UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JACOB IND; JEFFREY PFLEGER,

Plaintiffs - Appellants,

v. RICK WRIGHT; DAN FOSTER; LARRY REID; STEVE SHUH; LEE HENDRIX; COLORADO DEPARTMENT OF CORRECTIONS,

Defendants - Appellees. No. 01-1338 D.C. No. 00-B-428 (D. Colorado)

ORDER Filed November 25, 2002

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.
This matter is before us on plaintiffs’ petition fo r rehearing and suggestion for rehearing en banc. For the following reasons, we grant the rehearing petition in part and deny in part. Plaintiffs brought this civil rights action againstthe Colorado Department of Corrections (DOC) and its employees, alleging th at the DOC’s policies and practices infringed on their First Amendment rights . The district court granted summary judgment in favor of defendants on all clai ms. As part of its judgment,-2-

the district court dismissed the claims against def endant Shuh for lack of personal participation. In our order and judgment, issued August 14, 2002, we affirmed the district court’s judgment in part and reversed in part. Bec ause the district court failed to consider plaintiffs’ due process claim regarding th e reading materials screening process, we remanded this claim for further action. In their petition for rehearing, plaintiffs argue that DOC employee Shuh should be r einstated as a defendant regarding the due process claim because he was a me mber of the prison’s reading committee. As the record contains evidence to supp ort a finding that Shuh personally participated in the reading materials sc reening process, we grant plaintiffs’ rehearing petition in part, and order that Shuh be reinstated as a defendant with regard to the due process claim only . In all other respects we deny the rehearing petition. A copy of the amended orde r and judgment is attached to this order. Plaintiffs’ suggestion for rehearing en banc has be en transmitted to all the judges of the court in regular active service in ac cordance with Rule 35(b) of the Federal Rules of Appellate Procedure. No member of the hearing panel and no judge in regular active service on the court having requested that the court be-3-

polled on rehearing en banc, Rule 35, Federal Rules of Appellate Procedure, the suggestion for rehearing en banc is denied. The mandate shall issue forthwith.

Entered for the Court PATRICK FISHER, Clerk By: /s/ Belinda Begley Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### NOV 25 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JACOB IND; JEFFREY PFLEGER,

Plaintiffs - Appellants,

v. RICK WRIGHT; DAN FOSTER; LARRY REID; STEVE SHUH; LEE HENDRIX; COLORADO DEPARTMENT OF CORRECTIONS,

Defendants - Appellees. No. 01-1338 D.C. No. 00-B-428 (D. Colorado)

AMENDED ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiffs Jacob Ind and Jeffrey Pfleger appeal the district court’s grant of summary judgment in favor of defendants on their ci vil rights lawsuit brought pursuant to 42 U.S.C. § 1983, and several other fed eral statutes. Because plaintiffs have not shown the existence of a genuin e issue of material fact or that the district court committed legal error regarding: (1) the Eleventh Amendment dismissal of claims against defendants in their off icial capacities; (2) the dismissal of claims against certain defendants for lack of personal participation, except for the dismissal of plaintiffs’ due process claim against defendant Shuh; (3) the constitutionality of Colorado Department of Corrections (DOC) administrative regulation 300-26, on its face and a s applied, as a restriction on plaintiffs’ First Amendment rights; and (4) the fai lure to provide separate taped religious programming, we affirm those portions of the district court’s judgment. Because the district court failed to address plaint iffs’ 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 adequa cy of the due process protections surrounding the censorship process, we remand this case for determination of those issues. Finally, because th e district court used an incorrect analysis to evaluate plaintiffs’ claim to Passover- related food and a communion-3-

packet, we reverse that portion of the judgment andremand for further proceedings. Plaintiffs are members of the “Christian Identity F aith” who are currently incarcerated at the Colorado State Penitentiary. T he 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 reli gion. In particular, plaintiffs complained about DOC admi nistrative regulation 300-26, which describes the types of reading materi al an inmate may receive or possess consistent with the DOC’s goals of maintain ing 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 prohib its materials that an objective person could reasonably believe “encourage or endor se: violence or disorder; . . . hatred or contempt of other persons; [or] vengeance against other persons.” Id. at 2. The regulation specifically identifies as ex cludable “[a]ny publication advocating hatred or contempt of other persons,” an d “[a]ny . . . material produced or distributed by Security Threat Groups ( STGs) or . . . material advocating or depicting association or membership i n a STG which is contrary to-4-

