Petition for Writ of Certiorari — Anthony James Merrick, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

Supreme Court briefNov 24, 2025

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Case: 24-4833, 05/05/2025, DktEntry: 25.2, Page 1 of 4

NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

APR 25 2025

FOR THE NINTH CIRCUIT

ANTHONY JAMES MERRICK, in his

official capacity only,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 24-4833

D.C. No. 2:23-cv-00296-SPL-MTM

Plaintiff - Appellant,

MEMORANDUM*

DAVID SHINN, Director of the Arizona

Department of Corrections, Rehabilitation

and Reentry, in his official and individual

capacities; DIANNE MILLER,

Administrator of the Office of Publication

Review, in her official and individual

capacities; D GONZALES, a corrections

officer in the Arizona Department of

Corrections, Rehabilitation and Reentry, in

his/her official and individual capacities; C

GONZALEZ, Corrections Officer - Badge

#10970; S McQUEEN, Corrections Officer

- Badge #12723; RYAN

THORNELL, Director of the Arizona

Department of Corrections, Rehabilitation,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paid Logan, District Judge, Presiding

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Case: 24-4833, 05/05/2025, DktEntry: 25.2, Page 2 of 4

Submitted April 22,2025**

Before:

GRABER, H.A. THOMAS, and JOHNSTONE, Circuit Judges.

Arizona state prisoner Anthony James Merrick appeals pro se from the

district court's summary judgment in his 42 U.S.C. § 1983 action alleging federal

claims arising from the confiscation of prison mail. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Prison Legal News v. Ryan, 39 F.4th 1121,

1128 (9th Cir. 2022). We affirm.

The district court properly granted summary judgment because Merrick

failed to raise a genuine dispute of material fact as to whether Arizona Department

of Corrections Order 914, as revised on August 12,2022, was facially

unconstitutional or whether defendants lacked a legitimate penological interest in

confiscating content deemed sexually explicit under the order. See id. at 1128-36

(setting forth factors for analyzing the facial and as-applied constitutionality of

prison regulations under Turner v. Safley, 482 U.S. 78 (1987); holding that Order

914’s policy prohibiting graphic depictions of nudity or sex acts was facially valid;

and explaining that “inconsistency in prison censorship” is insufficient to establish

an as-applied First Amendment violation).

The district court did not abuse its discretion in denying Merrick’s motions

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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for injunctive relief in the form of additional legal resources, for appointment of

counsel, for recusal of the magistrate judge, for reconsideration of its dismissal of

defendant McQueen for failure to effect service, and to compel discovery because

Merrick failed to establish a basis for such relief. See Palmer v. Valdez, 560 F.3d

965,970 (9th Cir. 2009) (setting forth standard of review and “exceptional

circumstances” requirement for appointment of counsel); Am. Trucking Ass ’ns,

Inc. v. City ofLos Angeles, 559 F.3d 1046,1052 (9th Cir. 2009) (setting forth

standard of review and requirements for injunctive relief); Hallett v. Morgan, 296

F.3d 732,751 (9th Cir. 2002) (setting forth standard of review and explaining that

a decision to deny a motion to compel discovery will not be disturbed without

“actual and substantial prejudice to the complaining litigant” (citation and internal

quotation marks omitted)); United States v. Hernandez, 109 F.3d 1450,1453-54

(9th Cir. 1997) (setting forth standard of review and standards'for recusal of

judges); Sch.Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255,

1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for

reconsideration).

The district court did not abuse its discretion in denying Merrick’s request to

certify an interlocutory appeal. See Swint v. Chambers County Comm ’n, 514 U.S.

35,47 (1995) (“Congress ... chose to confer on district courts first line discretion

to allow interlocutory appeals.”).

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We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Anthony James Merrick,

No. CV-23-00296-PHX-SPL (MTM)

Plaintiff,

ORDER

David Shinn, et al.,

Defendants.

