                                                                            F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                         PUBLISH
                                                                       November 30, 2006
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
                                    T E N T H C IR C U IT



 W ENDEL R. W ARDELL, JR.,

              Plaintiff-Appellant,

 v.                                                         No. 05-1210

 SO NDRA DUNCAN, individually and
 officially; G LO RIA M A STER SON;
 JOSEPH G. ORTIZ, officially;
 TONEY W ELCH, individually and
 officially,

              Defendants-Appellees.



         A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
                    FO R T H E D IST R IC T O F C O L O R A D O
                       (D .C . N o. 02-C V -2204-PSF-O ES )


Submitted on the briefs:

W endel R. W ardell, Jr., Pro Se.

Nicole S. Gellar, Assistant Attorney General, John W . Suthers, Attorney General
of Colorado, Denver, Colorado, for Defendants-Appellees.


Before H E N R Y , A N D ER SO N , and M cC O N N E L L , Circuit Judges.


A N D ER SO N , Circuit Judge.
      Plaintiff W endel R. W ardell, Jr. appeals from a district court order granting

defendants’ motion for summary judgment and dismissing his pro se prison civil

rights action brought under 42 U.S.C. § 1983. He also challenges the denial of

motions to amend his pleadings and to compel compliance with discovery

requests. We affirm for the reasons explained below. *

      This action was prompted by prison officials’ interception of three parcels

mailed to plaintiff in M arch and April 2001, when he was incarcerated at the

Fremont Correctional Facility in Canon City, Colorado. The first contained books

from a “M ystery Guild” book club; the other two contained legal documents from

the Colorado State Archives and the Library of Congress which had been

purchased for plaintiff by a third party who was listed as another inmate’s visitor

and, thus, fell within a Colorado Department of Corrections (CDOC) prohibition

on gifts from unauthorized sources.

      In his complaint, plaintiff characterized “the nature of the case” as “a

constitutional challenge” to CDOC policies requiring prisoners to “purchase all

hobby work, legal materials, books and magazine subscriptions from their inmate

trust fund accounts” and banning gifts of such materials from unauthorized




*
       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.

                                         -2-
sources. R., Doc. 3 at 3. He pled claims under (1) the First Amendment, alleging

that the prohibition on gifts w as not reasonably related to any penological goals

and that his pursuit of other cases had been impeded by the loss of legal

materials, id. at 4-4B; and (2) the Due Process Clause, alleging that he was

deprived of property without recourse to challenge the deprivation, id. at 5. He

also pled a claim under the Racketeer Influenced and Corrupt Organizations A ct,

which he has effectively abandoned.

      At the outset, it is important to clarify a significant limitation on the scope

of this appeal. Although the complaint suggests a broad facial attack on the

regulations prohibiting gift purchases of subscriptions and the like, the case has

been narrowed substantially due to a mootness consideration. W hile this action

was pending below, plaintiff was paroled out of the state prison system. The

district court consequently dismissed his claims insofar as they sought declaratory

and injunctive relief invalidating the regulations. That disposition was correct,

see Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (following

Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997)), 1 and left only




1
       Plaintiff argued below that his claims for injunctive and declaratory relief
w ere not moot because he remained “in custody” in light of his parole status. H e
misunderstands the thrust of the mootness analysis. The point is that he was not
incarcerated in a facility governed by the regulations he challenges; the fact that
he left the facility on parole or supervised release is immaterial. See M cAlpine v.
Thom pson, 187 F.3d 1213, 1217-18 (10th Cir. 1999) (collecting cases).

                                          -3-
a damages claim based on application of the regulations to plaintiff’s particular

situation.

                   D ISM ISSA L O F D U E PR O C E SS C L A IM

       Early in the case, the magistrate judge recommended granting a motion to

dismiss the due process claim. W hen plaintiff did not object, the district court

summarily adopted the recommendation and dismissed the claim. Defendants

argue that the matter is now beyond challenge, invoking our “firm waiver rule”

under which timely objection to the magistrate judge’s recommendation is a

condition for appellate review. See, e.g., id. at 1197. W e agree.

       The waiver rule applies to pro se litigants, provided they were informed of

the time period for objecting and the consequences of failing to object.

M orales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). Here, the

magistrate judge specifically advised plaintiff of these conditions. R., Doc. 58

at 3, 10.

