                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 16, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT


    DERRICK R. PARKHURST, and all
    other persons who are now or may be
    similarly situated,

               Plaintiff-Appellant,                     No. 08-8069
                                              (D.C. No. 2:07-CV-00279-CAB)
    v.                                                   (D. Wyo.)

    ROBERT O. LAMPERT, individually
    and in his official capacity as
    Wyoming Department of Corrections
    State Penitentiary Warden; MICHAEL
    MURPHY, individually and in his
    official capacity as Wyoming
    Department of Corrections Director,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Derrick R. Parkhurst, a prisoner in the custody of the Wyoming Department

of Corrections (WDOC) appearing pro se, appeals from the district court’s entry

of summary judgment in favor of defendants. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm in part, reverse in part, and remand in part.

                                          I

      The facts are mostly undisputed. Mr. Parkhurst is the chairman of the

Wyoming Prisoners’ Association (WPA), an unincorporated, nonprofit association

registered with the Wyoming Secretary of State. He also is an official of the

Wyoming chapter of the Citizens United for Rehabilitation of Errants

(WY-CURE). He combined the newsletters of the WPA and the WY-CURE to

form what he calls the WPA Law Review and CURE Newsletter, which concerns

matters of interest to Wyoming state prisoners. In June 2006, Mr. Parkhurst

placed 693 copies of the newsletter in one FedEx box addressed to the Wyoming

State Penitentiary (WSP). The newsletters were individually addressed to specific

prisoners, allegedly including each prisoner’s WDOC correctional facility

number. Officials at the WSP refused to deliver the newsletters allegedly based

on Wyoming Policy and Procedure (WPP) #5.401(IV)(C)(1)(k), which, at the

time, provided in relevant part that non-privileged mail may be rejected if it

“[c]ontains material not intended for the addressee; but rather material intended

for other parties.” R., Doc. 14-4, Ex. A at 5. Defendants claim the box of

newsletters was returned to its sender, but according to Mr. Parkhurst, the box

                                         -2-
was returned to a FedEx office, not to him. WSP officials did deliver several

copies of the newsletter that Mr. Parkhurst sent individually via United States

mail, including one copy he sent to himself.

      Dissatisfied with the nondelivery of the 693 newsletters, Mr. Parkhurst

filed this action under 42 U.S.C. § 1983, naming defendants in their official and

individual capacities. 1 He claimed that the refusal to deliver the newsletters

violated his right to free expression under the First Amendment of the United

States Constitution and his right to freedom of speech and the press under the

Wyoming Constitution. He sought an order prohibiting defendants from refusing

to deliver the newsletter in the future, and damages for the cost of reproducing

and reissuing the newsletter. He also sought class status for all WDOC prisoners

who were deprived of their right to receive the newsletter.

      Defendants moved for summary judgment on a number of grounds:

Mr. Parkhurst’s claims as a publisher of the newsletter were moot due to passage

of a revised mail policy effective March 31, 2007; Mr. Parkhurst lacked standing

as a subscriber of the newsletter because he received a properly addressed and

mailed copy of the newsletter; defendants were immune from official-capacity

claims for damages under the Eleventh Amendment; and defendants were entitled

to qualified immunity against individual-capacity claims for damages.


1
     Defendant Robert Lampert is the director of the WDOC, and defendant
Michael Murphy was the WSP warden at the time.

                                         -3-
Defendants also opposed class certification. The district court granted

defendants’ motion for summary judgment on the grounds of mootness, lack of

standing, and qualified immunity, and denied as moot the motion for class

certification. Mr. Parkhurst has appealed. 2

                                          II

      When a case is decided on summary judgment, we review the district

court’s decision “de novo, applying the same legal standard used by the district

court.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999). “[W]e view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Id. Summary judgment “should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). “An issue is ‘genuine’ if there is

sufficient evidence on each side so that a rational trier of fact could resolve the

2
       The district court ruled that to the extent Mr. Parkhurst claimed injury as a
recipient of the newsletter, he lacked standing because he received a copy. But as
Mr. Parkhurst admitted in his summary-judgment response, he sought relief only
as the publisher of the newsletter, and he has not pursued relief as a subscriber on
appeal. Therefore, we need not give further consideration to the court’s ruling on
standing. The court did not rule on defendants’ assertion of Eleventh Amendment
immunity, apparently based on Mr. Parkhurst’s concession that he was not
seeking damages against defendants in their official capacities. Thus, we do not
consider Eleventh Amendment immunity. Our review is confined to mootness,
whether there was a constitutional violation, and whether defendants are entitled
to qualified immunity.