Plaintiff Anthony James Merrick, who is currently confined in Arizona State Prison

Complex (ASPC)-Yuma, Cibola Unit in San Luis, Arizona, brought this civil rights case

pursuant to 42 U.STC. § 1983. (Doc. 10.) Defendants move for summary judgment^ and

Plaintiff opposes.1 (Docs. 71, 82.) Defendants filed a Reply. (Doc. 84). Also before the

Court are Plaintiffs Motion for Order to Show Cause Re: Legal Access (Doc. 29), Motion

for Expedited Request for Interlocutory Appeal (Doc. 47), and Rule 59(e) Motion to

Amend (Doc. 55).

Background

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated

a First Amendment claim in Count One against former Arizona Department of Corrections

(ADC) Director David Shinn, Administrator of the Office of Publication Review (OPR)

Dianne Miller, and Corrections Officers (COs) C. Gonzalez, S. McQueen, and D. Gonzales

nro znlTi16 ^^PJ0^4 ?otice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952,

962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 77.)

Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 2 of 16

in their individual capacities. (Doc. 9 at 5.) The Court also determined that Plaintiff stated

a claim for injunctive relief in Count One against current ADC Director Ryan Thomell in

his official capacity. (Id.) The Court directed these Defendants to answer and dismissed

the remaining claims and Defendants. (Id. at 6-7.)

II.

Plaintiff’s Motions

Motion for Order to Show Cause re: Legal Access

Plaintiff asserts that he has been denied “access to legal authorities which will

prejudice him and his claims and tips the scale heavily in the defendants [sic] favor.” (Doc.

29 at 3.) Plaintiff claims that Defendants “do not provide resources such as electronic

tablet software” such as Microsoft Word and that they do not provide hardware “such as a

keyboard” for Plaintiff to prepare motions and pleadings in this case. (Id.) Plaintiff moves

the Court to order Defendants to provide him “with legal resources on his tablet, to include,

‘Word” (or an equivalent), a keyboard .. . and full access to Lexus Nexus and e[-]filing

with the [C]ourt.” (Id. at 5.)

The Court construes Plaintiff’s Motion as a motion for injunctive relief. A plaintiff

seeking a preliminary injunction must show that (1) he is likely to succeed on the merits,

(2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities

tips in his favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def.

Council, Inc., 555 U.S. 20 (2008).

Ordinarily, the Court lacks jurisdiction over claims for injunctive relief that are not

related to the claims pleaded in the operative complaint. See Pac. Radiation Oncology,

LLC v. Queen’s Med. Center, 810 F.3d 631, 636 (9th Cir. 2015) (“[w]hen a plaintiff seeks

injunctive relief based on claims not pled in the complaint, the court does not have the

authority to issue an injunction”). However, the Court may consider claims for injunctive

reliefnot pleaded in the operative complaint if they concern a prisoner’s access to the court.

See Prince v. Schriro, et al., CV 08-1299-PHX-SRB, 2009 WL 1456648, at *4 (D. Ariz.

May 22, 2009) (unless a claim concerns access to the courts, the Plaintiff must show a

nexus between the relief sought and the claims in the lawsuit).

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Here, even if the Court construes Plaintiff’s allegations in the motion for injunctive

relief as an access-to-courts claim, Plaintiff’s request for injunctive relief still fails. To

maintain an access-to-courts claim, a prisoner must submit evidence showing an “actual

injury” resulting from the defendant’s actions. Lewis v. Casey, 518 U.S. 343, 349 (1996).

With respect to an existing case, the actual injury must be “actual prejudice ... such as the

inability to meet a filing deadline or to present a claim.” Id. at 348-49. Plaintiff has failed

to show a likelihood of success on the merits or irreparable injury as it pertains to an access-

to-courts claim. There is no evidence that Plaintiff has faced an unreasonable delay or the

inability to file anything in this action or in any other action. In fact, Plaintiffhas succeeded

in litigating this case through screening, discovery, and now summary judgment. A review

of the docket in this matter reflects that Plaintiff has filed an original, first amended, and

second amended complaint as well as several motions, notices, responses, and replies.

Plaintiffhas not shown that his ability to litigate this or any other case has been impeded.