       The waiver rule may be suspended when the “interests of justice” warrant,

Wirsching, 360 F.3d at 1197-98, or when the aggrieved party makes the onerous

showing required to demonstrate plain error, M orales-Fernandez, 418 F.3d at

1120. W hile plaintiff continues to argue he was denied due process, he does not

even mention the procedural omission on which the district court’s disposition of

his due process claim was based, much less argue that this disposition was



                                         -4-
somehow unjust. Nor has he submitted a reply brief to respond to defendants’

specific invocation of the waiver rule on appeal. He did argue below, after the

claim was dismissed, that his failure to object was excusable because the

recommendation was sent to a prison from which he had been transferred. As he

had failed to notify the court of his change of address, however, he “bore some

responsibility for the failure to receive the . . . recommendation” and, thus,

interests of justice would not warrant our suspension of the waiver rule even if he

had argued this point on appeal. Wirsching, 360 F.3d at 1197 (explaining basis

for enforcement of waiver rule in Theede v. United States Department of Labor,

172 F.3d 1262, 1268 (10th Cir. 1999)).

      W e also see no basis for suspending the waiver rule under the plain error

standard. “Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” M orales-Fernandez,

418 F.3d at 1122-23 (quotation omitted). Plaintiff’s due process claim was

premised on the lack of a post-deprivation remedy for the diversion and

destruction of materials sent to him in the mail. R., Doc. 3 at 5. The magistrate

judge concluded that this claim was not legally viable: if based on negligence, it

failed under D aniels v. William s, 474 U.S. 327, 328 (1986); if based on deliberate

misconduct, it failed in light of the remedy for willful and wanton conduct by



                                          -5-
public employees provided in Colo. Rev. Stat. § 24-10-118, which encompasses

damage to or loss of property, Colo. Rev. Stat. § 24-10-103(2). See R., Doc. 58

at 7. Plaintiff does not contest either part of this rationale on appeal (and did not

do so below in response to the motion to dismiss), much less demonstrate an error

so plain and substantial as to satisfy the other requirements for plain error review

cited above. 2 W e need not pursue the point any further. Indeed, to do so would

undercut not only the firm waiver rule in particular but also general limitations

on review of issues not preserved in district court and/or properly presented

on appeal.

                         FIR ST A M EN D M EN T C L A IM S
                    (A ccess to C ourts/R ight to R eceive M ail)

      W e emphasize again that this case is limited to plaintiff’s claim for

damages based on particular instances in which enforcement of the challenged

prison regulations allegedly interfered with his constitutional rights. M oreover,

in this First Amendment context it is also material to note that his claim does not

include the incident involving the M ystery Guild books, which was eliminated

from the case as a result of the same magistrate judge recommendation to which




2
      Plaintiff’s appellate arguments focus on the lack of notice provided to the
sender of excluded materials. It was certainly not plain error for the magistrate
judge to disregard due process interests of non-parties, which plaintiff does not
have standing to assert.

                                          -6-
he waived review as previously discussed. 3 See R., Doc. 58 at 6; Doc. 59 at 1-2.

Given the circumstances, our review is limited to the First Amendment objections

plaintiff raised regarding the interception of legal materials purchased for him by

a third party who had ties to another inmate. H e contends this interfered with his

(1) right of access to the courts and (2) right to receive mail.

      A . A ccess to C ourts

      The district court rejected the access-to-courts aspect of plaintiff’s claim

because he had not made the showing of prejudice required by Lewis v. Casey,

518 U.S. 343 (1996). A plaintiff “must show that non-delivery of his legal mail [4 ]

resulted in ‘actual injury’ by ‘frustrat[ing],’ ‘imped[ing],’ or ‘hinder[ing] his

efforts to pursue a legal claim.’” Simkins v. Bruce, 406 F.3d 1239, 1243

(10th Cir. 2005) (quoting Lewis, 518 U.S. at 351-53 & n.3). Conclusory

allegations of injury in this respect w ill not suffice. Cosco v. Uphoff, 195 F.3d


3
       The magistrate judge concluded that plaintiff’s specific complaint about the
books, which turned on their status as property per se (i.e., he did not object to his
inability to read the books but to their destruction in lieu of return to the sender),
did not implicate his First Amendment rights, though it might suggest a takings
claim. R., Doc. 58 at 6. The judge held that such a claim would fail, however, in
light of the fact that plaintiff had not yet exhausted a state remedy available for
the property loss. Id. As discussed earlier, our review of the magistrate judge’s
recommendation is barred by the firm waiver rule unless the ruling in question
rises to the level of plain error. N o such error is evident here.
4
      Here we are not dealing with “legal mail,” in the sense of correspondence
with courts or counsel, but only with private mail enclosing materials of a legal
nature. Even treating the latter as indistinguishable from the former, however, w e
conclude plaintiff’s access claim fails for the reasons discussed above.

