Neal v. Lewis - Case Law

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

July 13, 2005
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

ALDRED NEAL,

Plaintiff - Appellant,
v. No. 04-3324
D.F. LEWIS, Correctional Officer, El
Dorado Correctional Facility; D.
BRATTON, Unit Team Manager, El
Dorado Correctional Facility;
MICHAEL NELSON, Warden, El
Dorado Correctional Facility; K.
DUTTON, Sergeant, El Dorado
Correctional Facility; J. SPILKER,
Unit Team Manager, El Dorado
Correctional Facility; DON THOMAS,
Deputy Warden of Programs, El
Dorado Correctional Facility;
WILLIAM L. CUMMINGS, Secretary
of Corrections, in their individual and
personal capacities,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 01-CV-3434-JAR)

Aldred Neal, Lansing, Kansas, Pro Se.

Ralph De Zago, Assistant Attorney General for the State of Kansas, Topeka,
Kansas, and Phill Kline, Attorney General for the State of Kansas, Office of the
Attorney General for the State of Kansas, Topeka, Kansas, for Defendants-
Appellees.

Before EBEL, McKAY, and HENRY, Circuit Judges. *

HENRY, Circuit Judge.

Mr. Aldred Neal, a Shiite Muslim incarcerated at the El Dorado

Correctional Facility in El Dorado, Kansas, filed a pro se 42 U.S.C. § 1983

complaint in federal district court alleging that prison officials interfered with his

religious observances in violation of the First and Fourteenth Amendments. The

district court granted summary judgment against him on all claims, and he appeals

that determination. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

I. BACKGROUND

In its well-reasoned opinion, the district court detailed the facts, which it

accepted as true because they were uncontroverted and found support in the

record. See Neal v. Lewis, 325 F. Supp. 2d 1231 (D. Kan. 2004). We summarize

them briefly here.

After examining appellant’s brief and the appellate record, this panel has
*

determined unanimously that oral argument would not materially assist the
determination of this appeal. See F ED . R. A PP . P. 34(a); 10 TH C IR . R. 34.1(G).
The case is therefore ordered submitted without oral argument.

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In January 1996, the Kansas Department of Corrections implemented a

“Privileges and Incentives Level Program.” The purpose of the program was to

establish a comprehensive system of earnable offender privileges and provide an

effective means of managing the offender population and reinforcing constructive

behavior. Kansas Administrative Regulation 44-12-601(q)(1) provides that “all

books, newspapers or periodicals shall be purchased through special purchase

orders” by incarcerated inmates. Inmates may utilize special purchase orders for

zero dollars to obtain free books.

The Kansas Department of Corrections has a number of internal

management policy and procedures (IMPPs) concerning the operation and

management of correctional facilities. These IMPPs mandate that a prisoner is

allowed to keep in his or her cell a dictionary, a thesaurus, the primary religious

text of his or her faith, and twelve other books chosen by the prisoner. The

IMPPs also state that the primary text of Islamic religions is the Qur’an. If a

prisoner violates these regulations, there are six separate methods for disposing of

the offending property:

(a) mailing the property to an address of the inmate’s choosing at the
inmate’s expense or, with warden approval, at the facility’s expense;

(b) donating the property to a charitable organization;

(d) taking the property to a sponsor while on an approved furlough;

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(e) delivering the property to an address in the locale of the facility, if
approved by the warden; and

(f) removing the property by a means selected by the Warden if the inmate
refuses to designate an approved means of removal.

See IMPP 12-120(IX)(B).

On September 27, 1999, Mr. Neal was in violation of IMPP 12-120 because

he had more than twelve books in his cell. Defendant Lewis instructed Mr. Neal

to choose the twelve books he wanted to keep in his cell and advised Mr. Neal

that books in excess of the twelve-book limit would have to be removed from his

cell. The same day, prison officials served Mr. Neal with a “request/authorization

to remove personal property.” This document listed the books that needed to be

removed from the facility and asked Mr. Neal to determine the method of

removal. Mr. Neal was offered two additional options in addition to the six

options available under IMPP 12-120(IX)(B): he could donate the books to the

prison or to the facility’s chaplain. Both additional options would have allowed

Mr. Neal access to the donated books.

Mr. Neal refused to designate his choice. Instead, he filed a grievance and

an appeal concerning the excess books. After the appeal process ended in June

2000, he still refused to designate a location for the books. On December 22,

2000, more than fifteen months after the books were removed from his cell for the

IMPP 12-120 violation, and more than six months after the administrative appeal

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process was completed, the prison destroyed the books.

