Full Opinion

United States Court of Appeals For the Eighth Circuit ___________________________ No. 24-1681 ___________________________ John William Scharnhorst, III Plaintiff - Appellee v. Sheriff Jay Cantrell, Washington County Detention Center; Major Randall Denzer, Washington County Detention Center Defendants - Appellants Lieutenant Kevin East, Washington County Detention Center Defendant Lieutenant Nolan Ake, Washington County Detention Center Defendant - Appellant Lieutenant Amanda Arnold, Washington County Detention Center Defendant ____________ Appeal from United States District Court for the Western District of Arkansas - Fayetteville ____________ Submitted: January 14, 2025 Filed: November 12, 2026 ____________ Before GRASZ, STRAS, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge. John William Scharnhorst, III spent several months as a pretrial detainee at Washington County Detention Center. During that time, he had limited access to books, newspapers, and religious materials. He sued pro se under 42 U.S.C. § 1983, alleging that these restrictions violated his First Amendment rights. The district court denied summary judgment and qualified immunity to Sheriff Jay Cantrell, Major Randall Denzer, and Lieutenant Nolan Ake (the WCDC Defendants). An administrative panel of this court appointed counsel to represent Scharnhorst on appeal. We recite the facts the district court found or likely assumed, “to the extent they are not ‘blatantly contradicted by the record.’” Wenzel v. City of Bourbon, 899 F.3d 598, 601 (8th Cir. 2018) (citation omitted). WCDC had problems with inmates using paper to jam locks, flood cells, impair ventilation, conceal contraband, make weapons, and cover lights, windows, and cameras. To reduce the amount of paper in the facility, WCDC stopped providing physical newspapers and limited the number of books an inmate could have. According to WCDC’s handbook, an inmate could have up to four books in his cell at a time—three paperbacks from the book cart and one religious text. The book cart is stocked with donations, but WCDC removes damaged books. This often left the cart understocked, with almost “no literature” beyond “various copies of the Bible.” The cart rotates between cell blocks, but when the prison implemented its Covid-19 protocol, it was rarely moved. Books were also being used to smuggle contraband into WCDC, so inmates cannot order their own books, nor can outsiders gift books to a specific inmate. As part of its effort to reduce paper, WCDC partnered with a tech company that provides the facility with communal kiosks and tablets. Access to these devices is limited to 30-minute increments for kiosks and 15-minute increments for tablets. -2- When time expires, an inmate is locked out of the device for a “cool down” period unless he purchases a “Gold Pass” for more time. Scharnhorst accessed an electronic device more than 80% of the days he was at WCDC. Books are available electronically on the tablets, and staff members upload a digital scan of the local newspaper to the tablets and kiosks daily. 1 A newspaper was uploaded almost every day Scharnhorst was at WCDC, though there were a few days when it was mislabeled, added late, or never uploaded. As for religious materials, WCDC’s policy allows inmates to keep one religious text in their cell. Chaplains are prohibited from “delivering mail, notes, books, papers, [or] other materials,” to inmates, but they can give requested religious materials to prison staff, who “will then share the requested materials with the detainee.” Scharnhorst asked for the King James Bible but did not get it. He also requested other religious materials, which WCDC staff sometimes delivered and sometimes did not. Inmates can still write and send paper mail, and incoming mail is scanned and uploaded to the electronic devices. The district court, adopting the magistrate’s report and recommendation, granted WCDC summary judgment on Scharnhorst’s claim that failing to upload the newspaper violated his constitutional rights. It also granted summary judgment to two other defendants who neither drafted WCDC’s policies nor refused requests for more reading materials. But the district court denied summary judgment and qualified immunity to Lieutenant Ake, Major Denzer, and Sheriff Cantrell, finding there were material disputes of fact about whether and how they enforced WCDC’s policies and that if they enforced them as Scharnhorst alleged, they violated clearly established law. 1 The district court preliminarily enjoined the defendants and ordered them to upload daily newspapers. We agree with the magistrate’s conclusion, adopted by the district court, that