                   UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT



 JACOB IND; JEFFREY PFLEGER,

              Plaintiffs - Appellants,

 v.                                                     No. 01-1338
                                                     D.C. No. 00-B-428
 RICK WRIGHT; DAN FOSTER;                              (D. Colorado)
 LARRY REID; STEVE SHUH; LEE
 HENDRIX; COLORADO
 DEPARTMENT OF CORRECTIONS,

              Defendants - Appellees.


                                      ORDER
                              Filed November 25, 2002


Before KELLY , BRISCOE , and LUCERO , Circuit Judges.


      This matter is before us on plaintiffs’ petition for rehearing and suggestion

for rehearing en banc. For the following reasons, we grant the rehearing petition

in part and deny in part.

      Plaintiffs brought this civil rights action against the Colorado Department

of Corrections (DOC) and its employees, alleging that the DOC’s policies and

practices infringed on their First Amendment rights. The district court granted

summary judgment in favor of defendants on all claims. As part of its judgment,
the district court dismissed the claims against defendant Shuh for lack of personal

participation.

       In our order and judgment, issued August 14, 2002, we affirmed the district

court’s judgment in part and reversed in part. Because the district court failed to

consider plaintiffs’ due process claim regarding the reading materials screening

process, we remanded this claim for further action. In their petition for rehearing,

plaintiffs argue that DOC employee Shuh should be reinstated as a defendant

regarding the due process claim because he was a member of the prison’s reading

committee. As the record contains evidence to support a finding that Shuh

personally participated in the reading materials screening process, we grant

plaintiffs’ rehearing petition in part, and order that Shuh be reinstated as a

defendant with regard to the due process claim   only . In all other respects we deny

the rehearing petition. A copy of the amended order and judgment is attached to

this order.

      Plaintiffs’ suggestion for rehearing en banc has been transmitted to all the

judges of the court in regular active service in accordance with Rule 35(b) of the

Federal Rules of Appellate Procedure. No member of the hearing panel and no

judge in regular active service on the court having requested that the court be




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polled on rehearing en banc, Rule 35, Federal Rules of Appellate Procedure, the

suggestion for rehearing en banc is denied. The mandate shall issue forthwith.




                                              Entered for the Court
                                              PATRICK FISHER, Clerk

                                              By: /s/ Belinda Begley
                                                     Deputy Clerk




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                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            NOV 25 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    JACOB IND; JEFFREY PFLEGER,

                  Plaintiffs - Appellants,

    v.                                                    No. 01-1338
                                                       D.C. No. 00-B-428
    RICK WRIGHT; DAN FOSTER;                             (D. Colorado)
    LARRY REID; STEVE SHUH; LEE
    HENDRIX; COLORADO
    DEPARTMENT OF CORRECTIONS,

                  Defendants - Appellees.


                        AMENDED ORDER AND JUDGMENT               *




Before KELLY , BRISCOE , and LUCERO , Circuit Judges.




         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.
      Plaintiffs Jacob Ind and Jeffrey Pfleger appeal the district court’s grant of

summary judgment in favor of defendants on their civil rights lawsuit brought

pursuant to 42 U.S.C. § 1983, and several other federal statutes. Because

plaintiffs have not shown the existence of a genuine issue of material fact or that

the district court committed legal error regarding: (1) the Eleventh Amendment

dismissal of claims against defendants in their official capacities; (2) the

dismissal of claims against certain defendants for lack of personal participation,

except for the dismissal of plaintiffs’ due process claim against defendant Shuh;

(3) the constitutionality of Colorado Department of Corrections (DOC)

administrative regulation 300-26, on its face and as applied, as a restriction on

plaintiffs’ First Amendment rights; and (4) the failure to provide separate taped

religious programming, we affirm those portions of the district court’s judgment.

Because the district court failed to address plaintiffs’ arguments regarding:

(1) the classification of their religious group as a “Security Threat Group”; (2) the

constitutionality of DOC administrative regulation 800-1 as applied to members

of the Christian Identity Faith; and (3) the adequacy of the due process

protections surrounding the censorship process, we remand this case for

determination of those issues. Finally, because the district court used an incorrect

analysis to evaluate plaintiffs’ claim to Passover-related food and a communion




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packet, we reverse that portion of the judgment and remand for further

proceedings.

       Plaintiffs are members of the “Christian Identity Faith” who are currently

incarcerated at the Colorado State Penitentiary. The Christian Identity Faith rests

upon White Supremacy principles, teaching that all other races and religions are

inferior. Plaintiffs brought this action against the DOC and its employees,

alleging that DOC policies and practices deprived them of the right to practice

their religion and discriminated against their religion.

