, finding they were not personally involved in

censoring the Newsweek issue and could not be held liable under a respondeat

superior claim under § 1983.

Murchison then proceeded with discovery on his remaining claims against

Terrena Ballinger, Hadley, and Rogers (the members of the Committee). During the

discovery phase of the litigation, Murchison's cell was searched and some materials,

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including legal materials, were confiscated, reportedly because they were in violation

of prison policy. Murchison filed several motions to stay the proceeding while he

was in administrative segregation, all of which were denied. On April 1, 2013, the

remaining prison officials filed a motion for summary judgment, which the district

court granted, finding that censoring the Newsweek issue did not violate Murchison's

First Amendment rights. The district court further concluded that the remaining

defendants were entitled to qualified immunity. In the same order, the district court

also denied Murchison's outstanding motion to compel, in part, because it was

untimely.

Murchison now appeals the grant of summary judgment, the dismissal of

Bowersox, Lombardi, and Dormire, and the denial of his motion to compel.

II

We review a district court's grant of summary judgment de novo, viewing the

evidence in the light most favorable to the non-moving party and giving the

non-moving party the benefit of all reasonable inferences. Dowell v. Lincoln Cnty.,

Mo., 762 F.3d 770, 775 (8th Cir. 2014). Summary judgment is appropriate only if the

moving party satisfies its burden of demonstrating that no genuine issues of material

fact remain for trial. Fed. R. Civ. P. 56(a).

To be valid, "a prison regulation [which] impinges on inmates' constitutional

rights . . . [must be] reasonably related to legitimate penological interests." Turner

v. Safley, 482 U.S. 78, 89 (1987). This level of scrutiny ensures that "prison

administrators, and not the courts, [] make the difficult judgments concerning

institutional operations." Id. (internal quotation marks and alterations omitted). 

There are four relevant factors in determining the reasonableness of the regulation:

(1) whether there is "a valid, rational connection between the prison regulation and

the legitimate governmental interest put forward to justify it"; (2) "whether there are

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alternative means of exercising the right that remain open to prison inmates"; (3) "the

impact accommodation of the asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources generally"; (4) and whether

there exist alternatives to accommodate the prisoner with a de minimis cost. Id. at

89-91 (internal quotation marks omitted).

A

We first consider whether there exists "a valid, rational connection between the

prison regulation and the legitimate governmental interest put forward to justify it." 

Turner, 482 U.S. at 89 (internal quotation marks omitted). "[T]he governmental

objective must be a legitimate and neutral one . . . without regard to the content of the

expression." Id. at 90. However, courts must be deferential to the prison officials'

views of what material may be inflammatory. See Murphy v. Missouri Dep't of Corr.,

372 F.3d 979, 986 (8th Cir. 2004). As the Supreme Court has cautioned, "prison

officials may well conclude that certain proposed interactions, though seemingly

innocuous to laymen, have potentially significant implications for the order and

security of a prison." Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).

We have already held that "[a] regulation that allows for censorship of

incoming items that are likely to incite violence is related to the institutional needs

of maintaining a controlled and secure environment among the prison population." 

Murphy, 372 F.3d at 986;see also Dean v. Bowersox, 325 F. App'x 470, 472 (8th Cir.

2009). But a facially valid regulation "may be invalid if it is applied to the particular

items in such a way that negates the legitimate concerns." Murphy, 372 F.3d at 986. 

Murchison does not challenge the prison regulations on their face but, rather, as

applied to the censorship of this particular Newsweek issue.

In such an as-applied challenge, we consider "whether a ban on these

particularitemsisreasonablyrelated to a legitimate penological objective." Williams

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v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997) (emphasis added). "Before the prison

authorities censor materials, they must review the content of each particular item

received." Murphy, 372 F.3d at 986. Importantly, though, "prison officials have

broad discretion to censor or restrict an inmate's receipt of a publication to serve a

legitimate penological interest–including the need for institutional security . . . ." 

