                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 18, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
RAYMOND ANTHONY LEWIS,

      Plaintiff - Appellant,

v.                                                         No. 15-8135
                                                  (D.C. No. 2:13-CV-00209-NDF)
JERRY CLARK, in his individual                               (D. Wyo.)
capacity; LT. GORDON CLAPP, in his
official capacity; NATRONA COUNTY
SHERIFF’S DEPARTMENT DEPUTY
LIEUTENANT,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Raymond Anthony Lewis, proceeding pro se, appeals the district court’s Fed.

R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 civil rights complaint relating to

his incarceration as a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291

and affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I.

        Lewis was a pretrial detainee in Natrona County Detention Center (“NCDC”)

in Wyoming from May to September, 2013. His § 1983 complaint alleges his

constitutional rights were violated at NCDC, and he named as defendants Lieutenant

Jerry Clark, then the Deputy Sheriff of Natrona County in charge of NCDC,1 and

numerous unnamed sheriff’s deputies in their official and individual capacities. The

district court dismissed Lewis’s first complaint with leave to amend, then dismissed

his second complaint under Rule 12(b)(6) for failure to state a claim. On appeal, we

affirmed in part and reversed in part, remanding several of Lewis’s claims for further

consideration. Lewis v. Clark, 577 F. App’x 786, 803 (10th Cir. 2014). The issues

on remand related to a one-time denial of Lewis’s request to use NCDC’s law library,

NCDC’s ban on inmate-to-inmate correspondence, and its ten-page limit on incoming

mail.

        The district court ordered the defendants to file a Martinez report.2 After

consideration of the report, the court granted defendants’ motion to dismiss all of

Lewis’s official-capacity claims. It also granted Clark’s motion to dismiss the

        1
         Clark passed away after Lewis filed his notice of appeal. Natrona Sheriff’s
Department Lieutenant Gordon Clapp succeeded to Clark’s position in charge of
NCDC operations and has been substituted for Clark as to all of Lewis’s
official-capacity claims against Clark.
        2
         See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (authorizing
district courts to order prison officials to investigate an inmate’s § 1983 claims to
determine whether they have any factual or legal basis). A “Martinez report may not
be used to resolve disputed factual issues,” but “an uncontroverted report may serve
as the basis for a dismissal” on a Rule 12(b)(6) motion. Gallagher v. Shelton, 587
F.3d 1063, 1067 n.7 (10th Cir. 2009).
                                            2
individual-capacity claims against him. Finally, it dismissed the complaint in its

entirety because Lewis never identified any of the unnamed officials.

                                            II.

       We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco, 627 F.3d 1178,

1183 (10th Cir. 2010). Because Lewis is proceeding pro se, we construe his

pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

       Library-Access-Retaliation Claim. Lewis alleges that on August 7, 2013, at

10:00 p.m., an unknown deputy denied him access to NCDC’s law library on the

stated ground that Lewis didn’t need to use it because he had an attorney. He says

the deputy denied him access in retaliation for the numerous grievances he had filed

against NCDC officials, in violation of his rights under the First and Fourteenth

Amendments.

       The district court dismissed Lewis’s retaliation claim because he didn’t allege

the unnamed deputy acted in accordance with any Natrona County or NCDC custom

or policy of retaliation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978) (holding that an official-capacity claim functions as a claim against the

governmental entity itself). Rather, Lewis alleges only one act by an unnamed

deputy under a vicarious-liability theory, which isn’t a permissible basis under

§ 1983. Id. at 691.

       A governmental entity can be held liable under § 1983 only for an action the

entity officially sanctioned, for the actions of an official with final policymaking

authority, or for “a widespread practice that, although not authorized . . . , is so

                                             3
permanent and well-settled as to constitute a custom or usage with the force of law.”

City of St. Louis v. Praprotnik, 485 U.S. 112, 122-23, 127 (1988) (internal quotation

marks omitted).

