COA Reinstates 1983 Claim Based on Prison's Denying Access to Religious Materials

Kay v. Bemis, No. 07-4032 (10th Cir. Sept. 11, 2007)

Prisoner brought pro se, in forma pauperis action against prison officials under Sec. 1983 alleging 1st Amendment and Religious Land Use and Institutionalized Persons Act violations for denying him certain religious materials; 4th Amendment claim that issuance of parole violation warrant was based on knowingly false information; 8th Amendment cruel and unusual punishment claim in retaliation for seeking legal counsel; and 14th amendment claim of due process deprivation during parole revocation hearing. The 10th reverses the district court and finds 2 of the claims plausibly state a legal claim for relief: (1) in his 1st Amendment claim, Plaintiff sufficiently alleged his religion and the district court prematurely determined that his beliefs were not sincere. Plaintiff did not need to show that the items were necessary to his practice; and (2) P’s claims under the RLUIPA were not the same as his 1st Amendment claims, and the district court failed to discuss them before dismissing them.