Ivey v. Ashcroft, 62 F.3d 1421 (8th Cir. 1995) (unpublished). Thus, in our review,

we must "recognize and defer to the expertise of prison officials on what is likely to

be inflammatory in the prison environment." Murphy, 372 F.3d at 986. Nevertheless,

the court must conduct "'an independent review of the evidence' to determine if there

has been 'an exaggerated response to prison concerns' in relation to this particular

item." Id.; see also Kaden v. Slykhuis, 651 F.3d 966, 969 (8th Cir. 2011). 

"[S]ummary judgment [is] appropriate only if [the prison officials] present[] some

specific evidence of why this particular item implicates prison concerns." Murphy,

372 F.3d at 986.

Murchison first argues summary judgment was improper because the

Newsweek issue does not explicitly advocate for violence, disorder, or the violation

of state and federal laws. At the heart of the censored material is an article entitled

"Hiding Behind the Web," which discusses a blog, managed by a college student

residing in Mexico, reporting on various issues surrounding the violence of the drug

cartels in Mexico. The article includes two violent photographs, one showing two

individuals hanging from a bridge and another showing the body of a murdered

journalist lying on a street in a pool of blood. The article discusses and describes the

violence and disorder in Mexico brought on by the drug cartels. In particular, it

describes attacks by drug cartels against the government and military. While the

article discusses the lack of meaningfulreporting on drug cartels and organized crime

in Mexico, it also describes and depicts their continued acts of violence and lack of

respect for the law. Undoubtedly, the article's focus is on, and it depicts, disorder,

violence, and the violation of law. Although the material, on its face, may not

necessarily explicitly advocate for violence orthe violation oflaw, this does not mean

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it does not promote either. We do not mean to suggest that all materials discussing

or depicting violence actually promote violence or the violation of law. However, in

reviewing the prison officials' decision, we must be deferential. See, e.g., Murphy,

372 F.3d at 986 ("We recognize and defer to the expertise of prison officials on what

is likely to be inflammatory . . . ."); Overton v. Bazzetta, 539 U.S. 126, 132 (2003)

("We must accord substantial deference to the professional judgment of prison

administrators, who bear a significant responsibility for defining the legitimate goals

of a corrections systemand for determining the most appropriatemeans to accomplish

them."); Hamilton v. Schriro, 74 F.3d 1545, 1553 (8th Cir. 1996); Ivey, 62 F.3d at

1421 ("[P]rison officials have broad discretion to censor orrestrict an inmate'sreceipt

of a publication to serve a legitimate penological interest–including the need for

institutional security . . . ."); Murphy v. Missouri Dep't of Corr., 814 F.2d 1252, 1256

n.5 (8th Cir. 1987) (explaining that the district court properly gave deference to

testimony from prison officials that the publications would cause safety concerns); 

Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998) (en banc) (explaining, in an

as-applied challenge, that the court owed "great deference . . . to prison authorities in

their administration of state prison systems"); Prison Legal News v. Livingston, 683

F.3d 201, 216 (5th Cir. 2012) ("It is, of course, extremely difficult for courts to judge

whose assessment is more likely correct, which highlights the importance of the

deference that is accorded to prison administrators applying reasonable policies."). 

Accordingly, after independently reviewing the material and deferring to the prison

officials' expertise, we find their censorship of the Newsweek issue was reasonably

related to a legitimate penological objective and was not an exaggerated response.

Next, relying on Murphy,Murchison argues the proffered reason for censorship

is too conclusory and prison officials failed to put forth sufficient evidence that the

Newsweek issue promotes violence, disorder, or the violation ofstate and federal law. 

In support of their motion for summary judgment, the prison officials provided

specific evidence regarding the particular material that was censored. For instance,

Rogers's affidavit provided that the materials include photos of "death and murder,"

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"two men hanging from a bridge," "a dead man lying in a pool of blood," all of which

in his experience "promote prison violence, disorder, or violations of law." 

Ballinger's affidavit explained that "prolonged exposure to violent acts, through print

materials or other media, reinforces socially irresponsible behavior inside prisons." 

