                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 27 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RUSSELL BERGER,

                Plaintiff-Appellant,

    v.                                                   No. 00-1413
                                                     (D.C. No. 00-M-935)
    SUE WHITE, individually and in                        (D. Colo.)
    her official capacity; SHERIFF’S
    EMPLOYEE C-9737, in his individual
    and official capacity,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Russell Berger, a pretrial detainee in the Arapahoe County

Detention Facility in Englewood, Colorado, proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights claims under Fed. R. Civ. P.

12(b)(6). We affirm in part and remand in part.

      Berger’s complaint alleged that defendant employees of the detention

facility violated his First, Sixth, and Fourteenth Amendment rights by (1) placing

restrictions on his outgoing legal mail; (2) opening his incoming legal mail on

one occasion; (3) opening his mail from Columbia Law School and the American

Civil Liberties Union and delivering the contents but not the envelopes;

(4) returning a catalog to the sender on the grounds that it was not pre-approved;

and (5) denying his request to receive subscription copies of a newspaper and

news magazine.

      Defendants moved for dismissal on two grounds: failure to state a claim

upon which relief can be granted and qualified immunity. In briefing defendants’

motion, the parties submitted additional materials for the court’s consideration.

The district court declined to consider these materials, however, and addressed

the complaint solely for sufficiency under Fed. R. Civ. P. 12(b)(6). The court




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determined Berger’s complaint was insufficient as a matter of law and dismissed

the action.   1



                                  Standard of Review

       We review the denial of a Rule 12(b)(6) motion to dismiss     de novo ,

applying the same standard as the district court, accepting the well-pleaded

allegations of the complaint as true and construing them in the light most

favorable to the plaintiff.   Benefield v. McDowall , 241 F.3d 1267, 1270 (10th Cir.

2001). “A complaint should not be dismissed under Rule 12(b)(6) unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.    Id. (quotations and citations omitted).




1
       The district court’s dispositive ruling dealt with Berger’s amended
complaint. In earlier proceedings, the district court issued an order directing
Berger to file an amended complaint that “clarifies the claim for relief that he
is asserting, the personal participation of each defendant, and the acts each
defendant allegedly committed.” R., doc. 9 at 3. After reviewing the Amended
Complaint under 28 U.S.C. § 1915(e)(2)(B) for allegations of personal
participation, the court dismissed the claims against defendants Patrick Sullivan,
Jr. (Arapahoe County Sheriff) and Captain Bay.      Id. , doc. 16 at 3.

       Berger attempts to raise issues on appeal which relate to Sullivan and Bay.
In spite of the district court’s specific instructions, Berger’s amended complaint
failed to allege an affirmative link between the alleged constitutional violations
and these defendants. Accordingly, the district court properly dismissed the
claims against Sullivan and Bay.     See Mitchell v. Maynard , 80 F.3d 1433, 1441
(10th Cir.1996) (stating that supervisors are not liable under § 1983 for the acts of
their subordinates, absent personal participation, control or direction, or failure to
supervise).

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       In determining whether dismissal is proper, we must accept the
       allegations of the complaint as true and we must construe those
       allegations, and any reasonable inferences that might be drawn from
       them, in the light most favorable to the plaintiff. Further, we must
       liberally construe the allegations of a pro se complaint.

Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999).


                                     Discussion

       Section 1983 provides for a civil cause of action against any person who,

under color of state law, deprives the plaintiff of his or her “rights, privileges, or

immunities secured by the Constitution and laws” of the United States. Thus, the

issue before us is whether the allegations in the complaint establish a violation of

a constitutional right.

       As the district court determined, the majority of Berger’s allegations fail to

rise to the level of a constitutional violation. Concerning Berger’s outgoing mail,

we have concluded that prisoners need not be provided “with an unlimited right to

free postage in connection with the right of access to the courts. Reasonable

regulations are necessary to balance the rights of prisoners with budgetary

considerations.”   Twyman v. Crisp , 584 F.2d 352, 359 (10th Cir. 1978) (citations

omitted). Moreover, isolated incidents of opening constitutionally protected legal

mail, “without any evidence of improper motive or resulting interference with

[plaintiff’s] right to counsel or to access to the courts,” do not support a civil

rights claim.   Smith v. Maschner , 899 F.2d 940, 944 (10th Cir. 1990). Finally,

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a “complaint about undelivered catalogues fails to raise an issue of constitutional

magnitude.” Id.

       However, Berger’s final claim, alleging interference with his right of

access to subscription news publications, is sufficient to survive scrutiny under

Rule 12(b)(6). There is a legitimate First Amendment interest in communication

between publishers and inmates “who, through subscription willingly seek [the

publishers’] point of view.”     Thornburgh v. Abbott , 490 U.S. 401, 408 (1989).

“In the First Amendment context, [however], some rights are simply inconsistent

with the status of a prisoner or ‘with the legitimate penological objectives of

the corrections system.’”      Shaw v. Murphy , 121 S. Ct. 1475, 2001 WL 387410, *3

(2001) (quoting Pell v. Procunier , 417 U.S. 817, 822 (1974)).

       In balancing the inmates’ interests against those of correctional institutions

seeking to regulate the flow of subscription publications, a court is to consider:

(1) “whether the governmental objective underlying the regulations at issue is

legitimate and neutral, and [whether] 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 to prison inmates,”   id. at 417; and

(3) “the impact that accommodation of the asserted constitutional right will have

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




                                            -5-
       Berger’s complaint alleges that defendants refused his request for

subscription copies of   Newsweek and the Rocky Mountain News , citing the jail

handbook as authority for their decision.    See R., doc. 12 at 4. Liberally

construing Berger’s pro se filing, we cannot conclude that he failed to allege

sufficient facts to state a First Amendment claim.   2
                                                         The district court therefore

erred in dismissing this claim under Fed. R. Civ. P. 12(b)(6).


                                       Conclusion

       For the reasons stated above, this court AFFIRMS in part, REVERSES

in part, and REMANDS to the district court for further proceedings consistent




2
       In the filed materials which the court declined to consider, there is
information relating to the merits of Berger’s First Amendment claim. Berger
contends that he has no access to newspapers and news magazines.            See R., Doc.
27 at 7-8. In reply, defendants submitted an affidavit stating that news
publications are readily available to Berger, primarily in his pod’s dayroom.        Id. ,
Doc. 31, Ex. C at 2-5. On remand, it will be the district court’s task to determine
the significance of this apparent factual dispute under the three-prong       Thornburgh
test.

       Additionally, defendants’ affidavit states that, after commencement of this
action, they authorized Berger’s subscription to  Newsweek . Although this action
will affect the extent of Berger’s claim for injunctive relief, it does not moot his
claim for damages. See Green v. Branson , 108 F.3d 1296, 1300 (10th Cir. 1997).

                                            -6-
with this order and judgment. Berger’s request for in forma pauperis status

is GRANTED.


                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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