                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 24, 2008
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    MAURICE A. LEE,

                Plaintiff-Appellant,

    v.                                                 No. 07-4093
                                               (D.C. No. 2:03-CV-1098-PGC)
    WILL CARLSON, Captain at the Utah                    (D. Utah)
    State Prison, individually; WADE
    BULLOCK, Officer at the Utah State
    Prison, individually; BRET
    ZIMMERMAN, Officer at the Utah
    State Prison, individually; W.J.
    FARNSWORTH, Lieutenant at the
    Utah State Prison, individually; JOHN
    DOES 1-10, employees at Utah State
    Prison, individually,

                Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before TACHA, McCONNELL and GORSUCH, 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Pro se plaintiff Maurice A. Lee, a Utah state prisoner, appeals the district

court’s order granting summary judgment to the defendants on the basis of

qualified immunity. We take jurisdiction under 28 U.S.C. § 1291 and affirm.

      Mr. Lee’s suit under 42 U.S.C. § 1983 alleged that his First Amendment

rights were “violated when the written manuscripts, novels, short stories and

artwork of his own original ideas were illegally confiscated [from his prison

cell] . . . by the defendants.” 1 R., Doc. 5 at 3. During litigation, Mr. Lee

conceded the defendants were justified in seizing one of his short stories as

sexually-explicit material forbidden by prison regulations. As to the confiscation

of the remaining materials, he requested money damages and an injunction

ordering the defendants to return the materials to him.

      On summary judgment, the district court found there were genuine issues of

material fact whether confiscation of Mr. Lee’s property violated the First

Amendment. Nonetheless, the court found the defendants were entitled to

qualified immunity because they acted reasonably. After reviewing the record

and considering the parties’ arguments, we affirm substantially for the same

reasons set forth by the court in its March 27, 2007, order.

      When qualified immunity is raised as a defense, the burden shifts to the

plaintiff to “first establish that the defendant’s actions violated a constitutional or


1
      Mr. Lee does not appeal from the district court’s order dismissing his other
claims during screening under 28 U.S.C. § 1915(e)(2)(b).

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statutory right.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citations

and quotation omitted). If the plaintiff meets this burden

      he must then demonstrate that the right at issue was clearly
      established at the time of the defendant’s unlawful conduct. In
      determining whether the right was “clearly established,” the court
      assesses the objective legal reasonableness of the action at the time
      of the alleged violation and asks whether the right [was] sufficiently
      clear that a reasonable [defendant] would understand that what he is
      doing violates that right. . . . If the plaintiff fails to satisfy either
      part of the two-part inquiry, the court must grant the defendant
      qualified immunity.

Id. (quotation omitted).

      This court reviews “summary judgment based on qualified immunity

de novo, considering all evidence in the light most favorable to the non-moving

party. [J]udgment is appropriate if the record shows . . . no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of

law.’” Ward v. Anderson, 494 F.3d 929, 934 (10th Cir. 2007) (quotation

omitted).

      In evaluating whether the law was clearly established at the time of the

alleged constitutional violation, the district court correctly held that “even if the

violated right is clearly established, ‘[q]ualified immunity shields an officer from

suit when she makes a decision that, even if constitutionally deficient, reasonably

misapprehends the law governing the circumstances she confronted.” R., Doc. 59

at 13 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). The court found

although in hindsight the defendants confiscated non-sexually explicit material,

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“those facts were not obvious to [the] [d]efendants at the time of their

actions. . . . In the prison context of overwhelming security concerns and limited

resources, such reasonable mistakes are inevitable.” Id. at 14 (emphasis added).

This finding is supported by the record.

       Despite its conclusion that the defendants were entitled to qualified

immunity, the district court granted Mr. Lee’s request for injunctive relief. It

found “a substantial likelihood that [his] constitutional rights will be violated if

he is permanently deprived of his non-sexually explicit writings,” id. at 15, and

ordered their immediate return to him. On appeal, Mr. Lee complains that prison

officials have not complied with the order; however, he must seek relief in the

district court in the first instance.

       We AFFIRM the judgment of the district court. Mr. Lee’s motion to

proceed in forma pauperis is GRANTED, and he is reminded of his continuing

obligation to make partial payments until he has paid the filing fee in its entirety.


                                                      Entered for the Court


                                                      Deanell Reece Tacha
                                                      Circuit Judge




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