                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 25, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    MICHAEL LEE STROPE, also known
    as Gordon Strope,

               Plaintiff-Appellant,

    ALAN KINGSLEY,

               Plaintiff,

    v.                                                  No. 08-3188
                                            (D.C. No. 5:06-CV-03150-JWL-JPO)
    JIM COLLINS, Mail Review Officer,                    (D. Kan.)
    Lansing Correctional Facility;
    DAVID R. MCKUNE, Warden,
    Lansing Correctional Facility;
    WILLIAM CUMMINGS, Secretary of
    Corrections Designee,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Plaintiff-appellant Michael Lee Strope, a prison inmate proceeding pro se,

appeals from the district court’s dismissal of this 42 U.S.C. § 1983 lawsuit, which

challenges a Kansas Department of Corrections (“KDOC”) mail censorship

regulation banning “sexually explicit materials.” We affirm. 1

                                         I.

      Kansas Administrative Regulation 44-12-313 provides that no inmate

within KDOC custody shall possess any “sexually explicit materials,” which is

defined in part as any picture “contain[ing] nudity,” if its purpose is “sexual

arousal or gratification.” R. Doc. 19-6 at 1. As relevant to this appeal, the

regulation defines nudity as “the depiction or display of any state of undress in

which the human . . . buttock . . . is less than completely and opaquely covered.”

Id. Enforcing this regulation, defendants, all KDOC employees, withheld from

Strope various magazines to which he subscribed because they contained images

of scantily clad women revealing their partially bare buttocks. In May 2006,

Strope filed this action under 42 U.S.C. § 1983, alleging violations of his First

Amendment right to receive information while in prison. 2 He claimed the

regulation’s definition of nudity was overly broad and that the regulation itself

was invalid because it served no valid penological purpose.



1
      Our jurisdiction derives from 28 U.S.C. § 1291.
2
       Strope also brought claims under the Eighth and Fourteenth Amendments,
but his appeal does not challenge the district court’s dismissal of those claims.

                                         -2-
      The defendants first moved to dismiss the complaint in October 2006,

claiming qualified immunity as to the First Amendment claim, but the district

court rejected the argument, finding Strope had asserted a constitutional violation.

Shortly thereafter, on March 1, 2007, the defendants moved for summary

judgment on the same grounds. They attached the offending photographs and

affidavits from defendants Jim Collins, who was responsible for censoring the

publications, and William Cummings, who reviewed Strope’s grievance appeals.

The district court denied the motion, however, finding the record insufficiently

developed on the issue of whether the challenged regulation served a legitimate

penological interest under Turner v. Safley, 482 U.S. 78 (1987). 3 Responding to

the court’s concerns, the defendants submitted a second motion for summary

judgment on March 10, 2008, this time attaching an affidavit from Roger

Werholtz, Secretary of KDOC, who promulgated the challenged regulation.

Werholtz testified that “depictions of nudity in any form generally tend to disrupt

the overall security of a correctional facility.” R. Doc. 100-2 at 2. He specified

3
       In Turner, the Supreme Court held “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” 482 U.S. at 89. It instructed lower courts to
consider the following factors in determining the validity of a challenged
regulation: (1) whether there is “a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify it,” id.
(quotation omitted); (2) “whether there are alternative means of exercising the
right that remain open to prison inmates,” id. at 90; (3) “the impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and the allocation of prison resources generally,” id.; and (4) whether
there are ready alternatives to the challenged regulation.

                                          -3-
such depictions can be used to harass staff members and he noted male inmates,

in particular, who receive pictures of bare male buttocks are at risk of violent

homophobic attacks. Finally, Werholtz claimed the regulation was a necessary

tool in managing and treating the sex offender inmate population.

      On June 12, 2008, the district court issued an order granting the

defendants’ second motion for summary judgment and dismissing the case. The

court acknowledged Strope’s First Amendment right to receive information while

in prison, but explained that he, as the plaintiff, bore the burden of disproving the

validity of the regulation infringing that right. After carefully considering the

record in light of Turner, it concluded he had failed to do so. Most importantly,

for purposes of this appeal, the district court refused to invalidate the regulation

simply because its definition of nudity banned a broader range of materials than

censorship regulations at other facilities. And it concluded Strope failed to

identify any obvious, easy alternatives that would accommodate his First

Amendment rights at a de minimis cost to the prison’s legitimate interest in

institutional security. Here Strope argues primarily that the regulation is

unreasonable and its definition of nudity an exaggerated response to prison

concerns. He also challenges a magistrate judge’s order denying his request to

amend the complaint, which we discuss in greater detail below.




                                          -4-
                                          II.

A.    Summary Judgment

      “We review de novo the grant of summary judgment to determine whether

any genuine issues of material fact were in dispute and, if not, whether the district

court correctly applied the substantive law at issue.” Zurich Am. Ins. Co. v.

O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916, 920 (10th Cir. 2008). Summary

judgment is appropriate “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).