                                         -4-
issue either way[,]” and “[a]n issue of fact is ‘material’ if under the substantive

law it is essential to the proper disposition of the claim.” Thom v. Bristol-Myers

Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). We construe Mr. Parkhurst’s

pro se pleadings and court papers liberally but without acting as his advocate.

See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

                                          III

      We first address the district court’s ruling that Mr. Parkhurst’s claims as

publisher of the newsletter were mooted by the passage of a revised mail policy.

The district court based its mootness ruling on the new mail policy that took

effect on March 31, 2007, nearly one year after the conduct at issue here.

Mr. Parkhurst notes that the new policy contains a materially identical provision

regarding the rejection of mail intended for “other parties.” 3 In a supplemental

brief on this issue, defendants conceded that the revised policy does not render

the case moot. We accept that concession, as our review of the revised mail

policy does not permit us to say “with assurance that there is no reasonable

expectation that the alleged violation will recur,” which is one part of the test for

mootness when voluntary cessation of allegedly illegal conduct is at issue,




3
       Mr. Parkhurst also makes the contrary assertion that whether defendants
violated the mail policy is “completely irrelevant” to his claims except as to
damages. Aplt. Br. at 5 & n.7. We disagree.

                                          -5-
Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (quotation and alteration

omitted). We therefore reverse the district court’s mootness ruling. 4

                                         IV

      Having conceded the case is not moot, defendants argue that we can affirm

on all claims on the ground that there was no constitutional violation. As part of

its qualified-immunity analysis, which applies only to individual-capacity claims

for damages, see Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006), the

district court determined that there was no constitutional violation based on Jones

v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977). Before

turning to damages and the qualified-immunity issue, we examine Jones in the

context of Mr. Parkhurst’s official-capacity claims for injunctive relief.

      In Jones, the Union mailed packets of its publications in bulk to several

prisoners for redistribution to other prisoners. Prison officials refused to deliver

them on the ground that they were sent in bulk, although officials delivered bulk

mailings sent by Alcoholics Anonymous and the Jaycees. In concluding that the

prohibition on bulk mailing did not violate the prisoners’ First Amendment rights

to free speech or association (the Union had raised only an equal protection

challenge to the regulation, see id. at 130 n.7), the Court said:

4
       The district court’s mootness ruling necessarily was limited to
Mr. Parkhurst’s request for prospective injunctive relief from defendants in their
official capacities, as passage of the revised policy cannot moot his
individual-capacity claims insofar as he seeks damages for defendants’ past
conduct. We will address the damages claims in Section V below.

                                         -6-
      An examination of the potential restrictions on speech or association
      that have been imposed by the regulations under challenge,
      demonstrates that the restrictions imposed are reasonable, and are
      consistent with the inmates’ status as prisoners and with the
      legitimate operational considerations of the institution. To begin
      with, First Amendment speech rights are barely implicated in this
      case. Mail rights are not themselves implicated; the only question
      respecting the mail is that of bulk mailings. The advantages of bulk
      mailings to inmates by the Union are those of cheaper rates and
      convenience. While the District Court relied on the cheaper bulk
      mailing rates in finding an equal protection violation, it is clear that
      losing these cost advantages does not fundamentally implicate free
      speech values. Since other avenues of outside informational flow by
      the Union remain available, the prohibition of bulk mailing,
      reasonable in the absence of First Amendment considerations,
      remains reasonable.

Id. at 130-31 (footnotes, citation, and emphasis omitted). In a footnote to this

analysis, the Court quoted from the prison director’s affidavit, which indicated

that the mail regulation at issue prohibited prisoners from receiving packets of

material for redistribution but not publications sent to them directly by the

publisher. Id. at 131 n.8.

      Jones is not sufficiently on point to support the conclusion that defendants’

conduct was not unconstitutional. In Jones, the Court appeared to touch on the

Union’s First Amendment rights under the ban on bulk mailing when discussing

lost cost advantages, but the Union asserted no such rights under the First

Amendment; the Court was discussing the prisoners’ First Amendment rights to

receive mail sent in bulk. In the present case, Mr. Parkhurst asserted his First

Amendment right as the publisher of the newsletters, not as a prisoner-recipient.


                                         -7-
Moreover, in Jones the bulk packets were sent to a few prisoners, not to the

prison itself, and there is no indication that the individual items in the packets

were individually addressed. As noted above, the regulation at issue in Jones was

meant to prevent prisoners from receiving packets of materials for redistribution.

And there were concerns in Jones that (1) the bulk packets could contain

contraband, and it would be difficult to inspect every item; and (2) the

prisoner-to-prisoner solicitation of union membership, apparently aided by

distributing the mailed materials, raised security concerns because it was a

“legitimately prohibited activity.” Id. at 131-32 & n.8. Here, the newsletters

were not sent in bulk to other inmates for redistribution, they were individually

addressed, and their content is apparently not objectionable on security grounds

because the prison delivers newsletters that Mr. Parkhurst mails individually.