Mr. Neal filed a § 1983 complaint in federal district court alleging that the

defendants (1) violated his right to practice his religion and receive religious

materials, (2) denied him due process by failing to give him a pre-deprivation

hearing prior to the seizure and destruction of his books, and (3) violated his

equal protection rights by providing materials for faiths other than his but not for

Shiite Muslims. The defendants moved for summary judgment and supported

their motion with evidentiary materials. Despite two lengthy extensions of time,

Mr. Neal failed to respond to defendants’ summary judgment motion. The district

court denied his third request for extension, and he finally filed an untimely

response. The district court disregarded this response pursuant to its local rules

because Mr. Neal had not made any showing of excusable neglect to justify his

tardiness. See D. K AN . R. 7.4 (providing that a party’s failure to file a timely

response constitutes a waiver of the right to file a response, except upon a

showing of excusable neglect).

The district court granted summary judgment in favor of the defendants on

all claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

district court.

II. STANDARD OF REVIEW

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

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the record in the light most favorable to the party opposing summary judgment.

See So. Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1139 (10th Cir.

2004). Summary judgment is appropriate if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); F ED . R. C IV . P. 56(c). Because Mr.

Neal is representing himself on appeal, we will construe his pleadings liberally.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Our review of the district court’s holding that the individual defendants are

entitled to qualified immunity differs from other summary judgment rulings.

Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). Once a defendant raises a

the defense of qualified immunity, “the burden shifts to the plaintiff . . . [to]

satisf[y] a heavy two-part burden.” Id. (quotation and citations omitted). First,

the plaintiff must demonstrate that the defendant “violated a constitutional or

statutory right.” Id. (quotation omitted). Second, he must show “that the right at

issue was clearly established at the time of the defendant’s unlawful conduct.”

Id. at 1156. If the plaintiff cannot make both showings, the defendant is entitled

to qualified immunity. Id. If he can, the burden shifts to the defendant to “prove

that there are no genuine issues of material fact and that he or she is entitled to

judgment as a matter of law.” Id. (quotation omitted).

Here, Mr. Neal’s failure to timely respond to defendants’ motion for

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summary judgment does not, by itself, make summary judgment proper. His

burden to respond arises only if the defendants have met their initial burden of

production under Rule 56(c). See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.

2002). If the evidence produced in support of the summary judgment motion does

not meet this burden, “summary judgment must be denied even if no opposing

evidentiary matter is presented.” Id. (quoting Adickes v. S.H. Kress & Co., 398

U.S. 144, 160 (1970) (emphasis in Reed).

III. ANALYSIS

We affirm the district court for substantially the same reasons set forth in

its well-reasoned and thorough opinion. As the district court explained, Mr. Neal

sued the defendants in their personal and individual capacities. However, his

complaint also states that at least one defendant was “acting in his official

capacity.” See Rec. doc. 1, at 1-2 (complaint filed Oct. 25, 2001). We therefore

interpret his allegations as directed at the defendants in both their official and

individual capacities.

Mr. Neal’s official capacity claims must fail, because state officials acting

in their official capacities are not “persons” subject to liability under § 1983. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

As to Mr. Neal’s individual capacity claims, it is clear that the defendants

did not violate his First Amendment rights simply by enforcing a prison

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regulation limiting the number of books he could keep in his cell. As the district

court noted, nothing prevented Mr. Neal from “stocking his cell with twelve

religious texts in addition to the Qur’an.” Neal, 325 F. Supp. 2d at 1236. Thus,

the IMPPs at issue provided Mr. Neal with a reasonable opportunity to pursue his

religion in light of the prison’s legitimate administrative and penological

objectives, including fire safety, institutional security, control of the source and

flow of property within the prison, and the effective establishment of a behavior-

incentive program.

Mr. Neal also suffered no due process violation. Defendants gave Mr. Neal

eight distinct ways to comply with the IMPP; he failed to choose any of the

myriad options available to him. He has no legitimate complaint about a lack of

process arising from the prison’s destruction of books fifteen months after giving

him legitimate choices.

Finally, we agree with the district court that Mr. Neal has failed to meet his

burden of proof with regard to his putative equal protection claim. All prisoners

had the same right to fifteen total books in their cells, regardless of what religion,

if any, they practiced. Mr. Neal fails to allege any way in which he was treated

differently from others situated similarly to himself.

IV. CONCLUSION

Accordingly, we AFFIRM the district court’s opinion granting summary

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judgment to the defendants.