Lewis v. Clark

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 18, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RAYMOND ANTHONY LEWIS,
Plaintiff - Appellant,
v. No. 15-8135
(D.C. No. 2:13-CV-00209-NDF)
JERRY CLARK, in his individual (D. Wyo.)
capacity; LT. GORDON CLAPP, in his
official capacity; NATRONA COUNTY
SHERIFF’S DEPARTMENT DEPUTY
LIEUTENANT,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Raymond Anthony Lewis, proceeding pro se, appeals the district court’s Fed.
R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 civil rights complaint relating to
his incarceration as a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I.
Lewis was a pretrial detainee in Natrona County Detention Center (“NCDC”)
in Wyoming from May to September, 2013. His § 1983 complaint alleges his
constitutional rights were violated at NCDC, and he named as defendants Lieutenant
Jerry Clark, then the Deputy Sheriff of Natrona County in charge of NCDC,1 and
numerous unnamed sheriff’s deputies in their official and individual capacities. The
district court dismissed Lewis’s first complaint with leave to amend, then dismissed
his second complaint under Rule 12(b)(6) for failure to state a claim. On appeal, we
affirmed in part and reversed in part, remanding several of Lewis’s claims for further
consideration. Lewis v. Clark, 577 F. App’x 786, 803 (10th Cir. 2014). The issues
on remand related to a one-time denial of Lewis’s request to use NCDC’s law library,
NCDC’s ban on inmate-to-inmate correspondence, and its ten-page limit on incoming
mail.
The district court ordered the defendants to file a Martinez report.2 After
consideration of the report, the court granted defendants’ motion to dismiss all of
Lewis’s official-capacity claims. It also granted Clark’s motion to dismiss the
1
Clark passed away after Lewis filed his notice of appeal. Natrona Sheriff’s
Department Lieutenant Gordon Clapp succeeded to Clark’s position in charge of
NCDC operations and has been substituted for Clark as to all of Lewis’s
official-capacity claims against Clark.
2
See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (authorizing
district courts to order prison officials to investigate an inmate’s § 1983 claims to
determine whether they have any factual or legal basis). A “Martinez report may not
be used to resolve disputed factual issues,” but “an uncontroverted report may serve
as the basis for a dismissal” on a Rule 12(b)(6) motion. Gallagher v. Shelton, 587
F.3d 1063, 1067 n.7 (10th Cir. 2009).
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individual-capacity claims against him. Finally, it dismissed the complaint in its
entirety because Lewis never identified any of the unnamed officials.
II.
We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco, 627 F.3d 1178,
1183 (10th Cir. 2010). Because Lewis is proceeding pro se, we construe his
pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Library-Access-Retaliation Claim. Lewis alleges that on August 7, 2013, at
10:00 p.m., an unknown deputy denied him access to NCDC’s law library on the
stated ground that Lewis didn’t need to use it because he had an attorney. He says
the deputy denied him access in retaliation for the numerous grievances he had filed
against NCDC officials, in violation of his rights under the First and Fourteenth
Amendments.
The district court dismissed Lewis’s retaliation claim because he didn’t allege
the unnamed deputy acted in accordance with any Natrona County or NCDC custom
or policy of retaliation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55
(1978) (holding that an official-capacity claim functions as a claim against the
governmental entity itself). Rather, Lewis alleges only one act by an unnamed
deputy under a vicarious-liability theory, which isn’t a permissible basis under
§ 1983. Id. at 691.
A governmental entity can be held liable under § 1983 only for an action the
entity officially sanctioned, for the actions of an official with final policymaking
authority, or for “a widespread practice that, although not authorized . . . , is so
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permanent and well-settled as to constitute a custom or usage with the force of law.”
City of St. Louis v. Praprotnik, 485 U.S. 112, 122-23, 127 (1988) (internal quotation
marks omitted).