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 regulati on 300-26 was unconstitutionally overbroad and that it had been applied in a discriminatory fashion. They also alleged that the regulation, bo th 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 we re violated by the prison’s refusal to provide them with a Passover meal, a com munion packet, and leaven-free foods during the Passover week. Finall y, 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 recomme nded the following: (1) that-5-

plaintiffs’ claims for monetary relief be dismissedagainst defendants in their official capacities based on Eleventh Amendment sov ereign immunity; (2) that the First Amendment claims regarding administrative reg ulation 300-26 brought against defendants Hendricks and Shuh be dismissed for lack of personal participation; (3) that the claims relating to Pass over food brought against defendants Foster, Shuh, and Wright be dismissed fo r lack of personal participation; (4) that the claims relating to the failure to provide separate religious programming brought against defendants Fo ster, Wright, Hendrix, and Shuh be dismissed for lack of personal participatio n; (5) that summary judgment be granted in favor of the remaining defendants on plaintiffs’ claim that administrative regulation 300-26 is unconstitutiona l on its face and as applied; (6) that summary judgment be granted in favor of de fendants on plaintiffs’ claim of entitlement to Passover food and a communion pac ket 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 de fendants 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-6-

Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary ju dgment is appropriate “if the pleadings, depositions, answers to interrog atories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this st andard, “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). We examine first the constitutionality of DOC admin istrative regulation 300-26, using the standards adopted by the Supreme Court in Thornburgh v. Abbott , 490 U.S. 401 (1989). There, the Court held that regulations governing the receipt of reading materials by inmates must be ana lyzed under a reasonableness standard, and that such regulations are valid if th ey 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 (1987). Thornburgh , 490 U.S. at 413. Under this standard, courts mus t 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 g uards, other inmates, and-7-

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 pr ison security is legitimate “beyond question.” 490 U.S. at 415. The Court then held that “[w[here, as here, prison administrators draw distinctions between publicatio ns solely on the basis of their potential implications for prison security, the regulations are neutral.” Id. at 415-16 (quotation omitted). The Court concluded th at regulations allowing prison authorities discretion to determine that particularreading material creates an intolerable risk of disorder under the conditions o f their particular institution are rationally related to the legitimate interest of maintaining prison security. Id. at 416-17. Because this analysis applies with equal v alidity 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, re ceived, and read, prison inmates have adequate alternative means for exercising their religion. Id. at 418. We note that plaintiffs have not alleged they have been den ied the main texts of their-8-

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 impac t other prisoners, guards who must prevent any resulting animosity, and prison re sources 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 lim ited to materials that “advocate[] violence or are so inflammatory as to r easonably be believed to incite violence,” Aplts’ Br. at 3H, the Supreme Court specifically stated in Thornburgh that prison administrators are not required to limi t their exclusions to materials which are “likely” to lead to violence. 490 U.S. at 417. Plaintiffs also have not shown that the district co urt erred in holding that their reading materials were properly excluded unde r the regulation. We have independently reviewed all of the exhibits submitte d with the pleadings and those submitted under seal. Based on our review, we conc lude that the prohibited materials could reasonably be regarded as “publicat ion[s] advocating hatred or-9-

contempt of other persons,” or “encourag[ing] or en dors[ing] . . . 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 Passov er. They argue that their affidavits and doctrinal materials establish that at least a portion of Christian Identity practitioners believe that consuming Passo ver 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 enti tlement 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 pris oner’s sincerity has been established, he is entitled to invoke First Amendme nt 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 c ourt did not determine whether plaintiffs raised a triable issue regarding the sincerity of their beliefs as-10-

to the observance of Passover, we must reverse the summary judgment in favor of defendants and remand this claim for further procee dings. Plaintiffs’ complaint also challenged the DOC’s det ermination that the Christian Identity Faith is a “STG” whose materials may be prohibited; challenged the standards set forth in DOC administrative regul ation 800-1 defining a “legitimate” faith group; and raised a claim that the procedure for censoring reading material violated due process because of in adequate 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 ju dge nor the district court addressed these claims, which plaintiffs have prese rved in their objections to the magistrate judge’s decision. Therefore, the case m ust be remanded for further proceedings on these issues as well. Further, DOC employee Shuh must be reinstated as a defendant with regard to the due process claim only , as there is evidence to support a finding that he participated in the reading materials screening process.-11-

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. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge