                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 8 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DONALD E. DERRICK,

                  Plaintiff-Appellant,

    v.                                                    No. 03-6090
                                                    (D.C. No. CIV-02-691-M)
    RON WARD, Director; LENORA                            (W.D. Okla.)
    JORDAN, Warden; DONALD
    COFFMAN, Deputy Warden;
    OKLAHOMA DEPARTMENT OF
    CORRECTIONS,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE and McKAY , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Donald E. Derrick, appearing pro se, appeals from the district court’s grant

of summary judgment in favor of defendants. Derrick brings this action pursuant

to 42 U.S.C. § 1983 alleging that state prison officials Ron Ward, Lenora Jordan,

and Donald Coffman, violated his constitutional rights. The district court found

that Derrick’s claims against the defendants in their official capacities were

barred by the Eleventh Amendment, and that the undisputed facts demonstrated

that Derrick’s constitutional rights were not violated. The district court

determined also that Dennis Burrell and Arthur Lightle were not proper

defendants. We affirm.

                                          I.

      Derrick was an inmate at the James Crabtree Correctional Center (JCCC)

when the events giving rise to this action took place. Derrick proclaims himself

to be a “Kingdom Identity Christian, an[d] a member of the Church of Jesus

Christ Christian of the Aryan Nations.” R., Doc. 22 at 5. In early March 2002,

Derrick requested a time slot in the prison chapel to hold Kingdom Identity

services. The prison chaplain, Burrell, initially told Derrick that he could start

using the chapel for services on March 16, 2002, but then later discovered a

scheduling conflict. Burrell told his assistant, Paul Revel, to inform Derrick that

his group could not start meeting at the chapel until after April 1, 2002. On

March 16, 2002, Derrick and thirty-three other inmates arrived at the chapel and


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were told that, due to a scheduling conflict, they could not begin using the chapel

for another two weeks. Derrick and the group of inmates then went outside the

chapel and began conducting their meeting. After a short time, some correctional

officers ordered the group to break up because they had not been given

permission for the gathering. The correctional officers confiscated the group’s

attendance list and other materials. Two weeks later Derrick was placed in transit

detention, a form of administrative segregation. Derrick requested an explanation

for his segregation and Warden Jordan responded with the following letter:

      You were placed in [transit detention] due to your involvement in an
      unauthorized grouping on the yard at James Crabtree Correctional
      Center. You did not have permission to have a religious meeting and
      the literature that was confiscated from the meeting indicates an
      Aryan format. The Aryan Brotherhood is not a recognized religious
      group but is a nationally recognized hate group. . . . You have been
      placed in the Segregated Housing Unit as your continued presence in
      the general populations is believed to be a threat to the security of
      this institution.

      ....

      Should you desire religious services you will need to request this
      from the Chaplain. Your placement in the Segregation Housing Unit
      is consistent with policy and in the best interest of this institution.

R., Doc. 20, Attachment G at 8.

      On May 15, 2002, Derrick was transferred from JCCC to the Lawton

Correctional Facility. On May 23, 2002, Derrick filed a complaint alleging that




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his First, Eighth, and Fourteenth Amendment rights         1
                                                               were violated when

defendants discriminated against him and persecuted him because of his religious

beliefs.

                                             II.

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

applying the same standard as the district court.        See Simms v. Okla. ex rel. Dep’t

of Mental Health & Substance Abuse Servs.           , 165 F.3d 1321, 1326 (10th Cir.

1999). Summary judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

applying this standard, “we examine the factual record and reasonable inferences

therefrom in the light most favorable to the party opposing the motion.”

McKnight v. Kimberly Clark Corp.       , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotation omitted).

       Derrick sued the correction officers in both their official and individual

capacities. The district court properly found that defendants met their burden on


1
       In addition to his constitutional claims, Derrick alleged that the defendants
violated the Religious Freedom Restoration Act of 1993, 42 U.S.C.
§§ 2000bb-2000bb-4. The district court properly denied this claim because in
City of Boerne v. Flores , 521 U.S. 507, 536 (1997), the Supreme Court held this
Act unconstitutional as applied to the states.

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summary judgment because: 1) the Eleventh Amendment bars Derrick’s claims

against defendants in their official capacities, and 2) Derrick did not establish that

the defendants, in their individual capacities, violated any of his constitutional

rights.

                                             A.