Furthermore, she explained that "print materials that demonstrate violent acts may be

expected to circulate among prisoners. . . [and] can be used to threaten other inmates,

as prison currency, or to identify gang affiliation."

Murchison's reliance on our decision in Murphy is misplaced. In Murphy, we

held that material issues of fact remained as to whether the censorship of the

publication at issue satisfied the Turner factors because the prison officials'

"documented reason for censoring the item [was] too conclusory to support a

judgment in its favor on this issue." 372 F.3d at 986. We therefore remanded to the

district court but expressly noted the prison officials could introduce further evidence

and again move for summary judgment. Id. More recently, however, in a similar type

of challenge to censorship, we affirmed a district court's grant of summary judgment

and rejection of the same arguments advanced here. In Dean, three inmates from the

SCCC argued that prison officials' censorship of various publications because they

promoted violence, disorder, orthe violation ofstate orfederal law violated their First

Amendment rights. 325 F. App'x at 471. We initially partially affirmed but reversed

the district court's dismissal of the as-applied challenge to the censorship. Id. On

remand, the district court granted summary judgment in favor of the prison officials

on the inmates' as-applied challenge to the censorship of 11 of the 61 publications at

issue because they promoted violence, finding that they included images "portray[ing]

blood spewing fromhumans or human-like creatures, humans shooting other humans,

and humans or human-like creatures with bloody mouths, faces, or bodies" and that

"[t]here is a rational connection between the bloody and weapon-laden images and

[the prison officials'] interest in safety and security." Dean v. Bowersox, No. 07-CV03298, at *19 (W.D. Mo. Aug. 29, 2013), aff'd, No. 13-3700, 2015 WL 405198, at

*1 (8th Cir. Feb. 2, 2015). The district court also found the inmates had alternative

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means to receive the information, the impact of accommodating their rights would be

substantial and that there would be no easy alternative, such that the censorship was

not an exaggerated response. Id. On the subsequent appeal, after carefully reviewing

the record and the parties' supplemental briefing ordered by the court, we affirmed the

district court. See Dean v. Bowersox, No. 13-3700, 2015 WL 405198, at *1 (8th Cir.

Feb. 2, 2015).

We find the circumstances of Dean more analogous to the circumstancesin this

case. Here, prison officials provided evidence that they reviewed the content in the

specific Newsweek issue and introduced testimony that this specific material would

promote violence, disorder, or violations of law. There is no suggestion the prison

has a blanket ban on thisspecific publication or on any material which includessome

type of violent content. Accordingly, sufficient evidence exists in the record to

support summary judgment.

Murchison also argues the prison officials failed to present evidence that the

censored materials have ever actually caused any disruption at the SCCC. However,

prison officials need not wait until particular prohibited material causes harm before

censoring it, so long as they have a "valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it." See

Turner, 482 U.S. at 89 (internal quotation marks omitted). Evidence of previous

incidents from specific content may bolster the rationale for censorship but it is not

necessary–prison officials may also seek to prevent harm that has yet to occur. As we

have previously explained, "Turner does not require 'actual proof that a legitimate

interest will be furthered by the challenged policy,' only that the interest being served

and the policy have an 'objectively rational' connection." Ortiz v. Fort Dodge Corr.

Facility, 368 F.3d 1024, 1027 (8th Cir. 2004) (quoting Herlein v. Higgins, 172 F.3d

1089, 1091 (8th Cir. 1999)). Indeed, evidence "short of an actual incident" satisfies

the "some evidence" requirement. Fegans v. Norris, 537 F.3d 897, 904 (8th Cir.

2008); see also Prison Legal News, 683 F.3d at 216 ("[P]rison policies may be

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legitimately based on prison administrators' reasonable assessment of potential

dangers."). This exact argument was considered and rejected by the district court in

Dean, which we affirmed on appeal. Dean, No. 07-CV-03298, at *18-19 (concluding

that lack of evidence regarding specific incidents caused by the censored material was

not determinative). We again hold that the interest advanced here was not dependent

on a showing of previous harms based on the same material.

