                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS              March 28, 2011

                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court


KEITH FRAZIER,

      Plaintiff - Appellant,

v.                                                      No. 10-1133
                                           (D.C. No. 1:07-CV-02131-CMA-KMT)
JOE ORTIZ, Executive Director, CDOC;                     (D. Colo.)
COLORADO DEPARTMENT OF
CORRECTIONS (“DCOD”); LIMON
CORRECTIONAL FACILITY (“LCF”);
AL ESTEP, Warden, LCF; LOU
ARCHULETA, Warden, LCF; DELAYNE
TORNOWSKI, Associate Warden, LCF;
ANTHONY A. DECESARO, Step III
Grievance Officer, CDOC; JOHN DOE #1,
Law Librarian, LCF; HIGGENBOTHEM,
Law Librarian, LCF; A. COSNER, Law
Librarian, LCF; OFFICE OF
CORRECTIONS/Legal Services, CDOC;
ANTHONY, Case manager, LCF; P.
GABRIEL (#5165), Mailroom Employee,
LCT; C. JACQUES, Mailroom Employee,
LCF; SANDI PATRICK-HENDRIX,
Mailroom Employee, LCF; MAILROOM,
LCF; CATHIE HOLST; Central Reading
Committee Chair, CDOC; OFFICE OF
CORRECTIONAL LEGAL SERVICES;
CENTRAL READING COMMITTEE
CHAIR, CDOC; ACCOUNTING
DEPARTMENT/BANKING SERVICE,
LCF; TREVOR WILLIAMS, Review
Committee Chair, Custody/Control
Manager, LCF; TONY OUTEN,
Custody/Control Manager, LCF; MENTAL
HEALTH/SEX OFFENDER
TREATMENT PROGRAM STAFF, LCF;
JOHN DOE #2, Chief of Clinical Services,
LCF; BILL RUSHER, Reading Committee
Chair, LCF; and TOM O’BRIEN, Step II
Grievance Officer, LCF,

       Defendants - Appellees.


                              ORDER AND JUDGMENT*



Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Keith Frazier, a Colorado prisoner proceeding pro se, filed a 42 U.S.C. § 1983

civil rights action against numerous prison officials and employees of the Limon

Correctional Facility (LCF). Frazier claimed he was wrongfully denied access to

subscription music publications while at LCF in violation of his rights under the First

(free speech) and Fourteenth (equal protection) Amendments. The district court entered

summary judgment in favor of the defendants, concluding they were entitled to qualified

immunity. It also denied Frazier’s pending motions, including a motion to amend his

complaint. We affirm.

                                 FACTUAL BACKGROUND

       Several years prior to his current burglary convictions, Frazier pled guilty to two

       *
        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). We have decided this case on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.


                                            -2-
misdemeanor counts of indecent exposure, one to a person under fifteen years old. He is

a registered sex offender. Currently, he is serving a seventeen-year sentence for two

second-degree burglary convictions and two counts of theft under $100.00. The

presentence investigation report detailed the circumstances of his burglaries. The victims

were young women he encountered while employed as a food delivery person. One

victim was a teenage lifeguard who he often saw in a bathing suit while delivering food

to the pool where she was employed. He stalked his victims, ultimately entering their

homes and removing from their bedrooms photographs, underwear and, in one case, a

swimsuit. A search of Frazier’s personal items revealed a box of women’s underwear

and bras, numerous Victoria’s Secret catalogs belonging to various women, newspaper

clippings depicting young women modeling clothes and articles on sexually motivated

crimes. While incarcerated prior to sentencing, Frazier was disciplined for hiding

newspaper and magazine clippings of young females in swimsuits and underwear ads in

his cell. The Colorado Department of Corrections (CDOC) administratively classified

Frazier as an inmate sex offender.