Plaintiffhas not been prevented from bringing a claim as a result of Defendants’ alleged

conduct. Thus, Plaintiffhas not established actual injury. Plaintiffhas also failed to satisfy

the remaining requirements that must be shown to warrant injunctive relief. See Winter,

555 U.S. at 20. For the foregoing reasons, die Court will deny Plaintiff’s motion for

injunctive relief.

In his next Motion, Plaintiff requests that the Court “make an expedited

determination of [his] interlocutory appeal.” (Doc. 47 at 1.) Plaintiff appears to request

that the Court vacate its January 10,2024 Order denying Plaintiff’s motion for relief from

scheduling order and request for extension of the pre-trial deadlines. (See id.)

Motion for Expedited Request for Interlocutory Appeal

The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii,

42 F.3d 1185,1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396

(9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of an Order

absent a showing of manifest error or a showing of new facts or legal authority that could

not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).

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Any motion for reconsideration must specifically identify the matters that were overlooked

or misapprehended by the Court. Id. If any new matters are being brought to the Court’s

attention for the first time, the movant must identify the reasons they were not presented

earlier, and any specific modifications being sought in the Court’s Order. Id. No motion

for reconsideration of an Order may repeat any oral or written argument made in support

of or in opposition to the motion that resulted in the Order. Id.

Here, Plaintiff has not pointed to an actual error or to any new facts or legal

authority. Instead, Plaintiff argues that the Court’s January 10 Order “is manifestly wrong

as it placed the Judiciary on the side of the defendant and violates the Federal Rules of

court[.]” (Doc. 47 at 2.) Plaintiff then lists several rules that the Court has purportedly

violated without specifically explaining how the Court has done so. Absent a showing of

an actual error, Plaintiff’s argument amounts to a mere disagreement with the Court’s

conclusion, which is insufficient to support a motion to reconsider or vacate an Order.

Accordingly, this Motion will also be dismissed.

Finally, Plaintiff moves the Court to amend or alter its January 23,2024 Order (Doc.

49) denying Plaintiff’s January 10,2024 Motion for Reconsideration (Doc. 44). (Doc. 55.)

As explained above, absent a showing of manifest error, new facts, or changes in the

controlling law, reconsidering or amending an Order is not warranted. In this Motion,

Plaintiff argues that the Court erred when it denied Plaintiff’s motion to reconsider (Doc.

44) the Court’s Order (Doc. 42) adopting the Magistrate Judge’s Report &

Recommendation (R&R) (Doc. 36) dismissing Defendant McQueen from the action. (Id.)

In the current Motion, Plaintiff rehashes his argument that he never received a copy of the

R&R. (Doc. 55 at 2.) But the Court already considered this argument when it denied

Plaintiff’s Motion for Reconsideration. (See Doc. 49 at 2 (“To the extent Plaintiff contends

he never received a copy of the R&R issued by [Magistrate] Judge Morrissey, the docket

reflects that it was sent to him on December 4, 2024, and he has continued to receive mail

following the R&R.[] Upon review, the Court finds Plaintiff has not presented any basis

Rule 59(e) Motion to Amend

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warranting reconsideration of its prior ruling.”). Plaintiff has not identified a change in the

law that was decided after the Court’s decision or shown that the Court failed to consider

facts that were presented before the decision. Rather, Plaintiff effectively asks the Court

to rethink what it has already thought through, which is not a proper basis for

reconsideration, amending, or altering a prior Order. This Motion will be denied as well.

Summary Judgment Standard

A court must grant summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

movant bears the initial responsibility of presenting the basis for its motion and identifying

those portions of the record, together with affidavits, if any, that it believes demonstrate

the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not

produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,

1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts

to the nomnovant to demonstrate the existence of a factual dispute and that the fact in

contention is material, i.e., a fact that might affect the outcome of the suit under the

governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable

jury could return a verdict for the nomnovant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 6% F.3d 1216, 1221 (9th

Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its

favor, FirstNat’lBank ofAriz. v. Cities Serv. Co., 391 U.S. 253,288-89 (1968); however,

it must “come forward with specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,587 (1986) (internal

citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge’s function is not to weigh the evidence and

determine the truth but to determine whether there is a genuine issue for trial. Anderson,

477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw

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all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited

materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

IV.