      Another distinction between Jones and this case is a facial one. The mail

policy on which defendants relied does not concern bulk mailings to prisoners, it

concerns mail intended for someone other than the addressee. Nonetheless, we

recognize that as applied, the policy was the ground for rejecting the newsletters,

which were sent in a presumably more cost-effective manner akin to the bulk mail

in Jones, and Mr. Parkhurst has another avenue for sending the newsletters—by

individually addressing them and mailing them separately. Thus, he has lost only

a cost advantage, which, under a broad reading of Jones, may not fundamentally

implicate free speech values of publishers.

                                          -8-
      But we do not read Jones that broadly. The Ninth Circuit, in Prison Legal

News v. Cook, a case Mr. Parkhurst relies on, distinguished Jones on a number of

the foregoing bases as well as others. See 238 F.3d 1145, 1149 (9th Cir. 2001).

Cook concerned a refusal to deliver a newsletter solely because of the mailing rate

used by the publisher, Prison Legal News—the rate applicable to “Standard A”

non-profit corporation mail, which the court considered to be a species of “bulk

mail.” Id. at 1146 & n.1. The court first rejected an argument, based on Jones,

that banning standard mail does not implicate the First Amendment rights of

either publishers or prisoners because it results in only the loss of cost

advantages, explaining that the speech at issue was core protected speech, not

commercial speech, and the receipt of unobjectionable mail does not implicate the

sort of penological interests that were advanced in Jones. Id. at 1149. The court

also stated that “paying a higher rate is not an alternative because the prisoner

cannot force a publisher who needs to use, and is entitled to use, the standard rate

to take additional costly steps to mail his individual newsletter.” Id. The court

then held “that tying the receipt of subscription non-profit newsletters to postal

service rate classifications is not rationally related to any legitimate penological

interest.” Id. at 1149-50 (applying test from Turner v. Safley, 482 U.S. 78, 89

(1987)).

      We agree with the court’s reasoning in Cook and take a narrow view of

Jones, which renders it inapplicable to the facts of this case. Thus, we cannot say

                                          -9-
that based on Jones, defendants’ conduct was constitutional. But we decline to

read Cook for the broad proposition Mr. Parkhurst advances, that prison officials

may not force a publisher to use “a more expensive method of mailing than bulk

mail.” Aplt. Br. at x. It appears that, as in Cook, Mr. Parkhurst’s newsletters are

noncommercial speech, as they consist mainly of summaries of prisoner litigation,

but it is unclear whether any were sent pursuant to subscription. 5 And Cook did

not concern a refusal to deliver a bulk packet of mail like Mr. Parkhurst attempted

to send. We therefore cannot say that based on Cook, defendants’ conduct was

unconstitutional. 6

      Moreover, the Cook court reached its decision on a developed record that

contained a number of proffered penological interests, each of which the court

rejected: “bulk mail is voluminous and generally of little value to prisoners;

substantial staff is required to sort, inspect and distribute bulk mail; bulk mail

poses security concerns; and bulk mail increases fire hazards.” Cook, 238 F.3d

at 1146. The record in this case is not sufficiently developed for a proper Turner



5
      The parties have not made an issue out of any relationship between
subscription status and the First Amendment, and we express no view on the
matter.
6
       The district court was of the view that Jones v. Salt Lake County, 503 F.3d
1147 (10th Cir. 2007), was the same case as Cook. But in Salt Lake County, we
concluded that prison officials’ failure to deliver a publisher’s subscription
magazine was due to negligence, not to the application of bulk-rate mailing
regulations. See id. at 1162-63. Thus, Salt Lake County involved different facts
and is inapposite.

                                         -10-
analysis, which requires a reasonableness inquiry: “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89;

see also Thornburgh v. Abbott, 490 U.S. 401, 404 (1989) (applying Turner to a

publisher’s First Amendment rights to send subscriptions to prisoners). Under

Turner and Thornburgh, there are four relevant considerations: (1) “whether the

governmental objective underlying the regulations at issue is legitimate and

neutral, and that the regulations are rationally related to that objective,”

Thornburgh, 490 U.S. at 414; (2) “whether there are alternative means of

exercising the right that remain open,” id. at 417 (quotation omitted); (3) the

scope of the “impact that accommodation of the asserted constitutional right will

have on others (guards and inmates) in the prison,” id. at 418; and (4) whether

there are any “obvious, easy alternatives [that] may be evidence that the

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

id. (quotations omitted).