On appeal, for the first time in his reply brief, Lewis suggests his retaliation
claim isn’t based only on the action of the unnamed deputy; he says that in the first
complaint he filed—later amended—he attached grievances filed by other inmates
which would show widespread retaliation by NCDC deputies. But his first complaint
didn’t allege any widespread policy of retaliation and, in any event, his amended
complaint “supersedes the original and renders it of no legal effect.” Davis v. TXO
Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (internal quotation marks
omitted). Lewis’s amended complaint very clearly based his retaliation claim on
only the act of the one unknown deputy denying his August 7 library request. The
district court correctly held this allegation fails to state a § 1983 official-capacity
claim, and we affirm the dismissal.
Due Process Denial of Access to Law Library. Lewis further alleges that the
one-time denial of library access on August 7 violated his procedural due process
rights. He claims language in the NCDC handbook gave him a protected liberty and
property interest in the use of the library that could not be denied without due
process.
To set forth a procedural due process violation, a plaintiff must first show “the
deprivation of an interest in life, liberty, or property.” Elliott v. Martinez, 675 F.3d
1241, 1244 (10th Cir. 2012) (internal quotation marks omitted). Second, the plaintiff
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must prove the procedures followed by the defendant didn’t comport with due
process of law. Id.The district court correctly ruled that language in prison handbooks, rules, and
regulations can’t be used to derive property or liberty interests in the prison context.
See Cosco v. Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999) (holding no liberty
interest can arise from prison regulations); Rapier v. Harris, 172 F.3d 999, 1005
(7th Cir. 1999) (holding the use of prison regulations to derive a liberty interest is
“no more valid in the context of pretrial detainees”). “Liberty interests can either
arise from the Constitution or be created by state law.” Cordova v. City of
Albuquerque, 816 F.3d 645, 656-57 (10th Cir. 2016). There is no right in the
Constitution to unfettered use of a prison law library, see Penrod v. Zavaras, 94 F.3d
1399, 1403 (10th Cir. 1996), and Lewis points to no state law giving him such an
interest, see Cordova, 816 F.3d at 657 (“[A] State creates a protected liberty interest
by placing substantive limitations on official discretion.” (internal quotation marks
omitted)). Thus, the district court correctly ruled Lewis’s complaint fails to identify
any constitutionally protected property or liberty interests which could support his
claim that the one-time denial of library access deprived him of due process.
Ban on Inmate-to-Inmate Correspondence. Lewis alleges NCDC’s absolute
ban on inmate-to-inmate correspondence violates his First and Fourteenth
Amendment rights because it doesn’t allow an exception for family members. Lewis
complains the ban prevents him from communicating with his son, an inmate at
another prison. “[W]hen a prison regulation impinges on inmates’ constitutional
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rights, the regulation is valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Turner held that restrictions on
inmate-to-inmate communications pass constitutional muster if they are reasonably
related to legitimate and neutral governmental objectives. Id. at 89, 93.
To balance the guarantees of the Constitution with the legitimate concerns of
prison administrators, courts use four factors set forth in Turner:
(1) whether a rational connection exists between the prison policy [or]
regulation and a legitimate governmental interest advanced as its
justification; (2) whether alternative means of exercising the right are
available notwithstanding the policy or regulation; (3) what effect
accommodating the exercise of the right would have on guards, other
prisoners, and prison resources generally; and (4) whether ready,
easy-to-implement alternatives exist that would accommodate the
prisoner’s rights.
Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir. 2007) (citing Turner, 482 U.S. at 89-
91). In ruling on a Rule 12(b)(6) motion to dismiss, the court needn’t assess or
address all four factors, but need only assess as a general matter whether the
regulation is reasonably related to a legitimate penological interest. Al-Owhali v.
Holder, 687 F.3d 1236, 1240 (10th Cir. 2012). Lewis has the burden to “plead facts
from which a plausible inference can be drawn that the [restriction] was not
reasonably related to a legitimate penological interest.” Id. (internal quotation marks
omitted).
