                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          June 23, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JOHN HEARD,

      Plaintiff - Appellant,

v.                                                         No. 16-2198
                                               (D.C. No. 2:13-CV-01236-KG-WPL)
C. CHAVEZ, Mailroom Staff, Counts 2-9;                      (D. N.M.)
FNU BHAKTA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
                 _________________________________

      John Heard, a state prisoner proceeding pro se, appeals the district court’s

dismissal of his claims brought under 42 U.S.C. § 1983 against two employees of the

Guadalupe County Correctional Facility (“GCCF”) who prevented him from

receiving several publications that were mailed to him. We exercise jurisdiction

under 28 U.S.C. § 1291 and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. Background

      Mr. Heard filed this action against several GCCF employees, alleging that they

violated his First and Fourteenth Amendment rights by intercepting and rejecting

publications that were mailed to him and by denying him due process related to those

rejections. He sought injunctive relief and damages. The district court initially

dismissed all the claims except those against Defendant Chavez, the mailroom

supervisor, in her individual capacity (claims 2 through 8). It later reinstated two

claims against Defendant Bhakta, the property manager, in her individual capacity

(claims 1 and 6).

      Mr. Heard prevailed on claim 1, which is not part of this appeal. The district

court granted summary judgment in his favor based on its determination that

Defendant Bhakta violated Mr. Heard’s due process rights when she rejected a book

solely because it was not from an approved vendor. It awarded Mr. Heard damages

of $75.00 on this claim.

      Claims 2 through 4 are based on the undisputed assertion that Defendant

Chavez rejected three publications that were mailed to Mr. Heard and failed to

provide him with rejection slips. Mr. Heard contends that this violated his

Fourteenth Amendment rights. He admits, however, that he received actual notice

from the vendors that the publications had been rejected. The district court

concluded that Mr. Heard’s receipt of actual notice of the rejections precluded any

basis for establishing a procedural due process violation, and therefore it granted

summary judgment on these claims.

                                           2
       Claims 5 and 6 involve the rejection of two other publications (a magazine and

a book) pursuant to GCCF’s policy on obscene materials.1 Mr. Heard contends that

the rejection of these publications violated his First Amendment rights. The district

court stated that Mr. Heard did not have a right to receive sexually explicit material

in prison, citing Jones v. Salt Lake County, 503 F.3d 1147, 1155-56 (10th Cir. 2007).

The court weighed the factors set forth in Turner v. Safley, 482 U.S. 78 (1987), and

concluded that GCCF’s policy of denying prisoners access to obscene materials is not

unconstitutional.

       Claim 6 is based on the additional assertion that Mr. Heard’s rights under the

Equal Protection Clause were violated because another prisoner was allowed to

possess the same book that was rejected when it was sent to Mr. Heard. Without

objection by Mr. Heard, the district court dismissed this claim against Defendant

Chavez because the property office, not the mailroom, handles incoming books at

GCCF. As for the remaining equal protection claim against Defendant Bhakta, the

district court concluded that even if Mr. Heard could prove that he was treated

differently from other similarly situated individuals, he could not prove that there

was no rational basis for the discrimination. The book was rejected in accordance

with GCCF’s policy on obscene materials “because it contained inappropriate

material including photographs of females partially or totally nude and/or posed in



       1
        Pursuant to GCCF’s correspondence regulations, incoming mail will be
rejected if it “is obscene in that it appeals primarily to the prurient interests or is
patently offensive.” R., Vol. 2 at 131.
                                             3
sexually explicit positions,” R., Vol. 1 at 83, and the court had already determined

that the policy is not unconstitutional.

      Claims 7 and 8 are based on the rejections of two additional publications. The

magistrate judge recommended dismissing these claims because Mr. Heard failed to

exhaust his administrative remedies, and therefore the claims were barred under the

Prison Litigation Reform Act. Mr. Heard contends that he was prevented from

exhausting his administrative remedies because after he filed informal complaints, he

“was transferred to another facility while waiting for an answer to both grievances.”

R., Vol. 1 at 129. The magistrate judge found that even if Mr. Heard’s informal

complaints were not resolved, the deadlines for filing formal grievances on both

rejections had expired well before his transfer. Mr. Heard did not dispute these

factual findings of the magistrate judge. Instead, he objected on the ground that he

had in fact filed formal grievances but received no response. The district court

overruled the objection because Mr. Heard did not raise the issue before the

magistrate judge, see ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1185

(10th Cir. 2011), dismissing claims 7 and 8 without prejudice.

      Before this court, Mr. Heard argues that the district court erred by granting

summary judgment in favor of Defendants Chavez and Bhakta.

II. Analysis

      We review de novo the grant of summary judgment, applying the same

standard as the district court. Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012).

“The court shall grant summary judgment if the movant shows that there is no

                                           4
genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Ribeau, 681 F.3d at 1194 (internal quotation marks omitted). We

liberally construe Mr. Heard’s pro se pleadings, see Childs v. Miller, 713 F.3d 1262,

1264 (10th Cir. 2013), but we will not supply additional factual allegations or

construct legal theories on his behalf, see Smith v. United States, 561 F.3d 1090,

1096 (10th Cir. 2009).

A. Claims 2 through 4

      Mr. Heard contends that summary judgment on his procedural due process

claims was improper because Defendant Chavez was required to notify him when the

GCCF mailroom rejected each of the publications at issue. He received actual notice

of the rejections from the vendors, however, so he cannot establish a due process

violation.

