Strope v. Collins , 315 F. App'x 57 ( 2009 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    February 25, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    MICHAEL LEE STROPE, also known
    as Gordon Strope,
    Plaintiff-Appellant,
    ALAN KINGSLEY,
    Plaintiff,
    v.                                                  No. 08-3188
    (D.C. No. 5:06-CV-03150-JWL-JPO)
    JIM COLLINS, Mail Review Officer,                    (D. Kan.)
    Lansing Correctional Facility;
    DAVID R. MCKUNE, Warden,
    Lansing Correctional Facility;
    WILLIAM CUMMINGS, Secretary of
    Corrections Designee,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and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.
    Plaintiff-appellant Michael Lee Strope, a prison inmate proceeding pro se,
    appeals from the district court’s dismissal of this 
    42 U.S.C. § 1983
     lawsuit, which
    challenges a Kansas Department of Corrections (“KDOC”) mail censorship
    regulation banning “sexually explicit materials.” We affirm. 1
    I.
    Kansas Administrative Regulation 44-12-313 provides that no inmate
    within KDOC custody shall possess any “sexually explicit materials,” which is
    defined in part as any picture “contain[ing] nudity,” if its purpose is “sexual
    arousal or gratification.” R. Doc. 19-6 at 1. As relevant to this appeal, the
    regulation defines nudity as “the depiction or display of any state of undress in
    which the human . . . buttock . . . is less than completely and opaquely covered.”
    
    Id.
     Enforcing this regulation, defendants, all KDOC employees, withheld from
    Strope various magazines to which he subscribed because they contained images
    of scantily clad women revealing their partially bare buttocks. In May 2006,
    Strope filed this action under 
    42 U.S.C. § 1983
    , alleging violations of his First
    Amendment right to receive information while in prison. 2 He claimed the
    regulation’s definition of nudity was overly broad and that the regulation itself
    was invalid because it served no valid penological purpose.
    1
    Our jurisdiction derives from 
    28 U.S.C. § 1291
    .
    2
    Strope also brought claims under the Eighth and Fourteenth Amendments,
    but his appeal does not challenge the district court’s dismissal of those claims.
    -2-
    The defendants first moved to dismiss the complaint in October 2006,
    claiming qualified immunity as to the First Amendment claim, but the district
    court rejected the argument, finding Strope had asserted a constitutional violation.
    Shortly thereafter, on March 1, 2007, the defendants moved for summary
    judgment on the same grounds. They attached the offending photographs and
    affidavits from defendants Jim Collins, who was responsible for censoring the
    publications, and William Cummings, who reviewed Strope’s grievance appeals.
    The district court denied the motion, however, finding the record insufficiently
    developed on the issue of whether the challenged regulation served a legitimate
    penological interest under Turner v. Safley, 
    482 U.S. 78
     (1987). 3 Responding to
    the court’s concerns, the defendants submitted a second motion for summary
    judgment on March 10, 2008, this time attaching an affidavit from Roger
    Werholtz, Secretary of KDOC, who promulgated the challenged regulation.
    Werholtz testified that “depictions of nudity in any form generally tend to disrupt
    the overall security of a correctional facility.” R. Doc. 100-2 at 2. He specified
    3
    In Turner, the Supreme Court held “when a prison regulation impinges on
    inmates’ constitutional rights, the regulation is valid if it is reasonably related to
    legitimate penological interests.” 
    482 U.S. at 89
    . It instructed lower courts to
    consider the following factors in determining the validity of a challenged
    regulation: (1) whether there is “a valid, rational connection between the prison
    regulation and the legitimate governmental interest put forward to justify it,” 
    id.
    (quotation omitted); (2) “whether there are alternative means of exercising the
    right that remain open to prison inmates,” 
    id. at 90
    ; (3) “the impact
    accommodation of the asserted constitutional right will have on guards and other
    inmates, and the allocation of prison resources generally,” id.; and (4) whether
    there are ready alternatives to the challenged regulation.