          First, we address Derrick’s suit against defendants in their official

capacities. Under the Eleventh Amendment, a state is generally immune from suit

in federal court.    See Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the

Interior , 160 F.3d 602, 607 (10th Cir. 1998). State officials, acting in their

official capacity, are considered to be acting on behalf of the state, so they also

receive Eleventh Amendment immunity from suits in federal court.               See id. There

are two exceptions to this general rule: 1) if the state unmistakably waives its

Eleventh Amendment immunity, or 2) if Congress unmistakably abrogates the

state’s immunity by statute.     See Ramirez v. Okla. Dep’t of Mental Health        , 41

F.3d 584, 588 (10th Cir. 1994)     . The State of Oklahoma has not waived its

Eleventh Amendment immunity.          Id. at 589; Nichols v. Dep’t of Corr.,     631 P.2d

746, 751 (Okla. 1981); Okla. Stat. tit. 51 §152.1. Furthermore, Congress did not

abrogate the sovereign immunity of the state in enacting 42 U.S.C. § 1983.            See

Quern v. Jordan , 440 U.S. 332, 345 (1979). Defendants, in their official




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capacities, are therefore entitled to Eleventh Amendment immunity from

Derrick’s claims.

                                          B.

       Next, we address Derrick’s claims against defendants in their individual

capacities. In response to these claims, defendants raised the defense of qualified

immunity. Qualified immunity protects government officials from individual

liability under 42 U.S.C. § 1983 unless their conduct violates “clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). The threshold question

is, however: do the facts alleged show that the officer’s conduct violated a

constitutional right?   See Saucier v. Katz , 533 U.S. 194, 201 (2001). Because the

district court found that defendants did not violate any of Derrick’s constitutional

rights, it granted summary judgment in favor of defendants on the merits without

completing the qualified-immunity analysis. We agree that summary judgment on

the merits is appropriate. We address each of the constitutional claims separately

below.

       First Amendment Claim

       Derrick claims that his First Amendment rights were violated when he was

discriminated against and persecuted because of his religious beliefs. Although a

prisoner retains the First Amendment right to religious freedom while


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incarcerated, prison officials may place certain restrictions on the exercise of that

right in order to advance “valid penological objectives – including deterrence of

crime, rehabilitation of prisoners, and institutional security.”      O’Lone v. Estate of

Shabazz , 482 U.S. 342, 348 (1987). “[C]ourts are not to substitute their judgment

on matters of institutional administration for the determinations made by prison

officials, even when First Amendment claims have been made.”             Kikumura v.

Hurley , 242 F.3d 950, 956 (10th Cir. 2001).

       In determining the constitutionality of restrictions on the exercise of

religion, the Court must balance four factors: (1) the existence of a rational

connection between the prison restriction and a legitimate governmental interest

advanced as its justification; (2) the presence of alternatives for inmates to

exercise the right; (3) the effect that elimination of the restriction would have on

guards, other prisoners, and prison resources; and (4) the existence of alternatives

for prison officials without restricting inmates’ rights to religious expression.      See

Makin v. Colo. Dep’t of Corr. , 183 F.3d 1205, 1209 (10th Cir. 1999).

       Defendants have shown that there is a rational connection between placing

Derrick in segregation and a legitimate governmental justification. Derrick

presided over an unauthorized gathering of approximately thirty-five inmates in

which correctional officers observed the inmates raising their arms to salute “like

that of the German Nazi salute,” and confiscated materials that included “14


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Codes of the Aryan Ethic.” R., Doc. 20, Attachment C at 5, 7. In response to

Derrick’s grievance, Defendant Jordan explained that Derrick was placed in

segregation because of his involvement in the unauthorized gathering, and

because the material confiscated showed an “Aryan Format,” making Derrick’s

“continued presence in the general populations . . . a threat to the security of this

institution.”   Id., Attachment G at 8.

       Despite Derrick’s placement in segregation, Derrick had an alternative

means to exercise his religious rights. Oklahoma Department of Corrections

policy provides that “those on administrative segregation . . . will have access to

programs and services which include, but are not limited to . . . [s]piritual and

religious guidance provided by the chaplain or religious volunteer.” R., Doc. 20,

Attachment F at 8. In addition, in Defendant Jordan’s response to Derrick’s

grievance, she advised him that he could request religious services from the

chaplain while in segregation.    Id. , Attachment G at 8.

