                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 3 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    WILLIAM E. NEUSTETER,

                Plaintiff - Appellant,

    v.                                                    No. 02-1154
                                                     (D.C. No. 01-M-1141)
    J. COSSOBONE, Officer; JUDY                          (D. Colorado)
    LUNDY; LARRY REID; DAN
    SCHLESINGER; KAREN COOPER;
    CATHY SLACK; MAJOR SCHUH;
    SERGEANT MCCALL, individually
    and in their official capacities,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY , McKAY , and O’BRIEN , 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      This order and judgment is not binding precedent, except under the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.
      William Neusteter, a Colorado state prisoner appearing     pro se , appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint.

Defendant Officer Cossobone filed a disciplinary charge against Neusteter after

observing him spit on another inmate’s cell window. A disciplinary hearing was

conducted several days later, at which the hearing officer found that Neusteter

had spit on the cell window. As a result, Neusteter was terminated from the

progressive reintegration opportunity (PRO) unit, transferred, and placed on

restricted privileges status. As a result of his restricted status, Neusteter was

allowed only two books in his cell at a time.

      In his amended complaint,   1
                                      Neusteter first makes the conclusory allegation

that defendants Lundy, Reid, and Slack placed him on restricted status and

transferred him out of the PRO unit in retaliation for his refusal to admit he had

spit on the cell window. We agree the asserted facts demonstrate that Neusteter

was transferred and placed on restricted status as a sanction for the disciplinary

charge and that the district court properly dismissed this claim pursuant to

28 U.S.C. § 1915A(b) as frivolous and for failure to state a claim. Neusteter next

complains that defendants Cossobone, Schlesinger, Cooper, and Slack denied him



1
      Prior to service of process, the district court ordered Neusteter to file an
amended complaint because his original complaint consisted only of vague and
conclusory allegations and failed to provide sufficient factual information.
Neusteter then filed an amended complaint.

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due process. The district court properly dismissed this claim as frivolous under

§ 1915A(b) as well. The evidence in the record submitted by Neusteter

demonstrates that, contrary to his allegations, he was afforded notice of the

disciplinary hearings and an opportunity to present evidence in his favor and to

rebut the charges against him.

      Finally, Neusteter claims that defendants Schuh and McCall violated his

right to freely exercise his religion. He claims he was denied all religious

materials for two days while in a holding cell prior to his transfer. Neusteter

fails, however, to allege that these or any named defendants had any involvement

with the withholding or disposition of property while Neusteter was in a holding

cell. He also complains that, after his transfer, these defendants denied him

access to the “Code of Jewish Law” as a result of his restricted privileges status,

under which he was allowed to keep only two books in his cell.

      The limitation on personal property applies in a neutral manner and does

not specify which books may be kept. The undisputed evidence demonstrates that

Neusteter was allowed to choose the two books he would keep, but chose not to

keep the “Code of Jewish Law,” and was allowed to exchange his books, but

never requested an exchange. The policy does not restrict Neusteter’s use of the

general prison library or chaplain’s library. Additionally, the defendants

presented undisputed evidence that Neusteter may submit a request that the library


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purchase a book if it is not available from these libraries. These undisputed facts

demonstrate that the defendants’ actions were reasonably related to legitimate

penological interests, and did not substantially burden the free exercise of

Neusteter’s religion.   See Hernandez v. Comm'r , 490 U.S. 680, 699 (1989)

(“The free exercise inquiry asks whether government has placed a substantial

burden on the observation of a central religious belief or practice and, if so,

whether a compelling governmental interest justifies the burden.”);       Turner v.

Safley , 482 U.S. 78, 89 (1987) (holding that prison policies which infringe on

inmates’ constitutional rights are valid if they are reasonably related to a

legitimate penological goal). Accordingly, the district court correctly granted

summary judgment on this claim.

       Neusteter contends the district court erred in denying him leave to file a

third amended complaint. Neusteter sought leave to amend after defendants

Schuh and McCall filed their motion for summary judgment. The district court

denied leave to amend because it was untimely under the circumstances.

“[U]ndue delay is sufficient reason to deny” leave to amend.      McKnight v.

Kimberly Clark Corp. , 149 F.3d 1125, 1130 (10th Cir. 1998). The district court

had already allowed one amended complaint, and we conclude that it did not

abuse its discretion in refusing to allow a second amendment.         See Ramirez v.

Okla. Dep't of Mental Health , 41 F.3d 584, 596 n.9 (10th Cir. 1994).


                                           -4-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED.


                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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