    -3-
    such depictions can be used to harass staff members and he noted male inmates,
    in particular, who receive pictures of bare male buttocks are at risk of violent
    homophobic attacks. Finally, Werholtz claimed the regulation was a necessary
    tool in managing and treating the sex offender inmate population.
    On June 12, 2008, the district court issued an order granting the
    defendants’ second motion for summary judgment and dismissing the case. The
    court acknowledged Strope’s First Amendment right to receive information while
    in prison, but explained that he, as the plaintiff, bore the burden of disproving the
    validity of the regulation infringing that right. After carefully considering the
    record in light of Turner, it concluded he had failed to do so. Most importantly,
    for purposes of this appeal, the district court refused to invalidate the regulation
    simply because its definition of nudity banned a broader range of materials than
    censorship regulations at other facilities. And it concluded Strope failed to
    identify any obvious, easy alternatives that would accommodate his First
    Amendment rights at a de minimis cost to the prison’s legitimate interest in
    institutional security. Here Strope argues primarily that the regulation is
    unreasonable and its definition of nudity an exaggerated response to prison
    concerns. He also challenges a magistrate judge’s order denying his request to
    amend the complaint, which we discuss in greater detail below.
    -4-
    II.
    A.    Summary Judgment
    “We review de novo the grant of summary judgment to determine whether
    any genuine issues of material fact were in dispute and, if not, whether the district
    court correctly applied the substantive law at issue.” Zurich Am. Ins. Co. v.
    O’Hara Reg’l Ctr. for Rehab., 
    529 F.3d 916
    , 920 (10th Cir. 2008). Summary
    judgment is appropriate “if the pleadings, the discovery and disclosure materials
    on file, and any affidavits show that there is no genuine issue as to any
    material fact and that the movant is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(c).
    There are no significant differences between Strope’s appellate arguments
    and those asserted in the trial court, except for his attack on the Werholtz
    affidavit, which, he claims, only illuminates the defendants’ exaggerated response
    to prison concerns. We are not entirely sure what this means, but it appears to be
    another take on his challenge to the regulation’s definition of nudity as overbroad.
    The district court addressed this argument, and all the others, in three
    comprehensive and well-reasoned opinions, the last of which parsed the evidence
    in exhaustive detail before concluding the defendants’ conduct passed
    constitutional muster. We cannot improve on the district court’s excellent
    analysis and, accordingly, affirm the summary judgment for substantially the
    -5-
    same reasons set forth in the Court’s Memorandum and Order, dated June 12,
    2008.
    B.      Motion to Amend
    After consulting with Strope and the defendants, the district court imposed
    a scheduling order under Federal Rule of Civil Procedure 16(b), which set a
    deadline of September 4, 2007, for the filing of motions to join additional parties
    or otherwise amend the pleadings. On November 21, 2007, two months beyond
    this deadline, Strope moved to amend his complaint. While he did not provide a
    reason for his tardy application or attach a proposed amendment, he did describe
    generally the nature of his additional claims, which appeared to center on alleged
    misconduct by defense counsel, Trevin Wray. Strope accused Wray of conspiring
    with the defendants to unconstitutionally seize additional magazines and personal
    items, including some of the exhibits and legal materials he was using to
    prosecute this lawsuit. Construed liberally, the motion could be read as a request
    to add a retaliation claim since Strope accused the defendants and Wray of
    escalating their allegedly unconstitutional behavior shortly after losing their first
    summary judgment motion in June 2007.