       On appeal, for the first time in his reply brief, Lewis suggests his retaliation

claim isn’t based only on the action of the unnamed deputy; he says that in the first

complaint he filed—later amended—he attached grievances filed by other inmates

which would show widespread retaliation by NCDC deputies. But his first complaint

didn’t allege any widespread policy of retaliation and, in any event, his amended

complaint “supersedes the original and renders it of no legal effect.” Davis v. TXO

Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (internal quotation marks

omitted). Lewis’s amended complaint very clearly based his retaliation claim on

only the act of the one unknown deputy denying his August 7 library request. The

district court correctly held this allegation fails to state a § 1983 official-capacity

claim, and we affirm the dismissal.

       Due Process Denial of Access to Law Library. Lewis further alleges that the

one-time denial of library access on August 7 violated his procedural due process

rights. He claims language in the NCDC handbook gave him a protected liberty and

property interest in the use of the library that could not be denied without due

process.

       To set forth a procedural due process violation, a plaintiff must first show “the

deprivation of an interest in life, liberty, or property.” Elliott v. Martinez, 675 F.3d

1241, 1244 (10th Cir. 2012) (internal quotation marks omitted). Second, the plaintiff

                                             4
must prove the procedures followed by the defendant didn’t comport with due

process of law. Id.

      The district court correctly ruled that language in prison handbooks, rules, and

regulations can’t be used to derive property or liberty interests in the prison context.

See Cosco v. Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999) (holding no liberty

interest can arise from prison regulations); Rapier v. Harris, 172 F.3d 999, 1005

(7th Cir. 1999) (holding the use of prison regulations to derive a liberty interest is

“no more valid in the context of pretrial detainees”). “Liberty interests can either

arise from the Constitution or be created by state law.” Cordova v. City of

Albuquerque, 816 F.3d 645, 656-57 (10th Cir. 2016). There is no right in the

Constitution to unfettered use of a prison law library, see Penrod v. Zavaras, 94 F.3d

1399, 1403 (10th Cir. 1996), and Lewis points to no state law giving him such an

interest, see Cordova, 816 F.3d at 657 (“[A] State creates a protected liberty interest

by placing substantive limitations on official discretion.” (internal quotation marks

omitted)). Thus, the district court correctly ruled Lewis’s complaint fails to identify

any constitutionally protected property or liberty interests which could support his

claim that the one-time denial of library access deprived him of due process.

      Ban on Inmate-to-Inmate Correspondence. Lewis alleges NCDC’s absolute

ban on inmate-to-inmate correspondence violates his First and Fourteenth

Amendment rights because it doesn’t allow an exception for family members. Lewis

complains the ban prevents him from communicating with his son, an inmate at

another prison. “[W]hen a prison regulation impinges on inmates’ constitutional

                                            5
rights, the regulation is valid if it is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Turner held that restrictions on

inmate-to-inmate communications pass constitutional muster if they are reasonably

related to legitimate and neutral governmental objectives. Id. at 89, 93.

       To balance the guarantees of the Constitution with the legitimate concerns of

prison administrators, courts use four factors set forth in Turner:

       (1) whether a rational connection exists between the prison policy [or]
       regulation and a legitimate governmental interest advanced as its
       justification; (2) whether alternative means of exercising the right are
       available notwithstanding the policy or regulation; (3) what effect
       accommodating the exercise of the right would have on guards, other
       prisoners, and prison resources generally; and (4) whether ready,
       easy-to-implement alternatives exist that would accommodate the
       prisoner’s rights.
Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir. 2007) (citing Turner, 482 U.S. at 89-

91). In ruling on a Rule 12(b)(6) motion to dismiss, the court needn’t assess or

address all four factors, but need only assess as a general matter whether the

regulation is reasonably related to a legitimate penological interest. Al-Owhali v.

Holder, 687 F.3d 1236, 1240 (10th Cir. 2012). Lewis has the burden to “plead facts

from which a plausible inference can be drawn that the [restriction] was not

reasonably related to a legitimate penological interest.” Id. (internal quotation marks

omitted).