       In particular, plaintiffs complained about DOC administrative regulation

300-26, which describes the types of reading material an inmate may receive or

possess consistent with the DOC’s goals of maintaining security, good order, and

public safety, as well as its goal of encouraging rehabilitation.   See R. I, doc. 23,

Ex. A. Pursuant to this regulation, the DOC prohibits materials that an objective

person could reasonably believe “encourage or endorse: violence or disorder; . . .

hatred or contempt of other persons; [or] vengeance against other persons.”      Id.

at 2. The regulation specifically identifies as excludable “[a]ny publication

advocating hatred or contempt of other persons,” and “[a]ny . . . material

produced or distributed by Security Threat Groups (STGs) or . . . material

advocating or depicting association or membership in a STG which is contrary to




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the security interests of the facility.”    Id. Many of plaintiffs’ Christian Identity

reading materials have been prohibited under these standards.

       Plaintiffs alleged that DOC administrative regulation 300-26 was

unconstitutionally overbroad and that it had been applied in a discriminatory

fashion. They also alleged that the regulation, both on its face and as applied,

violated due process based on inadequate notice, no time limit for making the

censorship decisions, and no opportunity to appeal the decisions.

       Plaintiffs also complained that DOC administrative regulation 800-1 used

an unconstitutional standard to exclude them from the category of a “legitimate”

faith group and that their constitutional rights were violated by the prison’s

refusal to provide them with a Passover meal, a communion packet, and

leaven-free foods during the Passover week. Finally, plaintiffs alleged that they

were constitutionally entitled to Christian Identity taped religious programming.

       The magistrate judge to whom the case was assigned recommended that

summary judgment be granted in favor of defendants based, in part, on the district

court’s decision in the related action of     Rooks v. Zavares , Civil Action

No. 99-B-631 (D. Colo. Jan. 25, 2001).        See R. I, doc. 50, Ex. 2. The

recommendation was based on the representations by both plaintiffs and

defendants that the claims in     Rooks were essentially identical to those raised in

this lawsuit. The magistrate judge’s order recommended the following: (1) that


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plaintiffs’ claims for monetary relief be dismissed against defendants in their

official capacities based on Eleventh Amendment sovereign immunity; (2) that the

First Amendment claims regarding administrative regulation 300-26 brought

against defendants Hendricks and Shuh be dismissed for lack of personal

participation; (3) that the claims relating to Passover food brought against

defendants Foster, Shuh, and Wright be dismissed for lack of personal

participation; (4) that the claims relating to the failure to provide separate

religious programming brought against defendants Foster, Wright, Hendrix, and

Shuh be dismissed for lack of personal participation; (5) that summary judgment

be granted in favor of the remaining defendants on plaintiffs’ claim that

administrative regulation 300-26 is unconstitutional on its face and as applied;

(6) that summary judgment be granted in favor of defendants on plaintiffs’ claim

of entitlement to Passover food and a communion packet because plaintiffs had

not shown that observing Passover in this form was a tenet of their religion; and

(7) that summary judgment be granted in favor of defendants on the claim for

separate religious programming based on the absence of evidence that defendants

have refused to allow such programming. After       de novo review, the district court

adopted the magistrate judge’s recommendations.

       We review the grant or denial of summary judgment      de novo , applying the

same legal standard used by the district court.    McKnight v. Kimberly Clark


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Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). 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 , 149 F.3d at 1128 (quotation omitted).

       We examine first the constitutionality of DOC administrative regulation

300-26, using the standards adopted by the Supreme Court in           Thornburgh v.

Abbott , 490 U.S. 401 (1989). There, the Court held that regulations governing the

receipt of reading materials by inmates must be analyzed under a reasonableness

standard, and that such regulations are valid if they are reasonably related to a

legitimate penological interest.   Id. at 413. These determinations should be made

using the four-prong inquiry established in         Turner v. Safley , 482 U.S. 78, 89-91

(1987). Thornburgh , 490 U.S. at 413. Under this standard, courts must consider

(1) whether there is a rational connection between the prison policy and a

legitimate governmental interest; (2) whether there are alternative means for

inmates to exercise their constitutional rights; (3) the effect that accommodating

the exercise of the disputed rights would have on guards, other inmates, and




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prison resources; and (4) whether there are ready, easy-to-implement alternatives

that would accommodate the inmates’ rights.