Relevant Facts

On March 2, 2022, the Arizona Department of Corrections, Rehabilitation, and

Reentry (ADCRR) implemented “Department Order Manual 914 - Inmate Mail” (DO

914). (Doc. 72, Defs.’ Statement of Facts (DSOF) | 1.) The purpose of DO 914 is to

establish “regulations, processes and procedures for inmates to send and receive mail,

music, and individually reviewed publications.” {Id. | 2.) DO 914 § 7 deems certain

publication content contrary to ADCRR’s penological interest because it is “detrimental to

the safe, secure, and orderly operation of the facility.” {Id. | 4.) DO 914 § 7 was

implemented in order to “reduce sexual harassment and prevent a hostile environment for

inmates, staff and volunteers” and “to assist with rehabilitation and treatment objectives,

and promote the safe, secure, and orderly operation of the facility[.]” (Doc. 72-1 at 16 (DO

914 §7.1).)

Prisoner Mail Policy

Specifically, DO 914 § 7.2.17 prohibits “[s]exually explicit content in publications,

17., photographs, drawings, or in any type of image or text, that depicts sexual poses or attire

18 or sexual representations of inmates, correctional personnel, law enforcement, military,

medical/mental health staff, programming staff, teachers or clergy.” (DSOF | 11.) The

ADCRR Glossary of Terms defines “Sexually Explicit Material” as: “Any drawing,

photograph ... or other item, the cover or contents of which depicts or verbally describes

nudity, sexual activity, sexual conduct, sexual excitement of either gender...” {Id. 112,)

D.O. 914 § 7.2.1 prohibits publications “that depict nudity of either gender,” and § 7.2.20

prohibits any publication not expressly enumerated that “may otherwise be detrimental to

the safe, secure, and orderly operation of the institution.” {Id. | 22.) The Glossary of

Terms defines “Nudity” as “the showing of the human male or female genitals, pubic area

or buttocks with less than a full opaque covering, or the showing of the female breast with

less than a fully opaque covering of any portion thereof below the top of the nipple . . .”

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(Doc. 72-3 at 3.)

“Unauthorized materials include those that by their nature or content threaten or are

detrimental to the security, safety and orderly operation, or discipline of the facility, or

prisoner rehabilitation, or are found to facilitate, encourage, incite, promote or instruct in

criminal activity or unauthorized prison activity.” (Id. f 5.) As part of DO 914,

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“publication^] received by inmates are individually reviewed consistent with the

Department’s legitimate penological interest in maintaining the safety, security and orderly

operations of the institutions.” (Id. U 3.) Prisoners’ mail is opened, inspected for

contraband, and is presorted by the complex unit.

On July 20,2022, Plaintiff was confined at the ASPC-Yuma, Cibola Unit. (Id. 17.)

That day, Plaintiff received approximately 30 thumbnail photos of female Hollywood

celebrities from Acme Publications. (Id.

women in various sexually suggestive poses.2 (Id. 19.) On July 21,2022, the publication

was contrabanded by Defendant C. Gonzalez pursuant to DO 914 § 7.2.17 and assigned

contraband control number 07-096-2022. (Id. 110.) That same day, Plaintiff appealed the

contraband finding to OPR. (Id. 113.) On September 27, 2022, Defendant Diane Miller

upheld the decision to exclude the publication per DO 914 § 7.2.17. (Id. 114.)

Plaintiffs Contrabanded Materials

8.) The photos generally depict scantily clad

On July 27, 2022, Plaintiff received a brochure that generally contained thumbnail

photos of scantily clad female Hollywood celebrities in sexually suggestive poses from

Acme Publications.3 (Id.

Defendant McQueen pursuant to DO 914 § 7.3.24 and given contraband control number

07-141-22. (Id. If 16.) On August 2,2022, Plaintiff appealed the contraband to OPR. (Id.