       The Martinez report noted that NCDC implemented its inmate-to-inmate

correspondence ban to ensure safety, security, and orderly operation of the facility.

See Turner, 482 U.S. at 92 (recognizing that “correspondence between prison


                                             6
institutions facilitates the development of informal organizations that threaten the

core functions of prison administration, maintaining safety and internal security,”

among other concerns). Assessing the Turner factors, the district court determined

the inmate-to-inmate correspondence ban was rationally connected to NCDC’s

legitimate security concerns and didn’t restrict other means of communication; and

Lewis didn’t allege any facts showing that any alternative to the ban would alleviate

NCDC’s safety and security concerns. It concluded the inmate-to-inmate

correspondence ban was reasonably related to a legitimate penological interest and

therefore valid.

      The first Turner factor—whether a rational connection exists between the

prison regulation and a legitimate governmental interest—“is the most important,” as

“it is not simply a consideration to be weighed but rather an essential requirement.”

Al-Owhali, 687 F.3d at 1240 (internal quotation marks omitted); Boles, 486 F.3d at

1181 (holding the first Turner factor isn’t merely a factor, but a required element).

On appeal, Lewis asserts that NCDC’s “fixation on safety and security” with respect

to the inmate-to-inmate mail ban is “without merit.” Aplt. Opening Br. at 6. But in

his amended complaint he conceded that the “policy for no inmate-to-inmate mail” is

“absolutely” “a legitimate safety concern.” Aplt. App., Vol. I at 259 (Am. Compl.);

see also id. at 612 (Resp. to Mot. to Dismiss) (stating “[t]here is NO dispute that the

prohibition of ‘inmate-to-inmate’ correspondence is reasonably related to a

Governmental interest . . . concerning safety & security”).



                                           7
      We agree with the district court that Lewis’s complaint fails to plead sufficient

facts that would permit a court to plausibly infer that NCDC’s inmate-to-inmate

correspondence ban wasn’t reasonably related to a legitimate penological interest and

affirm the dismissal of this claim. See id. at 91-93 (upholding restrictions on inmate-

to-inmate written correspondence as reasonably related to prison security and

legitimate penological interests); Al-Owhali, 687 F.3d at 1241 (affirming dismissal

where the prisoner’s complaint failed to allege facts indicating the prison’s ban on

communication with his nieces and nephews lacked a legitimate penological

objective).

      Ten-Page Limitation on Mailed Items. Lewis alleges NCDC rejected research

materials his wife mailed him based on a ten-page limitation on mailed items. He

argues this action deprived him of his property without due process because the ten-

page limit rule isn’t published in NCDC’s regulation handbook. “[M]inimum

procedural safeguards must accompany the decision to withhold delivery or censor

incoming prison mail.” Jacklovich v. Simmons, 392 F. 3d 420, 433 (10th Cir. 2004).

      The Martinez report showed that NCDC’s handbook states prison employees

may hold or return incoming mail if they deem it unacceptable in the exercise of their

discretion, and if any mail is deemed unacceptable, it will be returned to the sender,

and the prisoner will be notified of the violation. It is clear from Lewis’s complaint

that he received such a mail-violation notice, which prompted his grievance. The

district court ruled that the allegations in Lewis’s complaint demonstrated that NCDC

afforded Lewis adequate procedural safeguards by notifying him that mail may be

                                           8
withheld and providing him postdeprivation notice and the right to file a grievance,

which process he indeed used.

      Lewis’s complaint merely alleges that he didn’t receive advance notice of the

ten-page limit. He asserted no facts, nor has he asserted any argument on appeal,

suggesting he didn’t receive adequate postdeprivation notice and remedy. It is well

settled that a deprivation of property doesn’t violate the Due Process Clause if a

meaningful postdeprivation remedy for the loss is available. See Hudson v. Palmer,

468 U.S. 517, 533 (1984). Because Lewis was afforded an adequate postdeprivation

remedy, we affirm the dismissal of this due process claim.

