## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 21 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ISA ABDULLAH RAMADAN SHABAZZ, Plaintiff-Appellant,

v. MICHAEL D. PARSONS; R. MICHAEL CODY; PHIL GILSTRAP; VINCENT KNIGHT, Defendants-Appellees, No. 97-6025

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 94-CV-1282)
Isa Shabazz, pro se.

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of (continued...) -2- Isa Shabazz, a pro se prisoner, brought this actionunder 42 U.S.C. § 1983 alleging that defendant prison officials violated h is rights under the First Amendment and the Religious Freedom Restoration Actby denying him access to certain issues of the magazine M UHAMMAD S PEAKS . The district court adopted the report and recommendation of the magistrate jud ge and granted summary judgment for defendants, holding that defendants di d not violate Mr. Shabazz’ First Amendment right to the free exercise of his r eligion by denying him access to issues of the magazine which the prison determin ed would create a danger of violence by advocating racial, religious, or nation al hatred. Mr. Shabazz appealed. We affirmed in part but remanded for further proceedings to determine whether defendants had denied Mr. Shabazz access to more material than was necessary. See Shabazz v. Parsons , No. 95-6267, 1996 WL 5548 (10th Cir. Jan. 8, 1996). On remand, the district court adopted the supplem ental report and recommendation of the magistrate judge and ruled th at defendants had shown a rational basis for withholding entire issues ratherthan redacting only the offending portions. Mr. Shabazz filed his notice o f appeal on December 27,
1996. 1 On January 31, 1997, the district court granted M r. Shabazz permission to1 (...continued)

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.

2Mr. Shabazz’ challenge to the prison indigency pol icy is raised for the first time on appeal and we therefore do not consid er it. See Vitkus v. Beatrice , No. 96-1240, 1997 WL 631332, at *10 (slip op. at 22 ) (10th Cir. Oct. 14, 1997). Mr. Shabazz also raises two issues that were resolv ed against him in the first appeal. He again asserts that his rights under the Religious Freedom Restoration Act were violated. We held in the first appeal that the Act does not apply to his claims. Moreover, the Supreme Court has recently d eclared the Act unconstitutional, see City of Boerne v. Flores , 117 S. Ct. 2157 (1997), and we therefore need not consider this claim further. Mr . Shabazz also challenges our previous holding that the subject material could re asonably be viewed as leading to racial, religious, or national hatred, and our h olding that a policy of excluding such material was rationally related to defendants’ legitimate interest in maintaining order and safety. We expressly resolve d these issues against Mr. Shabazz in the first appeal and he has offered noth ing that persuades us to revisit those rulings. Accordingly, the only substantive i ssue presented in this appeal is the propriety of defendants’ decision to withhold e ntire issues containing objectionable material rather than redacting only t he offending material. -3- proceed in forma pauperis, but directed him to make partial payments of the filing fee on appeal pursuant to the Prison Litigation Ref orm Act of 1995 (PLRA), 28 U.S.C.A. § 1915 (West Supp. 1997). Mr. Shabazz contends on appeal that the prison’s indigency policy deprives him of his rightof access to the courts, that the fee provisions of the PLRA are unconstitutional, an d that the withholding of entire issues of MUHAMMAD S PEAKS violated his constitutional rights. 2We affirm.-4- I.

We begin by addressing Mr. Shabazz’ challenges to the fee provisions of the PLRA. Mr. Shabazz first appears to argue that the Act should not apply to him because his action was filed in district court before April 26, 1996, the Act’s effective date. In White v. Gregory , 87 F.3d 429, 430 (10th Cir. 1996), we held that the Act’s fee provisions do not apply when the notice of appeal was filed prior to the Act’s effective date. We had no occas ion there to decide whether the Act would apply when, as here, “the prisoner commen ced his action in district

court before April 26, 1996, but filed notice of appeal afterApril 26, 1996.” Id. at 430 n.1. Subsequently, however, we held that a prisoner proceeding in forma pauperis on appeal who files his notice of appeal a fter the PLRA enactment date “is required to comply with the filing fee requirem ents of § 1915(b), as amended by the PLRA.” Schlicher v. Thomas , 111 F.3d 777, 778-79 n.1 (10th Cir. 1997). In applying that holding here, we point out that th e plain language of the Act requires us to apply its fee provisions when a pris oner “files an appeal in forma pauperis.” 28 U.S.C.A. § 1915(b)(1). Because the PLRA was in effect at the time the appeal was filed, the fee provisions are applicable and Mr. Shabazz had notice that they would be applied to him.-5- II.