15.) That same day, the publication was contrabanded by

,. 2 Copies of the photos at issue in this action were provided in Defendants’ sealed

exhibits. (See Doc. 76.)

3 See id.

4 It appears that Defendant McQueen erroneously cited D.O. 914 § 7 3 2 which

provides that “[a] publication will not be rejected based solely upon inclusion of an

advertisement promoting the following:... penpal services.” (DSOF117 )

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18.) On October 11,2022, Defendant Diane Miller upheld the decision to exclude the

publication per DO 914 § 7.2.17. (Id. 119.)

On September 14, 2022, Plaintiff received a catalog of photos that generally

contained thumbnail photos of scantily clad female Hollywood celebrities in sexually

suggestive poses from Acme Publications.5 (Id. 20.) That same day, the publication was

contrabanded by Defendant D. Gonzales pursuant to DO 914 §§ 7.2.1 and 7.2.20, and given

contraband control number 09-014-22. (Id.

appealed the contraband to OPR. (Id.

Miller upheld the decision to exclude the publication per DO 914 §§ 7.2.1, 7.2.2.1, and

7.2.17. (Id.^ 24.)

21.) On September 16, 2022, Plaintiff

23.) On November 28, 2022, Defendant Diane

Plaintiff states that, on other occasions, he has been allowed to receive photos of

“scantilly [sic] clad women in two-piece swimsuits or underwear, bending forward to

emphasize their chests, bending over to emphasize their posteriors, or leaning back with

their legs spread.” (Doc. 83 at 8-9, Pl.’s Statement of Facts (PSOF) 153.) Plaintiff asserts

that “[b]etween July 20,2022 and August 30,2022 Plaintiff received, through mail, photo

catalogs from Acme Publications that were not contrabanded by ADCRR mail room

employees and defendants.” (Id. at 8, PSOF

these non-contrabanded “catalogs contained approximately fifty thumbnail photos of

scantily clad women in two-piece swimsuits or underwear; five women in lingerie and

approximately forty-eight fully clothed women. (Id. 147.) Plaintiff states that on or about

August 2,2022, he “received more than twenty” photos of various female celebrities, some

of whom wore “bikinis, or one[-]piece swimsuits[.]” (Id.

that ADCRR allows prisoners to buy, rent, and view programs on television or tablets that

show scantily clad women engaged in sexually suggestive poses and sometimes “full

frontal and rear nudity, heterosexual and homosexual sex acts and mast[u]rbation. (Id. at

9, PSOF UK 55,56, 57.)

5 See Doc. 76.

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46, 52.) According to Plaintiff, two of

50, 51.) Plaintiff also asserts

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First Amendment Analysis

Prisoners enjoy a First Amendment right to send and receive mail. Witherow v.

Paff, 52 F.3d 264, 265 (9th Cir. 1995). But prisoners’ First Amendment rights are

“necessarily limited by the fact of incarceration, and may be curtailed in order to achieve

legitimate correctional goals or to maintain prison security.” McElyea v. Babbitt, 833 F.2d

196, 197 (9th Cir. 1987) (per curiam). A regulation that impinges on a prisoner’s First

Amendment rights is valid if that regulation ‘“is reasonably related to legitimate

penological interests.’” Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999) (citing

Turner v. Safley, 482 U.S. 78 (1987)). Deterring criminal activity and maintaining prisoner

security are legitimate penological interests that justify regulations on prisoner mail.

O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996).

Legal Standard

To determine the validity of a regulation, courts apply the test established under

Turner v. Safely, which considers four factors: (1) whether there is a valid, rational

connection between the regulation and the legitimate governmental interest the regulation

is designed to protect; (2) whether the prisoner has alternative means of exercising the right

at issue; (3) the impact any accommodation would have on guards, other prisoners, and

allocation of prison resources; and (4) whether there are “ready alternatives” for furthering

the government interest, which would suggest that the regulation is an exaggerated

response to the jail’s concern. Turner, 482 U.S. at 89-90. In addition, the Supreme Court

recognizes that there are greater security concerns for incoming mail than for outgoing

mail. Thornburgh v. Abbott, 490 U.S. 401,413 (1989).