      There are no significant differences between Strope’s appellate arguments

and those asserted in the trial court, except for his attack on the Werholtz

affidavit, which, he claims, only illuminates the defendants’ exaggerated response

to prison concerns. We are not entirely sure what this means, but it appears to be

another take on his challenge to the regulation’s definition of nudity as overbroad.

The district court addressed this argument, and all the others, in three

comprehensive and well-reasoned opinions, the last of which parsed the evidence

in exhaustive detail before concluding the defendants’ conduct passed

constitutional muster. We cannot improve on the district court’s excellent

analysis and, accordingly, affirm the summary judgment for substantially the




                                          -5-
same reasons set forth in the Court’s Memorandum and Order, dated June 12,

2008.

B.      Motion to Amend

        After consulting with Strope and the defendants, the district court imposed

a scheduling order under Federal Rule of Civil Procedure 16(b), which set a

deadline of September 4, 2007, for the filing of motions to join additional parties

or otherwise amend the pleadings. On November 21, 2007, two months beyond

this deadline, Strope moved to amend his complaint. While he did not provide a

reason for his tardy application or attach a proposed amendment, he did describe

generally the nature of his additional claims, which appeared to center on alleged

misconduct by defense counsel, Trevin Wray. Strope accused Wray of conspiring

with the defendants to unconstitutionally seize additional magazines and personal

items, including some of the exhibits and legal materials he was using to

prosecute this lawsuit. Construed liberally, the motion could be read as a request

to add a retaliation claim since Strope accused the defendants and Wray of

escalating their allegedly unconstitutional behavior shortly after losing their first

summary judgment motion in June 2007.

        The motion to amend was denied by order of a magistrate judge on January

8, 2008, because the magistrate concluded Strope had failed to demonstrate good

cause to amend the scheduling order under Rule 16(b)(4). The basis for Strope’s

appeal of this decision is unclear, although he appears to complain generally

                                          -6-
about what he views as the district court’s failure to manage the defendants

during the litigation. In the only part of his brief specifically addressing the

denial of his motion to amend, he argues “the court abused [its] discretion and

shown [sic] extreme favortism [sic] to the defendants which created extreme

prejudice to the plaintiffs when he denied the Motion for Leave to File an

Amended/Supplemental Claims [sic] to include on-going unlawful seizure of

publication [sic], and an ongoing denial of due process.” Aplt. Br. at 3D. The

defendants claim the issue is waived because Strope failed to object to the

magistrate judge’s order, but in any event it was not an abuse of discretion.

We reject the waiver argument, but agree there was no abuse of discretion in

denying the motion.

        Regarding waiver, Rule 72(a) provides “[a] party may not assign as error a

defect in [a magistrate’s] order not timely objected to.” We have a firm waiver

rule, Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005), but it does

not apply when “a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object.” Id. The magistrate

neglected to include in his January 8, 2008, order the customary language

advising Strope of his right to object and warning him that failure to do so would

waive appellate review. Therefore, we do not apply the firm waiver rule in this

case.




                                          -7-
      We review the district court’s denial of a motion to amend the complaint

for an abuse of discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109,

1113 (10th Cir. 2007). Under this standard, we will not reverse absent “a definite

and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Moothart v.

Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (quotation omitted). The district

court’s decision in this case was grounded in its finding that Strope failed to show

good cause for modifying the scheduling order under Rule 16(b)(4). 4 This was

not an abuse of discretion. Demonstrating good cause under the rule “requires the

moving party to show that it has been diligent in attempting to meet the deadlines,

which means it must provide an adequate explanation for any delay.” Id. The

record in this case supports the district court’s finding that Strope failed to even

“address the untimeliness of the motion [to amend].” R. Doc. 90 at 3. It also

reveals he was aware of any potential retaliation claims before the September 4,

2007, deadline — he complains repeatedly about the alleged seizure of his legal

materials on October 4, 2007, which obviously occurred after the deadline, but he

4
       We note this circuit has not yet decided “whether a party seeking to amend
its pleadings after the scheduling order deadline must show ‘good cause’ for the
amendment under Rule 16(b) in addition to the Rule 15(a) requirements.” Minter
v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). Neither party
raised this issue, however, and the district court’s denial under Rule 16 as
opposed to Rule 15 does not affect our disposition. Strope’s failure to provide
any excuse for his delay justified the denial of his motion to amend as a matter of
law. See, e.g., Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994)
(“[U]nexplained delay alone justifies the district court’s discretionary decision.”).

                                         -8-
also accuses the defendants of beginning the retaliation much earlier: “[A]ll of a

sudden after defendants were not able to dispose of this case on Summary

Judgment back in June, 2007, shortly after, both plaintiffs were retaliated against

. . . all in the same time-frame, August - October, 2007[.]” Id. Doc. 88 at 3. By

Strope’s own admission, the alleged retaliation occurred, or at least began, in time

for him to amend his complaint to add such a claim. Given this, and Strope’s

failure to specifically address good cause on appeal, we hold the district court

acted within its discretion in denying his motion to amend.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




                                         -9-