the injunction is now moot. See Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 835 (8th Cir. 2009). -3- “When reviewing a district court’s denial of qualified immunity, we accept as true the facts that the district court found were adequately supported, as well as the facts that the district court likely assumed, to the extent they are not ‘blatantly contradicted by the record.’” Wenzel, 899 F.3d at 601 (citation omitted). We retain jurisdiction to decide whether those facts “‘demonstrate the deprivation of a constitutional or statutory right’ and if ‘the right was clearly established at the time of the deprivation.’” Peterson v. Heinen, 89 F.4th 628, 633 (8th Cir. 2023) (citation omitted). “We can address the qualified-immunity requirements in any order,” Beard v. Falkenrath, 97 F.4th 1109, 1116 (8th Cir. 2024), and because we find that the WCDC Defendants did not violate any clearly established right, we reverse the denial of qualified immunity. To show that a right was clearly established, Scharnhorst “must point to controlling authority, or a robust consensus of persuasive authority,” which put the WCDC Defendants on notice that their actions violated his rights. Joseph v. Wheeler, 144 F.4th 1111, 1114 (8th Cir. 2025). The district court relied on Human Rights Defense Center v. Baxter County (“Baxter I”) as clearly establishing that “‘a de facto permanent ban’ on inmate access to communication with outsiders would present a serious constitutional issue.” 999 F.3d 1160, 1165 (8th Cir. 2021) (per curium) (citing Beard v. Banks, 548 U.S. 521, 535 (2006); Overton v. Bazzetta, 539 U.S. 126, 134, (2003)). Scharnhorst’s allegation that he was denied access to reading materials is not “squarely governed” by Baxter I’s warning about total bans on outside communication. L.G. through M.G. v. Columbia Pub. Schs., 990 F.3d 1145, 1147 (8th Cir. 2021); see also Zorn v. Linton, 607 U.S. 568, 574 (2026) (per curiam) (reversing judgment vacating the grant of qualified immunity where the court “failed to identify a case where an officer taking similar actions in similar circumstances ‘was held to have violated’ the Constitution” (citation omitted)). WCDC inmates can send paper mail, are allowed two emails a week at no cost, and can purchase more. Incoming paper mail is scanned and uploaded to the tablets and kiosks, which Scharnhorst accessed on more than 80% of days. These policies are not a “de facto -4- ban” on communication with outsiders. Cf. Banks, 548 U.S. at 527, 535 (denying inmates “all access to newspapers, magazines, and photographs” while in high security holding was “severe” but not “a de facto permanent ban”); Overton, 539 U.S. at 134 (banning visitors for inmates with multiple substance abuse violations, “a bar which may be removed after two years,” did not amount to a de facto permanent ban on all visitation). Scharnhorst counters that the newspaper was not regularly uploaded, WCDC staff did not deliver religious materials, and the book cart was depleted. Some of these allegations are blatantly contradicted by the record, which shows WCDC uploaded the newspaper most days and that Scharnhorst received the chaplain’s religious pamphlets, read them, and shared them with other inmates. See, e.g., McManemy v. Tierney, 970 F.3d 1034, 1038 (8th Cir. 2020) (reviewing taser logs to foreclose factual dispute); Getz v. Swoap, 833 F.3d 646, 655–56 (6th Cir. 2016) (radio logs). But more to the point, Scharnhorst’s allegations are not like the facts hypothesized in Baxter I. 2 See L.G., 990 F.3d at 1147 (“[E]xisting circuit precedent” must involve “sufficiently similar facts that squarely governs the situation.”). Baxter I and its companion appeal Baxter II applied Turner to consider whether a “blanket ban on [a] publisher’s materials violated the publisher’s First Amendment rights.” Hum. Rts. Def. Ctr. v. Baxter County, 129 F.4th 498, 502 (8th Cir. 2025) (“Baxter II”); see also Turner v. Safley, 482 U.S. 78, 89–91 (1987) (identifying factors to consider when deciding whether a challenged prison policy is “reasonably related to legitimate penological interests”). The case involved a publisher claiming their right to free speech was violated by a county policy that “prohibited inmate access to all [of HRDC’s] publications.” Baxter II, 129 F.4th at 504. That is neither the right 2 Baxter I said only that “whether HRDC proved its assertion that the postcard- only policy results in ‘a de facto total ban’ on Jail inmates accessing HRDC’s materials” was an important question, necessary to resolving the Turner analysis. 