This is a very deferential standard; courts must give “substantial deference to the

professional judgment of prison administrators.” Beard v. Bank, 548 U.S. 521, 528 (2006)

(citing Overton v. Bazzetta, 539 U.S. 126, 132 (2003)). A court does not have to agree

with the officials’ proffered legitimate penological interest. Frost, 197 F.3d at 355. The

inquiry under Turner is not whether the policy actually serves a penological interest, but

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rather whether it was rational for jail officials to believe that it would. Mauro v. Arpaio,

188 F.3d 1054,1060 (9th Cir. 1999).

Turner v. Safely Factors

Rational Connection to Legitimate Governmental Interest

First, the Court must determine whether the governmental objective underlying the

ADCRR’s policy of excluding material containing sexually explicit content is (1)

legitimate, (2) neutral, and (3) whether the policy is rationally related to that objective.

Thornburgh, 490 U.S. at 414. “In the prison context, regulations that apply to specific

types of content due to specific inherent risks or harms are considered to be content neutral.

Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004). In Thornburgh, the Supreme

Court explained that:

“[Pjrison officials may well conclude that certain proposed

interactions, though seemingly innocuous to laymen, have

potentially significant implications for the order and security

of the prison. Acknowledging the expertise of these officials

and that the judiciary is ‘ill equipped’ to deal with the difficult

and delicate problems of prison management, this Court has

afforded considerable deference to the determinations of prison

administrators who, in the interest of security, regulate the

relations between prisoners and the outside world.”

Thornburgh, 490 U.S. at 408 (citing Procunier v. Martinez, 416 U.S. 396, 404-05 (1974),

overruled on other grounds by Thornburgh, 490 U.S. at 412-414).

ADCRR’s policy of excluding sexually explicit materials is rationally related to the

legitimate penological goals of reducing sexual harassment, preventing a hostile

environment for prisoners and staff, facilitating rehabilitation and treatment objectives, and

promoting the safe, secure, and orderly operation of the facility. See Prison Legal News v.

Ryan, 39 F.4th 1121, 1132 (9th Cir. 2022) (“it is rational for prison officials to restrict

sexually explicit materials to mitigate prison violence and advance related interests”).

Defendants’ stated reason for rejecting the publications at issue was that the publications

contained sexually explicit material in violation of ADCRR policy. Notwithstanding

Defendant McQueen’s erroneous citation to DO 914 § 7.3.2 when filing contraband control

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number 07-141-22, it is undisputed that when Plaintiff appealed this finding to OPR,

Defendant Miller clarified in upholding the contraband finding that the appropriate policy

was DO 914 § 7.2.17. Further, even if Plaintiff was allowed to receive some publications

or watch programs that seemingly violated § 7.2.17, the fact that some materials were able

to slip through the cracks does not mean that § 7.2.17 does not serve a legitimate

penological purpose. The effectiveness of the policy is not the issue, rather, the Court’s

focus is on whether it was rational for prison officials to believe that the policy would serve

a penological interest. Mauro, 188 F.3d at 1060.

It is well-established that maintaining institutional security and rehabilitation are

legitimate penological interests. Pellv. Procunier, 417 U.S. 817, 823 (1974); Turner, 482

U.S. at 91; O’ Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996). Here, the policy at

issue is reasonably related to furthering the stated goals, and the specific application of that

policy to the publications at issue furthered the legitimate goals of security and

rehabilitation. Further, the policy is neutral on its face—there is nothing to indicate that

the aim of the policy is to suppress expression. Thornburgh, 490 U.S. at 415-16 (“the

regulation or practice in question must further an important or substantial government

interest unrelated to the suppression of expression”). Plaintiff argues that DO 914 is

“facially unconstitutional” throughout his response (see Doc. 82 at 2-6), but in Prison