The Martinez report noted that NCDC implemented its inmate-to-inmate
correspondence ban to ensure safety, security, and orderly operation of the facility.
See Turner, 482 U.S. at 92 (recognizing that “correspondence between prison
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institutions facilitates the development of informal organizations that threaten the
core functions of prison administration, maintaining safety and internal security,”
among other concerns). Assessing the Turner factors, the district court determined
the inmate-to-inmate correspondence ban was rationally connected to NCDC’s
legitimate security concerns and didn’t restrict other means of communication; and
Lewis didn’t allege any facts showing that any alternative to the ban would alleviate
NCDC’s safety and security concerns. It concluded the inmate-to-inmate
correspondence ban was reasonably related to a legitimate penological interest and
therefore valid.
The first Turner factor—whether a rational connection exists between the
prison regulation and a legitimate governmental interest—“is the most important,” as
“it is not simply a consideration to be weighed but rather an essential requirement.”
Al-Owhali, 687 F.3d at 1240 (internal quotation marks omitted); Boles, 486 F.3d at
1181 (holding the first Turner factor isn’t merely a factor, but a required element).
On appeal, Lewis asserts that NCDC’s “fixation on safety and security” with respect
to the inmate-to-inmate mail ban is “without merit.” Aplt. Opening Br. at 6. But in
his amended complaint he conceded that the “policy for no inmate-to-inmate mail” is
“absolutely” “a legitimate safety concern.” Aplt. App., Vol. I at 259 (Am. Compl.);
see also id. at 612 (Resp. to Mot. to Dismiss) (stating “[t]here is NO dispute that the
prohibition of ‘inmate-to-inmate’ correspondence is reasonably related to a
Governmental interest . . . concerning safety & security”).
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We agree with the district court that Lewis’s complaint fails to plead sufficient
facts that would permit a court to plausibly infer that NCDC’s inmate-to-inmate
correspondence ban wasn’t reasonably related to a legitimate penological interest and
affirm the dismissal of this claim. See id. at 91-93 (upholding restrictions on inmate-
to-inmate written correspondence as reasonably related to prison security and
legitimate penological interests); Al-Owhali, 687 F.3d at 1241 (affirming dismissal
where the prisoner’s complaint failed to allege facts indicating the prison’s ban on
communication with his nieces and nephews lacked a legitimate penological
objective).
Ten-Page Limitation on Mailed Items. Lewis alleges NCDC rejected research
materials his wife mailed him based on a ten-page limitation on mailed items. He
argues this action deprived him of his property without due process because the ten-
page limit rule isn’t published in NCDC’s regulation handbook. “[M]inimum
procedural safeguards must accompany the decision to withhold delivery or censor
incoming prison mail.” Jacklovich v. Simmons, 392 F. 3d 420, 433 (10th Cir. 2004).
The Martinez report showed that NCDC’s handbook states prison employees
may hold or return incoming mail if they deem it unacceptable in the exercise of their
discretion, and if any mail is deemed unacceptable, it will be returned to the sender,
and the prisoner will be notified of the violation. It is clear from Lewis’s complaint
that he received such a mail-violation notice, which prompted his grievance. The
district court ruled that the allegations in Lewis’s complaint demonstrated that NCDC
afforded Lewis adequate procedural safeguards by notifying him that mail may be
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withheld and providing him postdeprivation notice and the right to file a grievance,
which process he indeed used.
Lewis’s complaint merely alleges that he didn’t receive advance notice of the
ten-page limit. He asserted no facts, nor has he asserted any argument on appeal,
suggesting he didn’t receive adequate postdeprivation notice and remedy. It is well
settled that a deprivation of property doesn’t violate the Due Process Clause if a
meaningful postdeprivation remedy for the loss is available. See Hudson v. Palmer,
468 U.S. 517, 533 (1984). Because Lewis was afforded an adequate postdeprivation
remedy, we affirm the dismissal of this due process claim.