       Administrative Regulation 300-26 (A/R 300-26) governs the reading materials

provided to CDOC inmates. Generally the CDOC seeks to “respect and respond to the

reading needs and preferences of offenders . . . .” (R. Vol. I at 234.) However, reading

materials may be restricted if, among other things, the material “is determined to be

contrary to . . . the individualized rehabilitative goals set forth in writing for a specific

offender by the DOC.” (Id. at 235.) In addition, Mental Health or Sex Offender

Treatment Program staff may set more stringent individualized rehabilitative standards

                                              -3-
for a specific offender. Due to his criminal history, Frazier was given the following

written individualized restrictions:

       Inmate will not have in his possession any materials that are deemed erotic,
       sexually oriented, or sexually stimulating[;]

       Inmate has a history of sexual assault – indecent exposure against a female
       minor, possession of materials depicting sexually stimulating females are
       contrary to rehabilitative goals[;]

       Inmate’s misdemeanor case involved a juvenile and pictures of juveniles
       should not be possessed[;]

       Inmate should not possess pictures of young women and girls in underwear
       and swimsuits, or pictures of these clothing items.

(Id. at 233.)

       The procedure for screening an inmate’s reading begins in the mailroom, where a

member of the staff makes an initial assessment of the incoming materials. If there is a

question regarding their appropriateness, the staff refers them to the LCF Reading

Committee for review. If there are less than five pages of restricted material within a

publication, the offending material is removed and the publication is given to the inmate.

If there are five pages or more, the publication is withheld in its entirety. An inmate may

appeal this decision to the CDOC Central Reading Committee.

       Frazier subscribes to several music publications including Rolling Stone, Maxim,

Blender and Spin. From May through July 2006, the delivery of some of the magazines

were delayed and others were withheld entirely. Frazier unsuccessfully sought review of

each of the LCF Reading Committee determinations by the Administrative Head and the

CDOC Central Reading Committee. Frazier then filed his § 1983 complaint raising

several issues. The only claims on appeal, however, relate to the alleged violations of his

                                           -4-
First and Fourteenth Amendment rights based on the restriction of his reading material.

                             PROCEDURAL BACKGROUND

       After the dismissal of all but two of Frazier’s claims, a scheduling order set a

November 10, 2008 deadline to file an amended complaint and a March 27, 2009

deadline to conclude discovery. The defendants did not respond to Frazier’s requests for

discovery. Instead, they filed a motion for summary judgment on May 21, 2009. On

June 29, 2009, armed with the attachments to the defendants’ motion for summary

judgment, Frazier responded with a combined motion for summary judgment and

response to the defendants’ motion for summary judgment.

       On the same day, Frazier filed a request to amend his complaint to add previously

unknown defendants. The magistrate judge denied his motion to amend because he had

not explained why the new defendants were necessary, had not filed a complete amended

complaint with his motion, and the deadline for amending the complaint had passed more

than seven months earlier. Frazier filed an objection to the magistrate’s order and a

supplement to his motion for summary judgment.

       On July 16, 2009, well past the deadline to conclude discovery, the defendants

responded to Frazier’s discovery requests. On July 29, 2009, Frazier filed an additional

supplement to his motion for summary judgment based on alleged regulatory violations

in the process of withholding his publications and the disposal of his materials.

       On August 21, 2009, the magistrate judge recommended the defendants’ motion

for summary judgment be granted and Frazier’s cross-motion be denied. Frazier

objected. On December 22, 2009, he filed a second motion to amend his complaint and

                                            -5-
requested permission for an extension of time to do so. The magistrate once again

recommended his motion be denied and Frazier again objected. He submitted an

amended complaint on January 20, 2010, with a “redone” motion to amend. (Appellant’s

Opening Br. at 5.) The magistrate again recommended the motion be denied and Frazier

again objected.

       On March 10, 2010, the district court adopted the magistrate’s August 21, 2009

recommendation and granted the defendants’ motion for summary judgment and denied

Frazier’s cross-motion. It rejected Frazier’s Fourteenth Amendment equal protection

claim because he failed to identify any “similarly situated” inmate sex offenders who

were treated differently. The court then noted and approved the magistrate’s detailed

analysis under Turner v. Safley, 482 U.S. 78, 89 (1987), in reaching the conclusion that

A/R 300-26 was a valid exercise of the prison’s authority and the materials denied to

Frazier were appropriately restricted. As a result, Frazier failed to show the denial of a

constitutional right. In the alternative, the court concluded prison officials reasonably

relied on the regulation in restricting Frazier’s reading materials. Thus, the defendants

were entitled to qualified immunity. The court denied all remaining motions as moot.