Legal News v. Ryan, the Ninth Circuit specifically determined that “[w]ith one exception,

we conclude that [DO 914] is facially constitutional.” 39 F.4th at 1131. The “one

exception” the Ninth Circuit was referring to was DO 914 § 1.2.17, which is not the policy

at issue in this action. See id. at 1133 (finding overly broad DO 914 § 1.2.17’s ban on

content “that may, could reasonably be anticipated to, could reasonably result in, is or

appears to be intended to cause or encourage sexual excitement or arousal or hostile

behaviors, or that depicts sexually suggestive settings, poses or attire”). Defendants have

shown that there is a rational connection between the policy prohibiting sexually explicit

materials and the prison’s legitimate objectives, and Plaintiff has not refuted Defendant’s

evidence. Therefore, the first factor of the Turner analysis has been satisfied.

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Alternative Means of Exercising Right at Issue

The second Turner factor considers “whether there are alternative means of

exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. “Where

other avenues remain available for the exercise of the asserted right, courts should be

particularly conscious of the measure ofjudicial deference owed to corrections officials ..

. in gauging the validity of the regulation.” Bahrampour, 356 F.3d at 975. When analyzing

the second Turner factor, the Court must view the right in question “sensibly and

expansively.” Thornburgh, 490 U.S. at 417,109 S.Ct. 1874 (citation omitted).

Viewing Plaintiffs right “sensibly and expansively,” the second factor of the Turner

analysis has been satisfied.

publications, including photos of fully dressed women, that did not contain prohibited

sexually explicit material. See Thombugh, 490 U.S. at 401 (where regulation bans sexually

explicit material that threatens institutional security, alternative avenues are available

where “the regulations [at issue] permit a broad range of publications to be sent, received,

and read”). The second Turner factor is also satisfied.

Plaintiff was still permitted to receive non-offending

Adverse Impacts of Accommodation

Third, the Court must consider the impact on the prison and other prisoners if

prisoners were allowed to receive correspondence that contains prohibited sexually explicit

content or nudity. Turner, 482 U.S. at 90. “If accommodations for a constitutional right

would cause significant changes within the prison environment, the courts should give

deference to the prison officials who are responsible for safe, effective, and efficient

administration of the prison system.” Bahrampour, 356 F.3d at 975.

Defendants argue that allowing prisoners to have access to sexually explicit

materials could lead to the bartering of these materials, which could result in fights between

prisoners. (Doc. 71 at 12, citing Mauro, 188 F.3d at 1061-62.) Defendants also argue that

allowing prisoners to possess sexually explicit materials “could expose the female

detention officers to sexual harassment and a hostile work environment.” Id. “When

accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates

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Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 13 of 16

or on prison staff, courts should be particularly deferential to the informed discretion of

corrections officials.” Turner, 482 U.S. at 90. Here, the asserted “ripple effect” is

sufficient to satisfy the third Turner factor.

Obvious Alternatives/Exaggerated Response

Finally, the Court examines whether the policy at issue is an exaggerated response

to the prison’s concerns. Turner, 482 U.S. at 90. On this prong, the Plaintiff bears the

burden of showing that there are obvious, easy alternatives to the regulation. Mauro, 188

F.3d at 1062. If Plaintiff can identify an alternative that fully accommodates the right at a

de minimis cost to valid penological goals, the policy is an exaggerated response. Turner,

482 U.S. at 90-91. “If there are no obvious alternatives, and if the inmate only presents

solutions that will negatively impact valid penological interests, then courts will view the

absence of ready alternatives as evidence of a reasonable regulation.” Bahrampour, 356

F.3d at 976. No alternatives to DO 914.7’s prohibitions—other than not enforcing them—

have been presented. Because Plaintiff has not pointed to a viable alternative, the Court

concludes that the DO 914’s prohibition on sexually explicit materials is not an exaggerated

response to prison concerns.

Conclusion

On this record, the facts show that the designation of the publications at issue as

contraband property was based on the legitimate penological goals of rehabilitation and

maintaining security and that allowing Plaintiff to possess the items would be

counterproductive to these goals. Because the record does not support a constitutional

violation, Plaintiff’s First Amendment claim against Defendants fails, and summary

judgment will be granted to Defendants.