Mr. Shabazz also challenges the fee provisions as v iolative of his constitutional rights, asserting that he should notbe forced to choose between spending his limited prison account on the small am enities of life available to him in prison and pursuing an appeal. We are not persu aded. The fee provisions of the PLRA require that: (2) A prisoner seeking to bring a civil action or appe al a judgment in a civil action or proceeding without pr epayment of fees or security therefor, . . . shall submit a certified copy of the trust fu nd account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint o r notice of appeal, obtained from the appropriate official of each pris on at which the prisoner is or was confined. 28 U.S.C.A. § 1915(a)(2). The PLRA further provide s:

(b)(1) Notwithstanding subsection (a), if a prisoner bring s a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. T he court shall assess and, when funds exist, collect, as a partial paymen t of any court fees required by law, an initial partial filing fee of 20 percent of the greater of-- ( A ) the average monthly deposits to the prisoner’s account; or ( B ) the average monthly balance in the prisoner’s account for the 6-month period immediately precedin g the filing of the complaint or notice of appeal. (2) After payment of the initial partial filing fee, t he prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forwardpayments from-6-

the prisoner’s account to the clerk of the court ea ch time the amount in the account exceeds $10 until the filing fees are paid. Id. § 1915(b). As the Sixth Circuit has explained, although all prisoners are required to pay an initi al partial filing fee, payment of this fee is made only when funds exist. After payment of the initial partial filing fee, the prisoner must m ake monthly payments equal to 20 percent of the preceding month ’s income credited to the prisoner’s account, but payments wi ll be extracted only in months when the prisoner’s trust fund accou nt exceeds ten dollars ($10). Hampton v. Hobbs , 106 F.3d 1281, 1284 (6th Cir. 1997). In additionto assessing modest amounts as described above, the PLRA also pr ovides that “[i]n no event shall a prisoner be prohibited from bringing a civi l action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” 28 U .S.C.A. § 1915(b)(4). Finally, the Act provides that a successful prison litigant may recover costs against defendants other than the United States. Id. § 1915(f)(1). Courts have considered a variety of challenges to the constitutionality of the above provisions and have uniformly concluded that the provisions pass constitutional muster. See Mitchell v. Farcass , 112 F.3d 1483, 1487-89 (11th Cir. 1997); Roller v. Gunn , 107 F.3d 227, 231-34 (4th Cir. 1997); Hampton , 106 F.3d at 1283-88. We agree with those courts. We find p ersuasive the analysis of the two circuits that considered and rejected the speci fic argument Mr. Shabazz raises3 We deny Mr. Shabazz’ motion for reconsideration of our April 23, 1997,

order declaring him responsible for continuing paym ents on his filing fee in this appeal until the fee is paid in full. -7- here. In Roller , the court said: To further ensure that prisoners need not “totally deprive themselves of those small amenities of life which they are per mitted to acquire in a prison or mental hospital beyond the food, clothi ng, and lodging already furnished by the state,” section 1915 allow s payment to be taken from the prisoner’s account only where “the amount in the account exceeds $10. . . .” Roller , 107 F.3d at 233 (citations omitted). Moreover, [r]equiring prisoners to make economic decisions ab out filing lawsuits does not deny access to the courts; it mer ely places the indigent prisoner in a position similar to that fac ed by those whose basic costs of living are not paid by the state. T hose living outside of prisons cannot file a lawsuit every time they su ffer a real or imagined slight. Instead, they must weigh the impo rtance of redress before resorting to the legal system. If a prisone r determines that his funds are better spent on other items rather than f iling a civil rights suit, “he has demonstrated an implied evaluation of that suit” that the courts should be entitled to honor. Id. (citation omitted); see also Hampton , 106 F.3d at 1285. Mr. Shabazz has offered no argument, and we have no t discovered one, that causes us to disagree with the above analysis or to conclude that we should not apply it here. Accordingly, we reject his attack o n the constitutionality of the
PLRA. 3-8- III.

We now turn to Mr. Shabazz’ challenge to the adopti on of the magistrate judge’s report. On remand, the magistrate directedthe parties to supplement the record with regard to the narrow issue set out by this court in its remand order, i.e. , “whether any rational basis existed for denying e ntire issues of the magazine Muhammad Speaks to the Plaintiff, rather than simply redacting the offending portions.” Rec., vol. I, doc. 68 at 2. In assessi ng the issue in light of the record, the magistrate correctly pointed out that the inqui ry does not employ “a ‘least restrictive alternative’ test,” Turner v. Safley , 482 U.S. 78, 90 (1987), and that courts must accord deference to a prison’s choice o f regulations employed to implement valid penological goals, id. Nonetheless, “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 co nsider that as evidence that the regulation does not satisfy the reasonable relation ship standard.” Id. at 91. Here, defendants asserted that redacting offending portions of a magazine rather than withholding the entire issue was not a reasonable alternative for two reasons. They offered evidence showing that the co sts to implement such a procedure would be prohibitive, and that the proced ure would prevent the prisoner from obtaining meaningful administrative review. W e have reviewed the record-9-

offered by defendants and we agree that defendants have adequately supported their policy choice, particularly in view of Mr. Sh abazz’ failure to offer an alternative that addresses these legitimate concern s. We AFFIRM the judgment of the district court.