Finally, the mere fact that other similar materials depicting violence exist

within the prison walls does not preclude summary judgment on the basis that this

violent material violates prison regulations. The existence of similar material within

the prison walls may serve to show inconsistencies in the manner in which material

is censored such as to undermine the rationale for censorship or show it was actually

censored for its content. Such "inconsistencies could become so significant that they

amount to a practical randomness that destroys the relationship between a regulation

and its legitimate penological objectives." Prison Legal, 683 F.3d at 221. Although

Murchison has presented a few materials available in the prison which demonstrate

at least some inconsistency in the manner of censoring such materials, in this case,

we do not believe Murchison demonstrated inconsistencies that rise to a level of

randomness or that undermine the rationale for censoring this particular item. With

the volume of material that must be screened, we cannot expect prison officials to

perfectly screen all material that violates prison regulations. Nor do we suggest that

prison officials may categorically prohibit all materials which may contain some

content involving violence. Thus, in the broad sense, it is not surprising that

Murchison was able to produce some othermaterials discussing or depicting violence. 

Moreover, in the unique context specific articles may discuss or involve violent

topics, it is difficult to analyze how much one article promotes violence or the

violation of law compared to another, particularly in the unique context of a prison. 

As such, the court does not generally engage in a "one-to-one comparison[] of a few

specific books." Id. Importantly, Murchison has not presented any evidence that the

same issue of Newsweek was made available to anyone else in the prison. Therefore,

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in this case, that some other violent material with similar content is available in the

prison does not undermine the prison officials decision to censor this particular

Newsweek issue. See Dean, No. 07-CV-03298, at *12, 14 (concluding that the

existence of other similar items in the library and limited inconsistency did not

preclude summary judgment); Jones ADC #70147 v. Golden, No. 5:10CV00068,

2011 WL 1480315, at *4 (E.D. Ark. Mar. 9, 2011) ("[A]lthough Mr. Jones provided

the Court with examples of both publications and movies that were not confiscated

or banned by the ADC, that does not create a genuine dispute of material fact in this

case"), adopted by 2011 WL 1479987 (E.D. Ark. Apr. 19, 2011); see also Hodgson

v. Fabian, 378 F. App'x 592, 594 (8th Cir. 2010) ("[S]ummary judgment is not

defeated by a random misapplication of a reasonable regulation." (internal quotation

marks omitted)); Weiler, 137 F.3d at 1050 (concluding that even if 100 inmates

received mail the plaintiff was not allowed to receive, due to "a breakdown in

mailroom procedures," the reasonableness of the regulations "would be no less

constitutional").

For these reasons, we find the district court correctly concluded prison officials

demonstrated a valid, rational connection between the censorship of the Newsweek

issue and the prison officials' interest in prohibiting materials that promote violence,

disorder or the violation of state or federal law.

B

We next consider whether Murchison has alternative means for exercising his

First Amendment right. In evaluating this factor, "courts should be particularly

conscious of the measure of judicial deference owed to corrections officials in

gauging the validity of the regulation." Turner, 482 U.S. at 90 (internal quotation

marks omitted). In considering this factor, "'the right' in question must be viewed

sensibly and expansively." Thornburgh, 490 U.S. at 417. The question is not merely

whether Murchison can read this particular article within this particular issue of

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Newsweek. Indeed, if the test was whether Murchison could somehow otherwise

obtain this specific article that has been considered a violation of prison regulations,

it would render this factor meaningless; unless willing to permit inmates to possess

contraband, inmates would never have alternative means of exercising the right.

The fact that Murchison particularly enjoys reading Newsweek does not mean

that he cannot exercise his First Amendment right to read about drug cartels or free

press issues in Mexico through other means. Indeed, by citing to other written and

non-written materials with similar content available in the prison library, Murchison

himself demonstratesthat he is otherwise able to exercise his First Amendment rights. 