                                          -7-
1221, 1224 (10th Cir. 1999); cf. Simkins, 406 F.3d at 1243-44 (recognizing

sufficient showing of actual injury where prisoner demonstrated specific impact

on prosecution of particular case). Here, other than a conclusory allegation in the

complaint that a petition for a writ of certiorari had, for unspecified reasons, been

dismissed, see R., Doc. 1 at 4A, plaintiff has not alleged and substantiated any

injury to satisfy the Lewis requirement. Indeed, he does not even mention the

point on appeal.

      Accordingly, to the extent plaintiff’s First Amendment claim rests on the

denial of access to the courts, it was properly dismissed for lack of actual injury.

That leaves plaintiff’s reliance on his right to receive mail per se.

      B . R ight to R eceive M ail

      Turner v. Safley, 482 U.S. 78 (1987), established “that restrictive prison

regulations [including restrictions on First A mendment rights] are permissible if

they are reasonably related to legitimate penological interests and are not an

exaggerated response to those concerns.” Beard v. Banks, 126 S. Ct. 2572, 2578

(2006) (internal quotations and citation omitted). Turner set out four factors for

assessing reasonableness in this context:

      First, is there a valid, rational connection between the prison
      regulation and the legitimate governmental interest put forward to
      justify it? Second, are there alternative means of exercising the right
      that remain open to prison inmates? Third, what impact will
      accommodation of the asserted constitutional right have on guards
      and other inmates, and on the allocation of prison resources

                                          -8-
      generally? A nd, fourth, are ready alternatives for furthering the
      governmental interest available?

Id. (internal quotations, alterations, and citations omitted).

First Turner Factor

      The materials at issue here were confiscated because they had been paid

for by a third party who was on the list of visitors for another inmate. The

narrow, neutral character of the operative restriction was summarized by the

magistrate judge:

      The policies in question here ban gift purchases without even looking
      at content. There is no indication under this regulation that the
      prison is concerned with suppressing expression, but is instead
      concerned with increasing safety and alleviating the security issues
      posed by gift purchases and, in particular, gift purchases made by
      visitors of one inmate for another inmate. The restriction does not
      prevent inmates from corresponding w ith persons on the visitor list
      of another inmate; it simply does not allow them to receive items
      purchased by such persons.

R., Doc. 186 at 13. The penological purposes of the restriction were to prevent

unauthorized bartering, extortion, contraband smuggling, and other prohibited

and/or criminal activity inside the prison facilitated through the assistance or

exploitation of third parties outside the prison; to prevent inmates from

conspiring to manipulate and defraud members of the public; and to prevent the

unauthorized practice of law by “jailhouse lawyers” selling legal services to other

inmates and the public. Id. at 14-16. These objectives and their commonsense

connection to the restriction in question (particularly regarding the involvement

                                          -9-
of third parties in the furtherance of improper activities inside the prison) were

substantiated by the affidavit of the Administrative Services M anager for the

prison. Id. D oc. 104, Ex. A .

      W e owe deference to the professional judgment reflected in this affidavit.

Beard, 126 S. Ct. at 2578 (following Overton v. Bazzetta, 539 U.S. 126, 132

(2003)). To defeat summary judgment, it is not enough for plaintiff to disagree

with the views expressed in the affidavit; he must point to evidence creating

genuine factual disputes that undermine those views. Id. (same). Absent such

evidence, defendants’ affidavit is sufficient to establish, on summary judgment,

“that the regulations do, in fact, serve the function[s] identified” by the prison

defendants. Id. at 2579; see, e.g., Wirsching, 360 F.3d at 1199-1201 (upholding

prison policy based on official’s affidavit satisfying several Turner factors,

including the first). Plaintiff points to no contrary record evidence here. Instead,

he argues that decisions in other prison First A mendment cases, and an affidavit

submitted for the plaintiff in one of those cases, support his claim here.

      W e do not decide as a general matter w hether a plaintiff may effectively

counter prison officials’ evidentiary showing under Turner by relying on

statements in judicial opinions favorable to other plaintiffs asserting First

Amendment challenges to similar regulations. W e need only note that the cases

plaintiff relies on are too dissimilar to be analytically useful. Turner “requires



                                         -10-
courts, on a case-by-case basis, to look closely at the facts of a particular case and

the specific regulations and interests of the prison system in determining whether

prisoner’s constitutional rights may be curtailed.” Beerheide v. Suthers, 286 F.3d

1179, 1185 (10th Cir. 2002). The cases cited by plaintiff involved broader claims

for equitable relief facially challenging more restrictive regulations than those at

issue here (again, the limited scope of the damage claims under review must be

kept in mind). See Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004)

(reviewing claims for injunctive and declaratory relief by inmates and non-prison

publishers broadly challenging Kansas regulatory scheme imposing absolute

dollar limit on inmate purchases of books, new spapers and periodicals,

prohibiting all gift subscriptions, and censoring materials without notice to the

publisher); Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999) (reviewing claim for

injunction against absolute ban on gifts regardless of source, including inmate’s

own family). These cases also involved different sets of penological interests

advanced in favor of the regulations and, of course, different evidentiary records

fleshing out the interests to be weighed and compared.