                                        DISCUSSION

       The crux of the matter is whether Frazier established a violation of his clearly

established constitutional rights and whether the court erred in denying his motion to

amend his complaint to cure the deficiencies in his Fourteenth Amendment equal

protection claim. Generally, pleadings by pro se litigants are liberally construed and held

to a less stringent standard than formal pleadings drafted by lawyers. Hall v. Bellmon,

                                            -6-
935 F.2d 1106, 1110 (10th Cir. 1991). But we do not “assume the role of advocate for

the pro se litigant.” Id. Pro se status “does not relieve the plaintiff of the burden of

alleging sufficient facts on which a recognized legal claim could be based,” id., or excuse

a failure to follow the fundamental rules of civil and appellate procedure. See Ogden v.

San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).

A.     Motion to Amend

       Frazier claims the district court erred in denying him the opportunity to amend his

equal protection claim in January 2010. “We ordinarily review a denial of a motion to

amend a pleading for abuse of discretion.” Miller ex rel. S.M. v. Bd. of Educ. of

Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009). But we review the legal

basis for a finding of futility de novo. Id.

       The magistrate judge denied Frazier’s motion because Frazier failed to give an

adequate reason for his delay in filing a sufficient motion to amend. The information

Frazier allegedly relied upon in his amendment had been available since at least May 21,

2009, and the case was more than two years old. She also concluded an amendment

would cause undue delay because the Defendants’ motion for summary judgment was

pending. Further, the proposed amended complaint would not cure the deficiencies of

proof identified in the recommendation regarding Defendants’ summary judgment

motion.

       Frazier argues the denial of his motion to amend is an injustice for two reasons.

First, he tried to amend his complaint several times prior to January 2010, but the

magistrate judge was “completely unwilling to let [him] amend his pleading after the

                                               -7-
deadline.” (Appellant’s Opening Br. at 8.) According to Frazier, any delay was caused

by the defendants’ failure to provide timely discovery. Frazier ignores the fact that his

earlier attempts to amend did not comply with the court’s rules.

       Second, Frazier claims he should have been allowed to amend his complaint

because his “Fourteenth Amendment ‘equal protection of the laws’ and procedural ‘due

process’ claims1 literally depended upon him being allowed to amend his pleadings as

requested.” (Appellant’s Opening Br. at 8.) He complains the district court granted

summary judgment on his equal protection claim because he had not identified a

“similarly situated” inmate who was treated differently. See City of Cleburne, Tex. v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“The Equal Protection Clause of the

Fourteenth Amendment commands that no State shall deny to any person within its

jurisdiction the equal protection of the laws, which is essentially a direction that all

persons similarly situated should be treated alike.”) (quotations omitted).2

       Frazier argues his proposed amended “verified complaint” “cured” his original

pleading’s defect by alleging: “The plaintiff discovered in July of 2009, via the ‘Notice to


       1
        Frazier’s due process claims were dismissed by the district court in an order
dated September 16, 2008. Only his free speech and equal protection claims remained.
       2
         To the extent that Frazier is arguing a “class of one” equal protection claim, as
recognized by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000), a showing that similarly situated persons were treated differently “is especially
important in class-of-one cases . . . . [T]he multiplicity of relevant (nondiscriminatory)
variables requires plaintiff to provide compelling evidence of other similarly situated
persons who were in fact treated differently.” Bruner v. Baker, 506 F.3d 1021, 1029
(10th Cir. 2007) (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1213, 1215 (10th
Cir. 2004)).


                                             -8-
Publisher’ form he acquired, that he was the only one of the LCF’s approximately 800

inmates to have [Blender magazine] censored; as this was not done for ‘similarly

situated’ sex offender Martin . . ., for example, it demonstrates that his ‘unequal

treatment’ was the result of intentional and purposeful discrimination . . . .” (R. Vol. II at

13.) But on the next page Frazier claims only he and “Martin” were denied the August

issue of Rolling Stone magazine. Thus, assuming “Martin” was also restricted under an

individual rehabilitation plan, Frazier’s allegations establish only that the reading

committee was applying the individualized plans to both offenders. Moreover, Frazier

claims he received this information in July 2009, but he did not attempt to provide the

information prior to the magistrate judge’s August 21, 2009 recommendation on

summary judgment or at any time before January 2010.