    The motion to amend was denied by order of a magistrate judge on January
    8, 2008, because the magistrate concluded Strope had failed to demonstrate good
    cause to amend the scheduling order under Rule 16(b)(4). The basis for Strope’s
    appeal of this decision is unclear, although he appears to complain generally
    -6-
    about what he views as the district court’s failure to manage the defendants
    during the litigation. In the only part of his brief specifically addressing the
    denial of his motion to amend, he argues “the court abused [its] discretion and
    shown [sic] extreme favortism [sic] to the defendants which created extreme
    prejudice to the plaintiffs when he denied the Motion for Leave to File an
    Amended/Supplemental Claims [sic] to include on-going unlawful seizure of
    publication [sic], and an ongoing denial of due process.” Aplt. Br. at 3D. The
    defendants claim the issue is waived because Strope failed to object to the
    magistrate judge’s order, but in any event it was not an abuse of discretion.
    We reject the waiver argument, but agree there was no abuse of discretion in
    denying the motion.
    Regarding waiver, Rule 72(a) provides “[a] party may not assign as error a
    defect in [a magistrate’s] order not timely objected to.” We have a firm waiver
    rule, Morales-Fernandez v. INS, 
    418 F.3d 1116
    , 1119 (10th Cir. 2005), but it does
    not apply when “a pro se litigant has not been informed of the time period for
    objecting and the consequences of failing to object.” 
    Id.
     The magistrate
    neglected to include in his January 8, 2008, order the customary language
    advising Strope of his right to object and warning him that failure to do so would
    waive appellate review. Therefore, we do not apply the firm waiver rule in this
    case.
    -7-
    We review the district court’s denial of a motion to amend the complaint
    for an abuse of discretion. Fields v. Okla. State Penitentiary, 
    511 F.3d 1109
    ,
    1113 (10th Cir. 2007). Under this standard, we will not reverse absent “a definite
    and firm conviction that the lower court made a clear error of judgment or
    exceeded the bounds of permissible choice in the circumstances.” Moothart v.
    Bell, 
    21 F.3d 1499
    , 1504 (10th Cir. 1994) (quotation omitted). The district
    court’s decision in this case was grounded in its finding that Strope failed to show
    good cause for modifying the scheduling order under Rule 16(b)(4). 4 This was
    not an abuse of discretion. Demonstrating good cause under the rule “requires the
    moving party to show that it has been diligent in attempting to meet the deadlines,
    which means it must provide an adequate explanation for any delay.” 
    Id.
     The
    record in this case supports the district court’s finding that Strope failed to even
    “address the untimeliness of the motion [to amend].” R. Doc. 90 at 3. It also
    reveals he was aware of any potential retaliation claims before the September 4,
    2007, deadline — he complains repeatedly about the alleged seizure of his legal
    materials on October 4, 2007, which obviously occurred after the deadline, but he
    4
    We note this circuit has not yet decided “whether a party seeking to amend
    its pleadings after the scheduling order deadline must show ‘good cause’ for the
    amendment under Rule 16(b) in addition to the Rule 15(a) requirements.” Minter
    v. Prime Equip. Co., 
    451 F.3d 1196
    , 1205 n.4 (10th Cir. 2006). Neither party
    raised this issue, however, and the district court’s denial under Rule 16 as
    opposed to Rule 15 does not affect our disposition. Strope’s failure to provide
    any excuse for his delay justified the denial of his motion to amend as a matter of
    law. See, e.g., Durham v. Xerox Corp., 
    18 F.3d 836
    , 840 (10th Cir. 1994)
    (“[U]nexplained delay alone justifies the district court’s discretionary decision.”).
    -8-
    also accuses the defendants of beginning the retaliation much earlier: “[A]ll of a
    sudden after defendants were not able to dispose of this case on Summary
    Judgment back in June, 2007, shortly after, both plaintiffs were retaliated against
    . . . all in the same time-frame, August - October, 2007[.]” 
    Id.
     Doc. 88 at 3. By
    Strope’s own admission, the alleged retaliation occurred, or at least began, in time
    for him to amend his complaint to add such a claim. Given this, and Strope’s
    failure to specifically address good cause on appeal, we hold the district court
    acted within its discretion in denying his motion to amend.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Terrence L. O’Brien
    Circuit Judge
    -9-