      “The core of due process is the right to notice and a meaningful opportunity to

be heard.” Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir. 2012) (internal

quotation marks omitted). “To assess whether an individual was denied procedural

due process, courts must engage in a two-step inquiry: (1) did the individual possess

a protected interest such that the due process protections were applicable; and, if so,

then (2) was the individual afforded an appropriate level of process.” Riggins v.

Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (internal quotation marks omitted).

We assume for the purpose of this appeal that Mr. Heard had a protected interest in

                                           5
receiving the publications and conclude that he was not denied an appropriate level

of process. First, he received actual notice of the rejections, and he cites no

authority, nor are we aware of any, for the proposition that the notice component of a

due process claim can be violated even when actual notice is accomplished.

Moreover, having received notice, Mr. Heard has not shown that GCCF’s grievance

procedures were inadequate to provide a meaningful opportunity to be heard. Even if

GCCF regulations entitle him to written rejection slips, he has not shown that actual

notice is insufficient to satisfy the requirements of due process. See Hulen v. Yates,

322 F.3d 1229, 1247 (10th Cir. 2003) (“[O]nce [a] property right is established, it is

purely a matter of federal constitutional law whether the procedure afforded was

adequate.”). Because Mr. Heard has failed to allege circumstances that constitute a

procedural due process violation, summary judgment was properly granted in favor

of Defendant Chavez on these claims.

B. Claims 5 and 6

      Mr. Heard also argues that GCCF violated his First Amendment rights by

rejecting publications that do not meet the legal definition of obscenity. We are not

persuaded.

      “Inmates have a First Amendment right to receive information while in prison

to the extent the right is not inconsistent with prisoner status or the legitimate

penological objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426

(10th Cir. 2004). The constitutionality of GCCF’s policy regarding sexually explicit

materials hinges on the four-factor test in Turner, which requires analyzing

                                            6
“(1) whether a valid and rational connection exists between the regulation and the

asserted legitimate governmental interest, (2) whether alternative means of exercising

the constitutional right remain available to inmates, (3) any effect accommodating the

right would have on guards and inmates, and (4) the absence of ready alternatives.”

Jacklovich, 392 F.3d at 426 (citing Turner, 482 U.S. at 89-90). In Jones, 503 F.3d at

1156, we upheld a prison ban on sexually explicit material similar to GCCF’s policy

based on these factors, and we conclude that GCCF’s policy passes constitutional

muster.

      Mr. Heard seems to argue that even if GCCF’s policy is not unconstitutional,

the publications at issue do not fit the legal definition of obscenity, and therefore

GCCF’s rejection of them violated his rights. But “prisoners’ rights may be

restricted in ways that would raise grave First Amendment concerns outside the

prison context.” Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (internal

quotation marks omitted). Prison regulations restricting First Amendment rights “are

permissible if they are reasonably related to legitimate penological interests and are

not an exaggerated response to those concerns.” Wardell v. Duncan, 470 F.3d 954,

959-60 (10th Cir. 2006) (internal quotation marks omitted). Mr. Heard has failed to

show that the rejections violated his First Amendment rights in the prison context.

His other arguments do not directly address the reasonableness of GCCF’s policy

based on the Turner factors. For example, it is irrelevant whether a rejected

publication received an “adult” rating from the vendor, was accepted at a different

facility, or was accepted previously at the same facility.

                                            7
       As for Mr. Heard’s equal protection claim based on a “class of one” theory, he

needed to allege that he was “intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.” A.M. ex

rel. F.M. v. Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016) (internal quotation marks

omitted). In class-of-one cases, “it is exceedingly difficult to demonstrate that any

difference in treatment is not attributable to a quirk of the plaintiff or even to the

fallibility of administrators whose inconsistency is as random as it is inevitable.”

Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1213 (10th Cir. 2006).

The allegation that GCCF’s policy caused a book to be rejected in Mr. Heard’s case

while another prisoner was allowed to receive it does not establish that the policy is

without a rational basis. We note the absence of any allegation that Mr. Heard is the

only prisoner who was prevented from receiving this book. And he alleges in only

conclusory terms that he is similarly situated to the other prisoner who was allowed

to receive the book. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216

(10th Cir. 2011) (“[A] plaintiff [asserting a class-of-one claim] must first establish

that others, similarly situated in every material respect were treated differently.”

(internal quotation marks omitted)). Indeed, he alleges only in conclusory terms that

the rejected book was identical to the one the other prisoner received. For these

reasons, Mr. Heard has not made the required showing to support an equal protection

violation.




                                             8
C. Claims 7 and 8

       Mr. Heard also argues that the district court erred by finding that he failed to

exhaust his administrative remedies with respect to claims 7 and 8. However, he

does not challenge the magistrate judge’s timeline regarding the filing of his informal

complaints and his transfer. “An inmate who begins the grievance process but does

not complete it is barred from pursuing a § 1983 claim.” Little v. Jones, 607 F.3d

1245, 1249 (10th Cir. 2010) (internal quotation marks omitted). Nor does he cite any

evidence to support his contention that he filed formal grievances on these claims.

Consequently, his argument regarding exhaustion of administrative remedies also

fails. See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this

circuit, theories raised for the first time in objections to the magistrate judge’s report

are deemed waived.”).

III. Conclusion

       The judgment of the district court is affirmed. Mr. Heard’s motion to proceed

on appeal without prepayment of costs and fees is granted, and he is reminded of his

obligation to continue making partial payments until the filing and docketing fees are

paid in full.


                                             Entered for the Court


                                             Timothy M. Tymkovich
                                             Chief Judge




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