
    Catherynne Whtyefawn KENDRICK, Appellant, v. Martin POPE, Classification Administrator, Arkansas Department of Correction; Pratt, Classification Administrator, Arkansas Department of Correction; Julie Redd, Classification Administrator, Arkansas Department of Correction; Shawna Reid, Classification Administrator, Arkansas Department of Correction; Richardson-Beshears, Classification Administrator, Arkansas Department of Correction; Patricia A. Roberts, Classification Administrator, Arkansas Department of Correction; Mickey Robertson, Classification Administrator, Arkansas Department of Correction; Santa Clause Runyun, Classification Administrator, Arkansas Department of Correction; L.K. Sluder, Classification Administrator, Arkansas Department of Correction; Jim Smith, Classification Administrator, Arkansas Department of Correction; Judith Steed, Classification Administrator, Arkansas Department of Correction; Lori Tacker, Classification Administrator, Arkansas Department of Correction; Janet Tiner, Classification Administrator, Arkansas Department of Correction; Christy Townsend, Classification Administrator, Arkansas Department of Correction; Julia Webber, Classification Administrator, Arkansas Department of Correction; Pam Wilson, Classification Administrator, Arkansas Department of Correction; Leslie H. Zomant, Classification Administrator, Arkansas Department of Correction; Kathleen M. Dechant, Classification Administrator, Arkansas Department of Correction; Roy Agee, Classification Administrator, Arkansas Department of Correction; Bobbie Allison, Classification Administrator, Arkansas Department of Correction; Candice Ashby, Classification Administrator, Arkansas Department of Correction; Roger L. Ayers, Classification Administrator, Arkansas Department of Correction; Ronald Bailey, Classification Administrator, Arkansas Department of Correction; Henry Boyce, Classification Administrator, Arkansas Department of Correction; Maggie Capel, Classification Administrator, Arkansas Department of Correction; William Caraway, Classification Administrator, Arkansas Department of Correction; Phillip W. Cargill, Classification Administrator, Arkansas Department of Correction; Bernstein Coleman, Classification Administrator, Arkansas Department of Correction; C. Corrington, Classification Administrator, Arkansas Department of Correction; Judy Taylor, Classification Administrator, Arkansas Department of Correction; June Daniels, Classification Administrator, Arkansas Department of Correction; Wayland, Classification Administrator, Arkansas Department of Correction; Jeff Deen, Classification Administrator, Arkansas Department of Correction; Linda Dixon, Classification Administrator, Arkansas Department of Correction; Amanda C. Dutton-Jackson, Classification Administrator, Arkansas Department of Correction; Linda Dykes-Cullum, Classification Administrator, Arkansas Department of Correction; Stephanie England, Classification Administrator, Arkansas Department of Correction; Nurzuhal Faust, Classification Administrator, Arkansas Department of Correction; Cherry Garrett, Classification Administrator, Arkansas Department of Correction; James Gibson, Classification Administrator, Arkansas Department of Correction; William Jones, Classification Administrator, Arkansas Department of Correction; Wendy Kelley, Classification Administrator, Arkansas Department of Correction; Crystal Lavender, Classification Administrator, Arkansas Department of Correction; John Maples, Classification Administrator, Arkansas Department of Correction; Deborah Masters, Classification Administrator, Arkansas Department of Correction; Larry May, Classification Administrator, Arkansas Department of Correction; P. McCoy, Classification Administrator, Arkansas Department of Correction; S.E. McCrory, Classification Administrator, Arkansas Department of Correction; Sonya Whitefield McGinnis-Douglas, Classification Administrator, Arkansas Department of Correction; Larry Norris, Classification Administrator, Arkansas Department of Correction; Dexter Payne, Classification Administrator, Arkansas Department of Correction; Petit, Classification Administrator, Arkansas Department of Correction; Kathy Pirano, Classification Administrator, Arkansas Department of Correction; Defendants, Lavonda K. Donavion, Sgt., McPherson Unit, ADC; Sara E. Martin, Corporal, McPherson Unit, ADC, Appellees. Bobby Coleman, Classification Administrator, Arkansas Department of Correction; C. Compton, Classification Administrator, Arkansas Department of Correction, Defendants.
    No. 11-1564.
    United States Court of Appeals, Eighth Circuit.
    Submitted: Aug. 15, 2011.
    Filed: March 1, 2012.
    Rehearing and Rehearing En Banc Denied April 12, 2012.
    