999 F.3d at 1165–66. It remanded the case so the district court could address the issue. Id. at 1166. -5- Scharnhorst asserts nor the policy WCDC enforced. The Baxter opinions also noted that the facts there “present[] a vestigial dilemma from the pre-digital communication era,” Baxter I, 999 F.3d at 1162, where inmates “could not access the internet or other electronic reading options like a kiosk or tablet,” Baxter II, 129 F.4th at 504. So if anything, Baxter I and II “indicat[e] that the law isn’t as clearly established in this area as the district court concluded.” Joseph, 144 F.4th at 1114. The other religious material cases Scharnhorst cites on appeal involve prison policies banning one religious text while allowing others. See Cruz v. Beto, 405 U.S. 319, 320 n.1 (1972) (providing Catholic and Jewish bibles while refusing to let Buddhist prisoner borrow his religious book violated the First Amendment); Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997) (imposing a blanket ban on all materials from one religious sect, without review of their individual content, violated the First Amendment). That is not what happened here, so these cases do not clearly establish a constitutional violation. See Zorn, 607 U.S. at 574. Scharnhorst alternatively argues that the County defendants waived qualified immunity on his claim that WCDC staff did not deliver religious materials. He says they did not cite cases or discuss whether Scharnhorst had a clearly established right to receive the chaplain’s materials below, so we should not consider it now. But the officers invoked qualified immunity in the district court, and it is Scharnhorst’s burden to demonstrate that the law defining his right is clearly established. See Morgan v. Robinson, 920 F.3d 521, 524 (8th Cir. 2019) (en banc). The dissent points to the district court’s finding that “Scharnhorst and other detainees at the WCDC cannot obtain access to any religious materials at all.” (emphasis in original). That is also blatantly contradicted by the record. As we noted earlier, Scharnhorst had access to kiosks and tablets on over 80% of the days he was detained. The tablets contained Bibles and, as the dissent concedes, other religious materials. Scharnhorst also was entitled to one religious text, and he admitted there were Bibles on the book cart. And there are numerous record citations showing Scharnhorst had access to religious materials from August 2022 on. See, -6- e.g., R. Doc. 91-3 (emails between Scharnhorst and the prison chaplain) at 47 (“Thank you for the booklet ‘How good is good enough,[’] I read it and passed it on to another detainee.”); at 81 (“I’ve really enjoyed the ‘Face to Face’ I got it from you and am almost finished with it.”); at 86 (“I’m reading a little book right now called ‘A shepherd looks at Psalm 23[.]’ Have you heard of it?”). There were undoubtedly limitations placed on Scharnhorst’s access to books, newspapers, and religious materials, but he was not subject to a “permanent de facto ban.” Those are simply not the facts of this case, and Scharnhorst has not shown a violation of clearly established law. We reverse the denial of qualified immunity to the WCDC Defendants and remand for further proceedings consistent with this opinion. We thank appointed counsel for his work on this appeal. GRASZ, Circuit Judge, concurring in part and dissenting in part. I join the court’s opinion except its reversal of the district court’s denial of qualified immunity related to Scharnhorst’s claim alleging improper restrictions on his access to religious materials. In its Opinion and Order the district court stated, “there are facts in the summary judgment record to suggest that Mr. Scharnhorst and other detainees at the WCDC cannot obtain access to any religious materials at all, per the jail’s policy and consistent with the interpretation of the policy by Defendant Ake and others.” (emphasis in original). The extent of Scharnhorst’s access to religious materials is unclear and disputed, at best. Taking the facts in the light most favorable to Scharnhorst, as we must, Willis v. Mills, 141 F.4th 905, 911 (8th Cir. 2025), he lacked meaningful access to religious materials through any medium. Consider first what the record has to say about Scharnhorst’s physical access. Defendants concede that the book cart was often idled in one block for “extended” -7- periods of time and sometimes simply “not used.” And while Scharnhorst admits there were various copies of the Bible on the book cart, he alleges the book cart “was nearly impossible to get.” Recognizing the issue, the district court found there was a question of material fact whether the physical Bibles “were, in fact, available to the detainees” because Defendants failed to offer evidence showing how often