       In examining the particular prison regulation before it, the         Thornburgh

Court first held that the interest in protecting prison security is legitimate “beyond

question.” 490 U.S. at 415. The Court then held that “[w[here, as here, prison

administrators draw distinctions between publications solely on the basis of their

potential implications for prison security, the regulations are neutral.”       Id. at

415-16 (quotation omitted). The Court concluded that regulations allowing prison

authorities discretion to determine that particular reading material creates an

intolerable risk of disorder under the conditions of their particular institution are

rationally related to the legitimate interest of maintaining prison security.       Id. at

416-17. Because this analysis applies with equal validity to DOC administrative

regulation 300-26, we conclude that the regulation is reasonably related to

legitimate penological objectives.

       Regarding the second, third, and fourth prongs of the          Turner analysis, we

agree with the district court that plaintiffs have not raised triable issues of fact.

The Supreme Court itself, in     Thornburgh , held that so long as prison regulations

permit a broad range of publications to be sent, received, and read, prison inmates

have adequate alternative means for exercising their religion.          Id. at 418. We note

that plaintiffs have not alleged they have been denied the main texts of their


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religion, including the King James Bible, Strong’s Exhaustive Concordance, and

Young’s Analytical Concordance.       See R. I, doc.23, ex. C.

       Further, to allow plaintiffs to receive and possess materials that espouse

hatred or contempt of others would negatively impact other prisoners, guards who

must prevent any resulting animosity, and prison resources aimed at preventing

violence. In light of the extreme racial tensions and violence prevalent in prisons,

such provocative materials are likely to increase the stress on prisoners, guards,

and resources alike. In addition, plaintiffs have not shown that there are easy

alternatives to prohibiting material that expresses hatred or contempt of others.

Although they argue that the standard should be limited to materials that

“advocate[] violence or are so inflammatory as to reasonably be believed to incite

violence,” Aplts’ Br. at 3H, the Supreme Court specifically stated in   Thornburgh

that prison administrators are not required to limit their exclusions to materials

which are “likely” to lead to violence. 490 U.S. at 417.

       Plaintiffs also have not shown that the district court erred in holding that

their reading materials were properly excluded under the regulation. We have

independently reviewed all of the exhibits submitted with the pleadings and those

submitted under seal. Based on our review, we conclude that the prohibited

materials could reasonably be regarded as “publication[s] advocating hatred or




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contempt of other persons,” or “encourag[ing] or endors[ing] . . . violence or

disorder.” R. I, doc. 23, Ex. A at 2.

      Next, plaintiffs challenge the district court’s grant of summary judgment in

favor of defendants on their claim that they are entitled to special foods and a

communion packet to enable them to celebrate Passover. They argue that their

affidavits and doctrinal materials establish that at least a portion of Christian

Identity practitioners believe that consuming Passover foods and a communion

packet is a necessary part of their religion. The district court held that plaintiffs

had not raised a triable issue regarding their entitlement to such accommodations

because they did not show that such an observation of Passover was a major tenet

of the Christian Identity Faith. Under our case law, however, this is not the

proper inquiry.

      In LaFevers v. Saffle , 936 F.2d 1117, 1119 (10th Cir. 1991), we held that a

prisoner’s belief in religious dietary practices is constitutionally protected if the

belief is “genuine and sincere,” even if such dietary practices are not doctrinally

“required” by the prisoner’s religion. Once a prisoner’s sincerity has been

established, he is entitled to invoke First Amendment protections, and the court

must engage in the reasonableness inquiry established by     Turner v. Safley .

LaFevers , 936 F.2d at 1119-20. Because here the district court did not determine

whether plaintiffs raised a triable issue regarding the sincerity of their beliefs as


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to the observance of Passover, we must reverse the summary judgment in favor of

defendants and remand this claim for further proceedings.

       Plaintiffs’ complaint also challenged the DOC’s determination that the

Christian Identity Faith is a “STG” whose materials may be prohibited; challenged

the standards set forth in DOC administrative regulation 800-1 defining a

“legitimate” faith group; and raised a claim that the procedure for censoring

reading material violated due process because of inadequate notice, unrestricted

time period for decision, and the absence of an opportunity to be heard.       See R. I,

doc. 6 at 3-3E and 4-4A. Neither the magistrate judge nor the district court

addressed these claims, which plaintiffs have preserved in their objections to the

magistrate judge’s decision. Therefore, the case must be remanded for further

proceedings on these issues as well. Further, DOC employee Shuh must be

reinstated as a defendant with regard to the due process claim     only , as there is

evidence to support a finding that he participated in the reading materials

screening process.




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      Plaintiffs’ motion to supplement the record is granted. The judgment is

AFFIRMED in part and REVERSED in part, and the case is remanded for further

proceedings. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Circuit Judge




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