       In sum, Frazier’s proposed final amended complaint adds length but not substance

to his claims. The magistrate judge did not abuse her discretion in denying Frazier’s

motion to amend made six months after he received the information he claims he needed

and over four months after the recommendation to grant defendants’ summary judgment

motion was pending before the district court. See Pallottino v. City of Rio Rancho, 31

F.3d 1023, 1027 (10th Cir. 1994) (holding that untimeliness in itself can be a sufficient

reason to deny leave to amend).

B.     Summary Judgment/Qualified Immunity

       Generally, we review the grant of summary judgment de novo, applying the same

legal standard as the district court under Rule 56(a) of the Federal Rules of Civil

Procedure. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

                                             -9-
Summary judgment is appropriate “if the Movant shows that there is not 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). However, review of summary judgment orders in the context of qualified

immunity is slightly different. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th

Cir. 2009). “Qualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009). An

assertion of qualified immunity at summary judgment shifts the burden to the plaintiff to

show: (1) the defendant violated a constitutional right and (2) the constitutional right was

clearly established. Thompson, 584 F.3d at 1312 (quotations omitted). We construe the

facts in the light most favorable to the plaintiff as the nonmoving party to determine

whether he has met his burden of establishing a clearly established constitutional

violation. Scott v. Harris, 550 U.S. 372, 378, 380 (2007). Even so, “because at summary

judgment we are beyond the pleading phase of the litigation, a plaintiff’s version of the

facts must find support in the record . . . .” Thomson, 584 F.3d at 1312.

       The First Amendment protects a prisoner’s right to receive mail. Thornburgh v.

Abbott, 490 U.S. 401, 407 (1989). Prison officials may regulate that right, however, as

long as the regulation is “‘reasonably related to legitimate penological interests.’” Id. at

409 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The Turner test requires a court

to weigh four factors: (1) whether there is a “valid, rational connection between the

prison regulation and the legitimate governmental interest put forward to justify it”; (2)

                                            - 10 -
“whether there are alternative means of exercising the right that remain open to prison

inmates”; (3) “the impact accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison resources generally”; and (4)

the “absence of ready alternatives” to the regulation. 482 U.S. at 89-90 (quotations

omitted). Courts must conduct this analysis giving “substantial deference” to prison

authorities. Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1991).

       In addition to the four-part test, Turner clearly establishes that “restrictive prison

regulations [including restrictions on First Amendment rights] are permissible if they are

reasonably related to legitimate penological interests and are not an exaggerated response

to such objectives.” Beard v. Banks, 548 U.S. 521, 528 (2006) (citation and quotations

omitted). Frazier argued A/R 300-26 was unconstitutionally vague on its face and, as-

applied to him, it was an exaggerated response to the prison officials’ legitimate

penological concerns.

       After a de novo review of the magistrate judge’s recommendation and Frazier’s

objections, the district court adopted the magistrate judge’s analysis of the Turner factors

as they relate to A/R 300-26. Frazier’s facial challenge to the regulation failed because:

(1) the CDOC’s valid penological interest in rehabilitation bears a rational connection to

individualized rehabilitative plans for inmates; (2) inmates retain access to all

publications which are not contrary to their rehabilitation goals; (3) unrestricted access to

sexually explicit material would threaten the safety of the general prison population; and

(4) Frazier had not suggested any alternative which would further the rehabilitative

interest at issue. Frazier’s as-applied challenge was unsuccessful because he failed to

                                            - 11 -
offer any confiscated material that did not reasonably fall within his individualized

restrictions.

       On appeal, Frazier states:

       In response to said ‘Recommendations’ . . . the plaintiff tendered a set of
       ‘Objections’ . . . which rebutted the Magistrate’s opinions on each of the
       ‘Turner’ factors with absolute precision and finality (in some of the best
       work the plaintiff feels he’s done in nearly six years of litigation) and yet
       they seem to have garnered virtually no consideration by the District Judge
       at all in her final ruling on this matter.