      Lewis also alleges the ten-page limit violates his constitutional free-speech and

free-association rights. The district court conducted the four-factor Turner test,

concluding all weighed in favor of the limit’s constitutionality. It concluded

NCDC’s stated interests in orderly prison operations, reducing contraband, and

reducing the number of pages mail officials must scan are legitimate governmental

interests rationally related to the policy, and that Lewis hasn’t pled any facts

indicating otherwise. It further noted Lewis’s complaint doesn’t allege any facts

plausibly suggesting an alternative to accommodate him with minimal effect on

NCDC’s resources and penological interests. Finally, the court noted that NCDC

already offers an alternative, allowing unlimited daily mailings of less than ten pages.

Thus, it ruled Lewis’s complaint failed to state a constitutional claim. See Gee, 627

F.3d at 1185 (holding a First Amendment claim of interference with the mail is not



                                            9
plausible absent factual allegations showing the alleged interference violated prison

rules or the rule was invalid under Turner).

       On appeal, Lewis asserts NCDC’s safety concerns are exaggerated and asserts

other types of mail pose greater concerns than mailings over ten pages. Again, we

agree with the district court’s analysis and conclusion that Lewis’s complaint doesn’t

state facts that plausibly indicate the page limits lack a rational connection to a

legitimate penological interest.

       Waived Arguments. Lewis asks that we reverse the denial of his second

motion to amend his amended complaint and his motion to compel interrogatories. In

a nondispositive pretrial order, the magistrate judge denied these motions. Lewis

failed to file any objection or appeal from that order to the district court.

       Magistrate judges are authorized to decide nondispositive pretrial matters

pursuant to 28 U.S.C. § 636(b)(1)(A), and it is well established that we can’t review a

magistrate judge’s order under § 636(b)(1)(A) unless the party requesting review

timely objected to the order. Pippinger v. Rubin, 129 F.3d 519, 533 (10th Cir. 1997);

see also Fed. R. Civ. P. 72(a) (requiring parties to file written objections to a

magistrate judge’s order on a nondispositive matter with the district court within

fourteen days). In contrast to the notice and warning requirement that exists for pro

se parties when a magistrate judge issues a report and recommendation regarding a

dispositive matter under 28 U.S.C. § 636(b)(1)(B)-(C), see Moore v. United States,

950 F.2d 656, 659 (10th Cir. 1991), it is immaterial that the magistrate judge’s order

didn’t warn Lewis of the consequences of failing to file objections with the district

                                            10
court. See Caidor v. Onondaga Cty., 517 F.3d 601, 604-05 (2d Cir. 2008) (noting

that, in contrast to Fed. R. Civ. P. 72(b)(2), Rule 72(a) contains an express waiver

provision that pro se litigants should be aware of, and holding that “a pro se litigant

who fails to object timely to a magistrate judge’s order on a non-dispositive matter

waives the right to appellate review of that order, even absent express notice from the

magistrate judge that failure to object within ten days will preclude appellate

review”); United States v. Schultz, 565 F.3d 1353, 1362 (11th Cir. 2009) (same).

Accordingly, these arguments are waived.

      Individual-Capacity Claims. Lewis didn’t file a response to the Rule 12(b)(6)

motion to dismiss filed by Clark in his individual capacity. The district court ruled

that Lewis’s complaint fails to state any individual-capacity claim against Clark both

because he didn’t allege any personal participation by Clark in any of the alleged

constitutional violations and because he hadn’t plausibly stated any claim that his

constitutional rights were violated. The district court also dismissed Lewis’s claims

against the remaining defendants, all of whom were unnamed deputies, because he

failed to name any, despite the information in the Martinez report. We discern no

error in the district court’s analysis of these claims, and affirm the dismissal of the

individual-capacity claims.

                                           III.

      Lewis’s motion for leave to file a second supplemental opening brief is denied.

We also deny his request that we stay this appeal so that he may file objections to the

magistrate judge’s order. We grant his request to proceed in forma pauperis, but we

                                            11
remind him that he is obligated to continue making partial payments until the entire

fee has been paid. The district court’s judgment is affirmed.




                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                          12
