James Alexander v. Weidemeirer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES DANIEL ALEXANDER, No. 12-16848
Plaintiff - Appellant, D.C. No. 2:08-cv-02773-MCE-
KJN
v.
WEIDEMEIRER; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
California state prisoner James Daniel Alexander appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging, among
other claims, constitutional violations in connection with the confiscation of
several adult magazines. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (summary
judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under
28 U.S.C. § 1915A). We affirm.
The district court properly granted summary judgment on Alexander’s First
Amendment claim regarding his right to free expression because Alexander failed
to raise a genuine dispute of material fact as to whether the confiscation of his
adult magazines violated his right to free expression. See Turner v. Safley, 482
U.S. 78, 89-91 (1987) (setting forth factors for determining whether a regulation
unduly infringes on a constitutional right); Mauro v. Arpaio, 188 F.3d 1054, 1059-
62 (9th Cir. 1999) (en banc) (jail’s ban on sexually explicit materials did not
violate the First Amendment); see also Frost v. Symington, 197 F.3d 348, 357 (9th
Cir. 1999) (clarifying the circumstances under which the government must produce
evidence in support of a common-sense connection between a legitimate objective
and a prison regulation).
The district court properly granted summary judgment on Alexander’s other
claims arising from the confiscation of his adult magazines because Alexander
failed to raise a triable dispute as to any element of those claims. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (discussing the sufficiently serious deprivation
requirement of an Eighth Amendment claim); City of Cleburne v. Cleburne Living
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Center, 473 U.S. 432, 439 (1985) (the Equal Protection Clause essentially requires
that all persons similarly situated be treated alike); Lynch v. Donnelly, 465 U.S.
668, 678-679 (1984) (identifying guidelines for analyzing Establishment Clause
claims); Hudson v. Palmer, 468 U.S. 517, 530 (1984) (“[P]risoners have no
legitimate expectation of privacy, and the Fourth Amendment’s prohibition on
unreasonable searches does not apply in prison cells.”).
The district court properly dismissed Alexander’s due process claim, his
claim alleging improper denial of conjugal visits, and his access-to-courts claim
because Alexander failed to allege sufficient facts to state a claim for relief. See
Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974) (setting forth procedural due
process requirements in prison disciplinary proceedings); Silva v. DiVittorio, 658
F.3d 1090, 1102-04 (9th Cir. 2011) (requiring factual allegations showing actual
injury in order to state a First Amendment access-to-courts claim); Gerber v.
Hickman, 291 F.3d 617, 621-22 (9th Cir. 2002) (en banc) (prisoners have no
constitutional right while incarcerated to conjugal visits).
The district court did not abuse its discretion by denying Alexander’s motion
to reconsider because Alexander failed to establish grounds warranting such relief.
See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir.1993) (standard of review and grounds for reconsideration under Fed. R.
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Civ. P. 59(e)).
The district court did not abuse its discretion by denying Alexander’s motion
to vacate or modify the protective order, his motions to compel, and his motion for
subpoenas duces tecum. See Fed. R. Civ. P. 26(b)(1)-(2) (discussing the
permissible scope of discovery); Fed. R. Civ. P. 26(c)(1) (circumstances under
which entry of protective order is appropriate); Hallet v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002) (setting forth standard of review and describing the district
court’s broad discretion to deny discovery).
We do not consider issues raised in the opening brief which are not
supported by argument, nor issues and arguments incorporated by reference on
appeal. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (applying
requirements of Fed. R. App. P. 28 to pro se appellant’s submissions on appeal).
We deny Alexander’s motion to schedule oral argument, filed on January 14,
2013.
AFFIRMED.
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