      Indeed, plaintiff wishes to take advantage of an item from the evidentiary

record in Jacklovich. He argues that an affidavit submitted on behalf of the

Jacklovich plaintiffs by a former prison official should be considered here in

opposition to the otherwise unopposed affidavit offered in support of defendants’



                                         -11-
motion for summary judgment. W ithout deciding as a general matter whether

evidentiary materials developed in one case may be judicially noticed as a means

to augment a deficient record in another case, we hold only that the substantive

and procedural differences between the cases in question make such a procedure

inappropriate here. Illustrating this, the very point for which plaintiff cites the

Jacklovich affidavit is not directly relevant to the particular dispute before us.

Plaintiff notes that in the affidavit “[w]hile [the official] recognized the value of

monitoring inmates’ funds, he severely criticized a blanket ban on gift

subscriptions as rationally connected to that goal.” Aplt. Opening Br. at 10

(emphasis added). But, as w e have previously explained, we are concerned here

specifically with gift purchases made by third persons linked to other inmates,

which, moreover, were regulated in furtherance of a set of prison interests that

went beyond the fund monitoring discussed in the Jacklovich case.

      In sum, defendants identified legitimate, neutral prison interests served by

the restriction enforced in this case. They supported their case with evidence of

professional judgment which is entitled to deference and which plaintiff has

failed effectively to challenge. The first Turner factor supports summary

judgment.




                                          -12-
Second Turner Factor

      In considering alternative means open to an inmate for exercising a right

restricted by prison regulation, we have emphasized that the “alternatives ‘need

not be ideal . . . they need only be available.’” Wirsching, 360 F.3d at 1200

(quoting Overton, 539 U.S. at 135). Thus, even if not the “best method” from the

inmate’s point of view, if another means of exercising the right exists, the second

Turner factor does not undercut the challenged restriction. Id. at 1201. That is

clearly the case here. Plaintiff could have purchased materials himself, including

with the financial assistance of family members, and he has not alleged there is

any monetary limit on his ability to do so. M oreover, to the extent the focus of

the inquiry here is specifically on legal materials, there was no dispute in this

case that he had access to the law library at the prison. In this respect, the fact

that he would have use of the legal materials through library loan rather than

outright ownership is not important to the analysis. See Thornburgh v. Abbott,

490 U.S. 401, 417-18 (1989) (explaining how cases applying second Turner

factor reflect that it must be approached “sensibly and expansively,” so as to

encompass different practical alternatives that satisfy same broad underlying

function).




                                         -13-
Third Turner Factor

      Regarding the impact of accommodating plaintiff’s asserted right, a main

concern of prison officials w ith respect to third-party gifts (and especially gifts

received from third parties associated with other inmates), is the opportunity

these offer inmates to engage in illegal, prohibited, or restricted activities (recited

supra at page 9) with the assistance of–or at the expense of–members of the

public who are beyond the supervision and control of the prison. To counter such

undesirable effects, the prison

      would have to exercise significantly more inspection and supervision
      over inmates and mail. [It] would have to assign or specially employ
      staff members to investigate suspected incidents of bartering using
      third parties, the unlawful practice of law without a license as well as
      various other types of crimes and illicit activities. The [prison] does
      not have the resources to assign or specially employ staff members
      for this purpose. In addition, it does not have the authority or
      capacity to investigate the actions of third parties occurring outside
      the prison.

R ., D oc. 104, Ex. A at 4. While the degree of impact may be open to debate, w e

cannot gainsay defendants’ basic judgment that permitting third-party gifts and

then trying to control the resultant security problems through reactive efforts

within the prison would pose a burden on staff and resources.




                                         -14-
Fourth Turner Factor

      Explaining this last factor, the Supreme Court stated that “the absence of

ready alternatives is evidence of the reasonableness of a prison regulation,” w hile

“the existence of obvious, easy alternatives may be evidence that the regulation

is not reasonable, but is an exaggerated response to prison concerns.” Turner,

482 U.S. at 90. The Court went on to clarify that “[t]his is not a ‘least restrictive

alternative’ test: prison officials do not have to set up and then shoot down every

conceivable method of accommodating the claimant’s constitutional complaint.”