       Finally, defendants have shown that allowing Derrick to remain in the

general population after he led a large number of inmates in a gathering with an

Aryan format would have a detrimental effect on other prisoners, and would

create a threat to prison security, which would have a detrimental effect on prison

resources. Although Derrick claims that he is not a member of an Aryan gang, it

is undisputed that his religion has characteristics traditionally attributed to Aryan


                                           -8-
gang members, including the use of the swastika and the “open hand ‘salute’ in

prayer.” R., Doc. 22, Attachment titled “Standard Orders of Worship & Articles

of Faith” at 9. Because Derrick failed to come forward with any evidence to

refute defendants’ showing that the restrictions placed on Derrick were

“reasonably related to legitimate penological concerns,” he cannot establish that

defendants violated his First Amendment rights.    See O’Lone , 482 U.S. at 349.

      Eighth Amendment Claim

      Derrick claimed that defendants violated his Eighth Amendment rights

because Defendants Ward and Jordan were “deliberately indifferent to the

protection of Plaintiff’s Constitutional Rights of the 1st, 8th, and 14th amendment

rights of [the] United States Constitution when [they were] put on notice of the

violations and [they] did nothing to correct them.” R., Doc. 2 at 6. Derrick

alleged also that Defendant Coffman violated his Eighth Amendment rights “by

not allowing him to practice his religious beliefs free from persecution by the

State.” Id. at 7. An inmate’s Eighth Amendment rights may be violated if a

prison official demonstrates a deliberate indifference to a substantial risk of

serious harm to the inmate.   See Benefield v. McDowall , 241 F.3d 1267, 1270-71

(10th Cir. 2001). In order to establish an Eighth Amendment violation, Derrick

must show: (1) “that he is incarcerated under conditions posing a substantial risk

of serious harm,” and (2) “that the prison official was deliberately indifferent to


                                          -9-
his safety.” Id. at 1271 (quotations omitted). “Only those deprivations denying

the minimal civilized measure of life’s necessities . . . are sufficiently grave to

form the basis of an Eighth Amendment violation.”      Ledbetter v. City of Topeka,

Kan. , 318 F.3d 1183, 1188 (10th Cir. 2003) (quotation and alteration omitted).

Because Derrick failed to demonstrate that defendants denied him the minimal

necessities of civilized life, summary judgment on his Eighth Amendment claim is

appropriate.

      Fourteenth Amendment Claim

      Derrick alleges that defendants violated his right to equal protection under

the Fourteenth Amendment when Defendant Coffman placed him in

administrative segregation and the other defendants failed to protect Derrick from

discrimination and persecution by allowing him to be placed in administrative

segregation. To sustain a claim under the Equal Protection Clause, Derrick must

provide evidence that he was treated differently from others who are similarly

situated to him, and that the acts forming the basis of the claim were motivated by

a discriminatory purpose.   See Marshall v. Columbia Lea Reg’l Hosp.     , 345 F.3d

1157, 1179 (10th Cir. 2003). Derrick has failed to present any evidence that he

was treated differently from others who are similarly situated and he has failed to

show that the defendants’ acts were motivated by a discriminatory purpose, rather

than the defendants’ stated purpose of placing Derrick in segregation to prevent a


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prison security risk. Summary judgment on Derrick’s Fourteenth Amendment

claim is appropriate.

                                          C.

      The district court determined also that Burrell and Lightle were not proper

defendants. Although it is not clear from Derrick’s pro se brief whether he is

challenging this ruling, we affirm the district court’s determination that Burrell

and Lightle were not proper defendants. Burrell and Lightle were served with the

complaint, but were not named in the caption of the complaint. “[A] party not

properly named in the caption of a complaint may still be properly before the

court if the allegations in the body of the complaint make it plain the party is

intended as a defendant.”   Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir.

1996). Lightle is nowhere mentioned in the body of the complaint. Burrell is

mentioned twice, but only to explain that he is the chaplain who gave Derrick

permission to meet in the chapel and that he is Derrick’s religious sponsor. There

are no allegations that Burrell committed any violations and there is no claim for

relief against him. We affirm the district court’s decision that Defendants Ward,

Jordan and Coffman are the only defendants properly before the court.




                                         -11-
      Derrick’s motion to pay the filing fee in partial payments is granted.

Derrick is reminded that he is obligated to continue making partial payments until

the entire fee has been paid. The judgment of the district court is AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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