Because there is no suggestion that there is a blanket ban on Newsweek in the

prison–to the contrary, he received all other issues–and there has been no suggestion

that the specific content has been entirely banned, Murchison has alternative means

to exercise his rights.

C

Under the third Turner factor, the court considers the impact the asserted

constitutional right will have on prison resources. Turner, 482 U.S. at 90. "When

accommodation of an asserted right will have a significant 'ripple effect' on fellow

inmates or on prison staff, courts should be particularly deferential to the informed

discretion of corrections officials." Id.

Murchison argues that there would be no "ripple effect" because other similar

violent content is available; however, as already discussed, defendants presented

specific evidence that this particular publication is likely to have a disruptive and

disorderly effect on the prison. It is well recognized that outside publications may

have significant effect in the prison population:

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Once in the prison, [incoming publications] reasonably may be expected

to circulate among prisoners, with the concomitant potential for

coordinated disruptive conduct. Furthermore, prisoners may observe

particular material in the possession of a fellow prisoner, draw

inferences about their fellow's beliefs, sexual orientation, or gang

affiliationsfromthat material, and cause disorder by acting accordingly.

Thornburgh, 490 U.S. at 412. We must also remember that "prison officials may well

conclude that certain proposed interactions, though seemingly innocuous to laymen,

have potentially significant implications for the order and security of a prison." Id.

at 407. Therefore, "[w]here . . . the right in question can be exercised only at the cost

of significantly less liberty and safety for everyone else, guards and other prisoners

alike, the courts should defer to the informed discretion of corrections officials." Id.

at 418 (internal quotations and citations omitted). Given the violent and disorderly

content of the censored material involving murder and organized crime, we defer to

the expertise and testimony of the prison officialsregarding its potential impact in the

prison.

D

The last factor we consider is whether there exist alternatives to accommodate

Murchison at a de minimis cost. "[T]he absence of ready alternatives is evidence of

the reasonableness of a prison regulation." Turner, 482 U.S. at 90. Importantly, the

Supreme Court has rejected the notion of a "least restrictive alternative" and

explained that "prison officials do not have to set up and then shoot down every

conceivable alternative method of accommodating the claimant's constitutional

complaint." Id. at 90-91. "But if an inmate claimant can point to an alternative that

fully accommodates the prisoner's rights at de minimis cost to valid penological

interests, a court may consider that as evidence that the regulation does not satisfy the

reasonable relationship standard." Id. at 91. "In the necessarily closed environment

of the correctional institution, few changes will have no ramifications on the liberty

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of others or on the use of the prison's limited resources for preserving institutional

order." Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990).

Murchison argues that three de minimis alternatives exist: (1) creating a

"reading room" for such material; (2) restricting the material by requiring inmates to

sign it out; and (3) tearing out the specific article to allow him to view the remainder. 

Although perhaps reasonable, we do not believe any of these alternatives can be

considered de minimis. First, creating a specific reading room would obviously

"present administrative difficulty and cost" and cannot be characterized as de

minimis. See Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir. 1993); see also Kendrick

v. Pope, 671 F.3d 686, 690 (8th Cir. 2012) (Colloton, J., concurring in part and

dissenting in part) ("Accommodating [the prisoner] would require correctional

officers to devote limited resources to monitoring a safety risk that the policy

otherwise eliminates."); Mauro v. Arpaio, 188 F.3d 1054, 1062 (9th Cir. 1999)

(holding that creation of a reading room would not be a de minimis alternative

because it "would impose a significant administrative burden on the jail"). Second,

allowing inmates to take the material by signing it out would in no way prevent

dissemination in the prison, which would likely undermine the specific penological

interests discussed above. It would almost certainly also require additional resources

to manage and monitor the process of signing out the materials, ensure they remain

only with the party who signed them out, and ensure they are timely returned. Even

if signed out material needs to remain in the library, prison staff would need to

dedicate additional resources to ensure that such materials are not removed. This,

too, is not de minimis.