the book carts were available. Thus, based on the record before us, the district court’s finding is not “blatantly contradicted” by the record. The court’s characterization of Scharnhorst’s access to religious materials via kiosks and electronic tablets fares no better. According to the court, “Scharnhorst had access to kiosks and tablets over 80% of the days he was detained,” so he must have had access to religious materials. But there are several problems with this analysis. First, it entails an inference in favor of the wrong party. Second, Scharnhorst’s overall access during “the days he was detained” is largely irrelevant to our analysis because the pertinent timeframe for Scharnhorst’s claims is December 2021 to July 15, 2022. Third and most important, Scharnhorst’s access to the kiosks and his access to the tablets cannot be lumped together. The district court found, as a factual matter, that “[t]here is no dispute” the kiosks did not contain books or religious materials. Defendants do not even seem to contest this finding. Indeed, they have only ever shown that the tablets contained “a collection of free books, including various religious materials.” So, in other words, Scharnhorst’s access to the kiosks is irrelevant. To be sure, it appears Scharnhorst did have some potential access to religious materials via tablets. But his ability to actually use the tablets (like his access to the book cart) is unclear and disputed. Scharnhorst alleges that he was, at least at times, allowed only one hour a day of potential access and that the tablets were “invariably [] shared with an unknown number of other detainees.” Notably, the district court found, “material disputes of fact remain as to how many tablets there are and whether the WCDC’s policies limiting access to these devices mean they are not viable alternatives to hard-copy sources.” These factual disputes are critical since illusory access is no access. See Baxter I, 999 F.3d at 1165. -8- Because factual disputes lie at the heart of the claim, and because we are precluded from reviewing the district court’s finding that the disputes are genuine, Taylor v. St. Louis Community College, 2 F.4th 1124, 1126–27 (8th Cir. 2021), I would conclude we lack jurisdiction in this interlocutory appeal to address the assertion of qualified immunity related to Scharnhorst’s claim challenging restrictions on his access to religious materials. And without jurisdiction, we cannot assess whether Scharnhorst’s appellate brief satisfies his burden of showing clearly established law for purposes of the second prong of qualified immunity analysis. In the end, the court disregards certain parts of the record and reconstructs others in Defendants’ favor to overcome the district court’s conclusion that there was a “de facto ban” on Scharnhorst’s access to religious materials. Respectfully, that is not our role. The district court found a de facto ban on detainees’ access to religious materials and, in my view, a long line of precedent puts any jail official on fair notice that a policy or conduct that effectively institutes such a ban is a violation of the First Amendment. O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987) (“Inmates clearly retain protections afforded by the First Amendment . . . including . . . the free exercise of religion.”); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524 (2022) (The Free Exercise Clause “protects not only the right to harbor religious beliefs inwardly and secretly,” but “[i]t does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of (or abstention from) physical acts,” such as accessing and reading religious materials (cleaned up)); Salaam v. Lockhart, 905 F.2d 1168, 1170 (8th Cir. 1990) (“[P]risoners retain the right to the free exercise of religion.”); see also Overton, 539 U.S. at 135 (alternative means of exercising a constitutional right need not be ideal but they must “be available”); Turner, 482 U.S. at 90–91 (discussing the importance of the availability of alternative avenues of exercising a constitutional right); id. at 99 (invalidating a prison policy that constituted an “almost complete ban” on exercising a constitutional right). So, while I join the court’s opinion as to newspapers and books, I conclude that factual disputes regarding access to religious materials foreclose our ability to -9- review the district court’s denial of qualified immunity as to that part of Scharnhorst’s claim. And even if we could address the issue, a review of the facts in the light most favorable to Scharnhorst leads to a long line of precedent demonstrating a violation of a clearly established right. ______________________________ -10-