(Appellant’s Opening Br. at 12.) He devotes a considerable portion of his brief

castigating both the magistrate judge and the district court for their actions in this

litigation. As a result, he leaves little room for argument on the issues. Basically, he

reiterates his belief that “(1) the ‘individualized restrictions’ placed upon [his] reading

materials were far too stringent with regard to the actual facts of his prison conviction

[burglary/theft] and (2) the Defendants nevertheless abused their discretion in going far

beyond their own guidelines in censoring [his] publications because said restrictions were

facially vague so as to elicit subjective interpretation and arbitrary (and, hence,

unconstitutional) enforcement.” (Id. at 12.) In the end, he merely refers us to paragraph

48 in his proposed amended complaint, pages 5-7 in his summary judgment pleadings

and pages 1-8 in his objections to the magistrate judge’s recommendations “for virtually

everything that needs to be argued concerning this appeal issue.” (Id.)

       Solicitously reviewing these materials, as we must for a pro se appellant, Frazier’s

arguments are unpersuasive. As we perceive it, Frazier is challenging the

constitutionality of the prison’s regulation as it was individualized to his situation—an as-



                                            - 12 -
applied challenge. He insists his individualized plan “was based upon irrelevant,

misleading, and/or patently false information” and thus does not serve a valid penological

interest. (R. Vol. I at 412.) But as the district court advised, Frazier’s denial of the facts

in the presentence report is not at issue here. The CDOC was not arbitrary in accepting

these facts as the basis for Frazier’s rehabilitation plan. Frazier also argues his

individualized plan does not meet the second Turner factor because he has no alternative

means “to keep in touch with the music scene.” (Id. at 415.) However, it is uncontested

that only a few magazines were confiscated. Frazier received others in their entirety or

with only a few pages removed.

       Frazier also contends his individualized plan is unconstitutionally vague because it

does not define with particularity the age of the “young women and girls in underwear or

swimsuits” which are prohibited and the plan’s “[a]djectives such as ‘erotic,’ ‘sexually

oriented,’ and ‘sexually stimulating’ are just too abstract to be interpreted the same way

consistently from person to person.” (Id. at 413-14.) He alleges LCF’s actions are an

“exaggerated response” because it is the only facility (out of six where he has been

incarcerated) that confiscated these materials. We disagree. The magistrate judge and

the district court considered the pages restricted by the LCF reading committee in a

confiscated Rolling Stone magazine and correctly concluded the material was clearly

subject to the valid restrictions in Frazier’s individualized plan.3


       3
         For example, one of the restricted pages contained a photograph of a musician in
a very slight bikini with the editorial note: “Stone a Bone[.] Hellooo, Joss Stone! The
soul singer traded in her Joplin-esque duds for something sexier on the Barbados’
beaches.” (R. Vol. I at 279.)

                                            - 13 -
       Finally, Frazier claims the CDOC’s failure to provide him all the restricted

materials in response to his discovery requests made it impossible for the district court to

determine whether all the publications were reasonably confiscated.4 Although Frazier

repeatedly moved the district court to compel production of the publications, he

concomitantly alleged the CDOC had destroyed the confiscated publications. Therefore,

his publications were no longer in CDOC’s possession. The CDOC also responded that

“[b]ecause the threshold issue involved in this case is whether Plaintiff is allowed to

possess these items, censored portions of the publication cannot be produced to the

Plaintiff.” (R. Vol. I at 379 n.4.) Indeed, “all inmates could then obtain copies of

prohibited material merely by initiating litigation.” (Id.) The solution, of course, was for

Frazier to file a motion or an affidavit pursuant to Rule 56(d) to allow the judge to

conduct an in camera production and inspection of the restricted materials. He did not do

so. The district court did not err in holding Frazier to his Rule 56 burden.

       Frazier has not presented a material issue of fact demonstrating the CDOC

defendants violated his First or Fourteenth Amendment rights. Therefore, defendants

were entitled to qualified immunity and summary judgment in their favor was warranted.5




       4
        The magazines were destroyed at the time they were denied to Frazier or thrown
out when Frazier was transferred to another facility. Frazier submitted five pages from
one confiscated magazine which he procured himself.
       5
           Given this conclusion, we need not address Frazier’s damages claim.


                                            - 14 -
AFFIRMED. Frazier’s request to proceed ifp is GRANTED.


                             Entered by the Court:

                             Terrence L. O’Brien
                             United States Circuit Judge




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