Murchison's final suggestion–to simply remove the prohibited material and

allow the rest–at first blush has the most appeal. Tearing out specific pages of a

specific publication containing prohibited material does not sound particularly

difficult. Yet, when considered in the context of the review process for all incoming

mail, the question becomes more complex. Prison policy provides that "[i]f part of

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an item or mailing is prohibited, the entire item must be censored." Thus, prison

officials cannot merely tear out the pages specific to Murchison's censored

publication, they would have to do so for all incoming publications which include

prohibited content. Murchison has not challenged, and we have an insufficient record

to fully evaluate, whether the prison regulation of censoring an entire item based on

a limited amount of content subject to censorship, on its face, is constitutional.

In Thornburgh, the Supreme Court found convincing the testimony fromprison

officials that "tearing out the rejected portions and admitting the rest of the

publication would create more discontent than the current practice . . . ." 490 U.S. at

418-19. The Court reasoned that such a practice would cause "administrative

inconvenience" and that prison officials demonstrated a likelihood of greater harm. 

Id. at 419. In the context of this as-applied challenge, we believe requiring such a

change would have more than a de minimis impact. See Dean, No. 07-CV-03298, at

*11, 14, 15 (concluding that removal of free items or tearing out pages from

publications would be impractical based on volume of incoming mail and would

constitute a more than de minimis burden); see also Lindell v. McCaughtry, 115 F.

App'x 872, 879 (7th Cir. 2004) (citing Thornburgh and explaining that the court was

"unwilling to say that the DOC should be required to redact publications when the

Supreme Court approved the Federal Bureau of Prisons' retention of the

'all-or-nothing' rule, which bans the entire publication if anything is found that may

threaten security and order"); McCormick v. Werholtz, No. 07-2605, 2009 WL

5210845, at *7 (D. Kan. Dec. 23, 2009) (holding, for an as-applied challenge, that

this was not a de minimis alternative measure because to make such accommodation

for all inmates would "require an enormous additional expenditure of resources"). 

For instance, reviewing officials would likely be required to more closely review each

page of each publication, perhaps even excising portions of a particular page. There

may also be issuesrelated to the documentation and storage of any excised materials. 

We do not attempt hypothetically to decide in the abstract where such a line may be

drawn. Keeping in mind that prison officials need not adopt the least restrictive

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means, in the context of this as-applied challenge, we do not believe tearing out the

prohibited material would be a de minimis alternative.

For all of these reasons, we find the district court properly granted summary

judgment in favor of the prison officials. Because there was no constitutional

violation and Murchison cannot succeed on his claim, the prison officials were also

entitled to qualified immunity, and we need not address whether the district court

erred in dismissing the supervisory prison officials.

III

Murchison also argues the district court erred in denying his untimely motion

to compel discovery. We review such motions for a gross abuse of discretion. See

Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1052 (8th Cir. 2007).

Murchison assertsthe district court abused its discretion in denying the motion

because he wasin administrative confinement during some of the time for discovery.

However, he does not assert that he was unable to file legal materials while in

administrative confinement–indeed Murchison filed numerous motions during the

time he was in administrative confinement. The record shows Murchison was able

to communicate with the district court and had some access to his legal materials,

albeit not to the extent he desired. Most importantly, Murchison failsto articulate any

discovery he believes would demonstrate a genuine issue of material fact such as to

avoid what we conclude was a proper grant of summary judgment. The only

discovery he specifically mentions is related to whether any evidence exists of such

material causing disturbances in the prison. However, as explained above, even a

complete absence of such evidence does not preclude summary judgment. Because

Murchison cannot demonstrate that the denial of the untimely motion deprived him

of the opportunity to fairly respond to the motion for summary judgment, we find no

abuse of discretion. Cf. Ballard v. Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008)

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("The district court does not abuse its discretion by denying further discovery 'where

the nonmoving party is not deprived of a fair chance to respond to the summary

judgment motion.'").

IV

We affirm the judgment of the district court.

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