    
      Brenna J. Ryan, Baldwinsville, NY, for appellant.
    Sherri L. Robinson, AAG, Little Rock, AR, for appellee.
    Before LOKEN, BYE, and COLLOTON, Circuit Judges.
    
      
       Judges Riley, Wollman, Colloton, Gruender and Benton would grant the petition for rehearing en banc.
    
   PER CURIAM.

Arkansas inmate Catherynne Whtyefawn Kendrick appeals following the district court’s disposition of her claims against Sergeant Lavonda K. Donavion, the sole remaining defendant in this 42 U.S.C. § 1983 action. Upon careful review, we conclude that Kendrick administratively exhausted her constitutional claims arising from the confiscation of her Catholic Bible, rosary beads, and other religious materials during a November 2007 cell shakedown, and the subsequent failure to return these items. We also conclude that—-on the present record—trialworthy issues exist on these claims. See Montin v. Estate of Johnson, 636 F.3d 409, 412 (8th Cir.2011) (summary judgment standard of review); King v. Iowa Dep’t of Corr., 598 F.3d 1051, 1052 (8th Cir.), cert. denied, — U.S.—, 131 S.Ct. 499, 178 L.Ed.2d 296 (2010) (de novo review of administrative exhaustion).

Accordingly, we reverse as to the claims against Donavion, and we remand for further proceedings consistent with this opinion. We also grant appellee Corporal Sarah E. Martin’s motion to dismiss; we deny Kendrick’s motion to “reinstate” Martin; and we deny Kendrick’s remaining motions for relief, which in part raise claims and allegations that can be addressed on remand.

COLLOTON, Circuit Judge,

concurring in part and dissenting in part.

The district court, adopting a fourteen-page report and recommendation of a magistrate judge, dismissed Catherynne Kendrick’s claims against Sergeant Lavonda Donavion of the Arkansas Department of Corrections (“ADC”). During the relevant period, Kendrick was housed in punitive segregation at an Arkansas correctional facility due to violations of prison disciplinary rules. “After a lengthy procedural history, the District Court narrowed Kendrick’s numerous claims against multiple defendants to two claims against one defendant: 1. That Donavion destroyed her Catholic Bible; and 2. confiscated her rosary beads.” Appellant’s Supplemental Br., at v. Kendrick claims that Donavion’s actions violated Kendrick’s constitutional right to the free exercise of religion under the First and Fourteenth Amendments.

The district court dismissed the claim concerning confiscation of a Catholic Bible without prejudice for failure to exhaust administrative remedies. The court dismissed the claim concerning rosary beads with prejudice on the merits. The majority summarily reverses the judgment of the district court with no meaningful explanation. I would affirm.

Before filing suit under 42 U.S.C. § 1983, an inmate must exhaust all available remedies. 42 U.S.C. § 1997e(a). If a claim is not exhausted, then the district court must dismiss it. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.2003).

The district court correctly ruled that Kendrick did not properly exhaust her claim about confiscation of a Catholic Bible. Donavion presented evidence that Kendrick did not exhaust the grievance remedies available to her within the correctional system. R. Doc. 428-7. The only pertinent evidence cited by Kendrick in the district court, see R. Doc. 438, at 6, was a grievance form that complained about the confiscation of four items, none of which was a Catholic Bible. R. Doc. 437-2, 437-3. The district court thus correctly concluded that the Catholic Bible claim was not exhausted. On appeal, Kendrick submits for the first time two grievance forms that refer to a Catholic Bible. Appellant’s App. Exh. 2-C-l, 2-D-l. These documents were not presented in the district court, and they thus cannot establish error in the district court’s exhaustion ruling. Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir.2004); Griffin v. Super Valu, 218 F.3d 869, 871 (8th Cir.2000) (“We do not consider as part of the record ... documents upon which [appellant] attempt to rely that were not before the district court.”). The new documents, moreover, show only that Kendrick completed the first two steps of the three-stage grievance process, not that she exhausted all available remedies. See R. Doc. 428-7, at ¶ 5, 437-1. The district court’s dismissal without prejudice should be affirmed.