      The first consideration is mandatory. See Turner, 482 U.S. at 89 (“[T]here

must be a valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it.”) (quotation omitted)

(emphasis added). And it presents a stumbling block here. Until filing their

supplemental brief, defendants never advanced any penological objective against

which the reasonableness of WPP #5.401 IV(C)(1)(k) can be judged. In their

                                          -11-
supplemental brief, they claim that the district court considered the Turner

factors, a proposition we reject, and that it “found the logical basis of the rule to

be the same as . . . the rule in Jones.” Aplee. Supp. Br. at 6. As discussed above,

there are a number of material distinctions between this case and Jones.

Defendants’ reliance on Jones is therefore a poor fit on the first prong of the

Turner analysis. Because defendants failed to identify in the district court a

legitimate penological interest served by their refusal to deliver the newsletters,

and they have not remedied this failure on appeal, we need not analyze the other

Turner factors. Instead, we remand on Mr. Parkhurst’s official-capacity claims

for injunctive relief for further development of the record and a proper Turner

analysis by the district court. This conclusion does not preclude us from

reviewing the district court’s grant of qualified immunity on Mr. Parkhurst’s

individual-capacity claims for damages, to which we now turn.

                                           V

      “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation

omitted). Although our review of the grant of qualified immunity is de novo,

Weigel v. Broad, 544 F.3d 1143, 1150 (10th Cir. 2008), cert. denied, 129 S. Ct.

2387 (2009), it differs from consideration of other summary judgment decisions:

                                          -12-
“When a defendant asserts qualified immunity at summary judgment, the burden

shifts to the plaintiff to show that: (1) the defendant violated a constitutional

right and (2) the constitutional right was clearly established.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir. 2009). We have discretion to determine “which of

the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 129 S. Ct.

at 818. As our foregoing discussion shows, it is unclear whether defendants

violated one of Mr. Parkhurst’s constitutional rights. Therefore, this is an

appropriate case to address the second prong of the qualified immunity analysis

first.

         “A plaintiff can demonstrate that a constitutional right is clearly established

by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of

authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.

2008) (citation and quotation omitted). The “weight of authority” standard

requires something more than “a handful of decisions from courts in other

circuits” that have not been “broadly accepted.” Christensen v. Park City Mun.

Corp., 554 F.3d 1271, 1278 (10th Cir. 2009). Mr. Parkhurst has relied only on

Cook to meet his burden on the second prong. As we have distinguished Cook on

a number of bases, we conclude that he has failed to meet his burden to show that

any constitutional right to the delivery of his newsletters in the manner that he

sent them was clearly established at the time of defendants’ conduct. Even if

                                           -13-
Cook were applicable, a lone case from another circuit does not satisfy the

“weight of authority” standard. See id.

      Mr. Parkhurst’s other arguments do not require a different outcome. He

claims that in the course of granting defendants qualified immunity, the district

court resolved a number of factual disputes against him, contrary to the court’s

duty in a summary judgment proceeding. Chief among these is his contention that

the refusal to deliver the 693 copies of his newsletter was not based on the mail

policy but was due to the content of the newsletters, which he characterizes as

embarrassing to defendants. However, this is nothing more than a contention

made in his summary judgment response brief, which was not sworn, and in any

event is a conclusory, self-serving statement unsupported by any evidence. In

fact, Mr. Parkhurst stated only that he “believes, and is prepared to prove” that

nondelivery was due to embarrassment. R., Doc. 18, at 4. At summary judgment,

the nonmoving party cannot rest on allegations but “must bring forward specific

facts showing a genuine issue for trial as to those dispositive matters for which he

or she carries the burden of proof.” Simms, 165 F.3d at 1326 (quotation and

alteration omitted).

      Mr. Parkhurst also points to a number of factual errors in the district

court’s decision, claiming they indicate that the district judge never read his

response to the summary judgment motion. Regardless of the accuracy of this

allegation, we have read his response and conclude that none of the alleged

                                          -14-
factual errors concern any material facts that preclude summary judgment in

defendants’ favor on qualified immunity.

                                    Conclusion

      The judgment of the district court is AFFIRMED with respect to the grant

of qualified immunity to defendants on Mr. Parkhurst’s individual-capacity claims

for damages. The judgment of the district court is REVERSED with respect to

mootness, and REVERSED and REMANDED for further proceedings consistent

with this Order and Judgment with respect to Mr. Parkhurst’s official-capacity

claims for injunctive relief. Mr. Parkhurst’s motion for leave to proceed without

prepayment of fees or costs is granted and we remind him of his continuing

obligation to make partial payments until his filing fee has been paid in full.



                                                    Entered for the Court


                                                    Jerome A. Holmes
                                                    Circuit Judge




                                        -15-