Lewis also alleges the ten-page limit violates his constitutional free-speech and
free-association rights. The district court conducted the four-factor Turner test,
concluding all weighed in favor of the limit’s constitutionality. It concluded
NCDC’s stated interests in orderly prison operations, reducing contraband, and
reducing the number of pages mail officials must scan are legitimate governmental
interests rationally related to the policy, and that Lewis hasn’t pled any facts
indicating otherwise. It further noted Lewis’s complaint doesn’t allege any facts
plausibly suggesting an alternative to accommodate him with minimal effect on
NCDC’s resources and penological interests. Finally, the court noted that NCDC
already offers an alternative, allowing unlimited daily mailings of less than ten pages.
Thus, it ruled Lewis’s complaint failed to state a constitutional claim. See Gee, 627
F.3d at 1185 (holding a First Amendment claim of interference with the mail is not
9
plausible absent factual allegations showing the alleged interference violated prison
rules or the rule was invalid under Turner).
On appeal, Lewis asserts NCDC’s safety concerns are exaggerated and asserts
other types of mail pose greater concerns than mailings over ten pages. Again, we
agree with the district court’s analysis and conclusion that Lewis’s complaint doesn’t
state facts that plausibly indicate the page limits lack a rational connection to a
legitimate penological interest.
Waived Arguments. Lewis asks that we reverse the denial of his second
motion to amend his amended complaint and his motion to compel interrogatories. In
a nondispositive pretrial order, the magistrate judge denied these motions. Lewis
failed to file any objection or appeal from that order to the district court.
Magistrate judges are authorized to decide nondispositive pretrial matters
pursuant to 28 U.S.C. § 636(b)(1)(A), and it is well established that we can’t review a
magistrate judge’s order under § 636(b)(1)(A) unless the party requesting review
timely objected to the order. Pippinger v. Rubin, 129 F.3d 519, 533 (10th Cir. 1997);
see also Fed. R. Civ. P. 72(a) (requiring parties to file written objections to a
magistrate judge’s order on a nondispositive matter with the district court within
fourteen days). In contrast to the notice and warning requirement that exists for pro
se parties when a magistrate judge issues a report and recommendation regarding a
dispositive matter under 28 U.S.C. § 636(b)(1)(B)-(C), see Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991), it is immaterial that the magistrate judge’s order
didn’t warn Lewis of the consequences of failing to file objections with the district
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court. See Caidor v. Onondaga Cty., 517 F.3d 601, 604-05 (2d Cir. 2008) (noting
that, in contrast to Fed. R. Civ. P. 72(b)(2), Rule 72(a) contains an express waiver
provision that pro se litigants should be aware of, and holding that “a pro se litigant
who fails to object timely to a magistrate judge’s order on a non-dispositive matter
waives the right to appellate review of that order, even absent express notice from the
magistrate judge that failure to object within ten days will preclude appellate
review”); United States v. Schultz, 565 F.3d 1353, 1362 (11th Cir. 2009) (same).
Accordingly, these arguments are waived.
Individual-Capacity Claims. Lewis didn’t file a response to the Rule 12(b)(6)
motion to dismiss filed by Clark in his individual capacity. The district court ruled
that Lewis’s complaint fails to state any individual-capacity claim against Clark both
because he didn’t allege any personal participation by Clark in any of the alleged
constitutional violations and because he hadn’t plausibly stated any claim that his
constitutional rights were violated. The district court also dismissed Lewis’s claims
against the remaining defendants, all of whom were unnamed deputies, because he
failed to name any, despite the information in the Martinez report. We discern no
error in the district court’s analysis of these claims, and affirm the dismissal of the
individual-capacity claims.
III.
Lewis’s motion for leave to file a second supplemental opening brief is denied.
We also deny his request that we stay this appeal so that he may file objections to the
magistrate judge’s order. We grant his request to proceed in forma pauperis, but we
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remind him that he is obligated to continue making partial payments until the entire
fee has been paid. The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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