On Kendrick’s second claim, the court concludes that there is a “trialworthy issue[]” on her contention that Donavion violated Kendrick’s constitutional rights by denying her access to rosary beads while in punitive segregation. But even assuming there is a disputed issue of fact about whether Donavion (as opposed to another correctional officer) confiscated Kendrick’s rosary beads, there is no point in conducting a trial to resolve that factual dispute if Donavion is entitled to judgment as a matter of law. Despite ordering supplemental briefs on the dispositive legal question, the majority inexplicably declines to address it.

The district court’s judgment should be affirmed, because Donavion’s alleged confiscation of rosary beads did not violate the Constitution and, at a minimum, Donavion is entitled to qualified immunity—which is both a defense to liability and an entitlement not to stand trial or to face the other burdens of litigation. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1945-46, 173 L.Ed.2d 868 (2009). ADC policy forbids an inmate in punitive segregation to possess any item, including rosary beads, that could be wrapped around the neck to commit suicide. Appellee’s App. 32, 42, 73. Assuming that this policy burdened Kendrick’s right to exercise her religion, the policy is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

There is a “valid, rational connection,” id, 107 S.Ct. 2254, between the prison policy forbidding possession of property that could facilitate suicide and the State’s legitimate interest in security and safety in the prison. See Hall v. Bellmon, 935 F.2d 1106, 1113 (10th Cir.1991) (affirming district court’s conclusion that prison regulations prohibiting inmates from possessing “items that can be worn around the neck, including religious items, were, on their face, reasonably related to the legitimate penological interests in ... preventing suicide attempts.”). Kendrick identifies no alternative policy that would fully accommodate her rights “at de minimis cost to valid penological interests.” Turner, 482 U.S. at 91, 107 S.Ct. 2254. Accommodating Kendrick would require correctional officers to devote limited resources to monitoring a safety risk that the policy otherwise eliminates. See Appellant’s Br. 5 (proposing that a guard could check on inmates hourly). Kendrick has alternative means of exercising her religion while in punitive segregation: She is free to pray the rosary without the beads and to use another method to keep track of the prayers. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (upholding prison policy as reasonable, even though it prohibited one form of religious observance, because inmates could participate in other religious ceremonies); Murphy v. Missouri Dept. of Com, 372 F.3d 979, 983 (8th Cir.2004) (“A prisoner need not be afforded [her] preferred means of practicing [her] religion as long as [she] is afforded sufficient means to do so.”). There is no need for a trial to resolve factual disputes about the reasonableness of the prison policy as a matter of constitutional law.

At a minimum, Donavion is entitled to qualified immunity. It was not clearly established in 2007 that her enforcement of the ADC policy violated the First Amendment. Even assuming there is room for debate about whether the policy was reasonably related to legitimate penological objectives, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, — U.S.—, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation omitted). An objectively reasonable correctional officer in Donavion’s position could have believed that her enforcement of a policy that prohibited possession of rosary beads in punitive segregation was constitutional. See Hall, 935 F.2d at 1113 (holding that prison policy barring Native American inmate from wearing a bear tooth necklace and medicine bag around his neck due to security concerns, including risk of suicide, did not violate First Amendment); Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th Cir.1991) (holding that prison regulation prohibiting inmates from possessing rosary beads in cells did not violate First Amendment). Donavion is therefore entitled to immunity from liability, and also to avoid the burdens of litigation and trial that the majority opinion imposes. 
      
       I concur in the court's resolution of the pending motions.
     