Thomas James v. Charles Ryan , 436 F. App'x 804 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS M. JAMES, No. 10-15918
Plaintiff - Appellant, D.C. No. 2:10-cv-00510-GMS-JRI
v.
MEMORANDUM *
CHARLES L. RYAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Thomas M. James, an Arizona state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that a prison
policy banning sexually explicit materials violated his constitutional rights. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
*
*
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We vacate
and remand.
James alleges that the prison policy banned sexually explicit publications
and all nudity in publications and photos. We are unable to say at this early stage
of the proceeding that James cannot state a claim for a First Amendment violation.
See Dunn v. Castro, 621 F.3d 1196, 1205 n.7 (9th Cir. 2010). Accordingly, we
reverse and remand for further proceedings.
We do not consider James’s arguments, including those related to retaliation
and amendments to the policy, raised for the first time on appeal. See Travelers
Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008).
James’s “Motion for Status” filed on October 14, 2010 is denied as moot.
James’s “Motion for leave of Court; Motion for enlargement of Time” filed
on October 14, 2010 is denied because it does not appear to relate to this appeal.
James shall bear his costs on appeal.
VACATED and REMANDED.
2 10-15918