Id. at 90-91. Rather, this factor weighs against the regulation if the inmate “can

point to an alternative that fully accommodates the prisoner’s rights at de minimis

cost to valid penological interests.” Id. at 91 (emphasis added).

      Defendants’ evidence regarding the burdens of accommodation cited above

also indicates the absence of obvious and easy alternative security measures. The

compensatory efforts that would be required if the challenged restriction were

dropped appear, rather, to be complicated and onerous. Plaintiff contends that

prison officials could simply monitor gifts by requiring the third party to provide

relevant information such as the source, amount, and manner of payment. But, as

defendants explain in commonsense terms, this proposed alternative would entail

data collection, processing, management, and application requiring substantial

staff resources and would not, in any event, be as effective in preventing inmates



                                         -15-
from using third parties (here, specifically, a visitor with ties to another inmate)

as “passthroughs” for bartering and other efforts to circumvent prison rules.

Plaintiff’s proposed alternative fails to accommodate his interest “with so little

cost to penological goals that [it] meet[s] Turner’s high standard,” and, thus, the

fourth Turner factor “cannot justify [a] decision . . . to invalidate the regulation.”

Overton, 539 U.S. at 136.

C onclusion of Turner A nalysis

      Defendants have asserted and substantiated a set of legitimate penological

interests rationally related to the restriction under review, particularly as it was

applied in the specific circumstances underlying the damages claim to which our

review here is limited. In addition, all of the other Turner factors bolster the

conclusion that the challenged restriction, as applied, was a constitutionally valid

exercise of prison administrative authority. Accordingly, on the record before us,

we affirm the grant of summary judgment for defendants.

                            R E M A IN IN G O B JE C T IO N S

      Plaintiff concludes his appeal with three procedural objections, none of

which have merit. First, he contends he was improperly denied leave to amend

his pleadings, two years into the case and after defendants’ motion for sum mary

judgment had been filed and briefed. Plaintiff’s motion did not specify what

amendments he would make; rather, it sought leave to amend “in the event the



                                          -16-
defendants [were] compelled to file discovery responses [and] in the event that

the responses demonstrate that amendment is appropriate.” R., Doc. 134 at 2.

He later indicated that he wished “to expound on the issues of Internet legal

materials and legal access to the courts - issues w hich were properly brought in

the initial complaint but which require amendment to conform to the evidence.”

R., Doc. 196 at 29.

      The motion was thoroughly considered under correct legal standards, id.

Doc. 186 at 35-36 (magistrate judge’s recommendation discussing numerous

authorities and relevant legal principles), and denied because “[b]ased on the

record before the court, [it found] that granting leave to the plaintiff to amend his

Complaint would be untimely, that plaintiff did not diligently pursue the basis for

such amendments, and that the facts behind such amendments would have been

known to the plaintiff at the initiation of this action,” id. at 36. See also id.

Docs. 195 & 202 (district court orders adopting magistrate judge’s

recommendation). W e owe considerable deference to this decision which, given

the “thoroughly reasoned explanation[,] [does] not constitute an abuse of

discretion.” Reeder v. Am. Econ. Ins. Co., 88 F.3d 892, 896 (10th Cir. 1996).

      Second, plaintiff argues that he was improperly denied discovery. He does

not describe the discovery he was denied, explain why he was entitled to it, or

demonstrate how this prejudiced his case on summary judgment. Instead he



                                          -17-
merely cites a list of some eight pleadings from the record and “incorporates”

these into his appellate brief. Aplt. Opening Br. at 21. “Like other circuit courts,

we do not consider this acceptable legal argument.” Gaines-Tabb v. ICI

Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998). Plaintiff’s pro se

status does not except him from such established rules. See Green v. Dorrell,

969 F.2d 915, 917 (10th Cir. 1992).

      Finally, plaintiff objects to the affidavit defendants submitted in support of

their motion for summary judgment, because it was “self-serving.” Aplt. Opening

Br. at 22. Of course the affidavit served defendants’ cause; its purpose was to

identify and explain the penological interests justifying the restriction under

challenge. As noted in our discussion of the evidence relating to the Turner

factors above, affidavits of this sort are a proper and effective means for prison

officials to provide a record for the court’s assessment of a challenged prison

restriction. See supra at 9-10 (citing Beard, 126 S. Ct. at 2579, and Wirsching,

360 F.3d at 1199-1201).

      For the reasons discussed above, the judgment of the district court is

A FFIRME D.




                                         -18-