VI.

Qualified Immunity

While the Court finds there has been no constitutional violation based on the

undisputed relevant facts, even if there was, the individual Defendants would be entitled to

qualified immunity because it was not clearly established at the time that their actions

violated clearly established law. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)

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Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 14 of 16

(government officials enjoy qualified immunity from civil damages unless their conduct

violates “clearly established statutory or constitutional rights of which a reasonable person

would have known”); see Pearson v. Callahan, 555 U.S. 223,230-32,235-36 (2009) (when

deciding if qualified immunity applies, a court must determine: (1) whether the facts

alleged show the defendant’s conduct violated a constitutional right; and (2) whether that

right was clearly established at the time of the violation).

Whether a right was clearly established must be determined “in light of the specific

context of the case, not as a broad general proposition. ” Saucier v. Katz, 533 U. S. 194,201

(2001). The plaintiff has the burden to show that the right was clearly established at the

time of the alleged violation. Sorrels v. McKee, 290 F.3d 965,969 (9th Cir. 2002); Romero

v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). Thus, “the contours of the right must

be sufficiently clear that at the time the allegedly unlawful act is [under]taken, a reasonable

official would understand that what he is doing violates that right;” and “in the light of pre

existing law the unlawfulness must be apparent.” Mendoza v. Block, 27 F.3d 1357, 1361

(9th Cir. 1994) (quotations omitted). Therefore, regardless of whether the constitutional

violation occurred, the officer should prevail if the right asserted by the plaintiff was not

“clearly established” or the officer could have reasonably believed that his particular

conduct was lawful. Romero, 931 F.2d at 627.

The Ninth Circuit’s decision in Prison Legal News v. Ryan, was issued on July 8,

2022—approximately two weeks before the first materials at issue in this action were

contrabanded. As discussed above, in that decision, the Ninth Circuit specifically found

that, with the exception of one provision that is not at issue in this action, DO 914 was

facially constitutional. Prison Legal News, 39 F.4th at 1131. Prior to this decision, the

Ninth Circuit had consistently upheld the restriction of sexually explicit materials in

prisons for over two decades. See Mauro, 188 F.3d at 1057 (upholding ban on materials

depicting frontal nudity); Bakrampour, 356 F.3d at 972 (upholding ban on mail containing

sexually explicit material); Frost, 197 F.3d at 357-58 (upholding ban on explicit depictions

of certain sexual acts).

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Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 15 of 16

Plaintiff has not presented, and the Court is not aware of, any case law that suggests

a prisoner has a First Amendment right to receive or possess sexually explicit materials.

Moreover, at the time Plaintiff’s claim arose, there was not a clear distinction between

sexually oriented materials that could be constitutionally restricted from a jail or prison and

those that could not. See Bardo v. Clendenin, 474 F. App’x 673,674 (9th Cir. 2012) (“The

district court properly held that defendant prison officials were entitled to qualified

immunity because Bardo did not have a clearly stablished right to retain the ad depicting

side-view nudity.”); Griffin v. Gorman, No. l:17-cv-03019,2021 WL 1056498,2021 U.S.

Dist. LEXIS 51993 (D. Colo. Mar. 19,2021) (concluding that prison officials did not have

fair warning that confiscating “non-explicit photos of women in panties and swimsuits”

would violate the First Amendment); Maday v. Dooley, No. 4:17-cv-04168, 2019 WL

4747058, at *17, 2019 U.S. Dist. LEXIS 167951, at *54 (D.S.D. Sept. 30, 2019) (finding

that “the law regarding what may constitute ‘nudity’ or ‘sexually-explicit’ material was not

so clearly established that it would have put defendants on notice that [denying access to

images of exposed breasts or buttocks] was unconstitutional”); Rapp v. Barboza, No. 9:13-

cv-0599, 2016 WL 4223974, at *9, 2016 U.S. Dist. LEXIS 94557, at *25, 31 (N.D.N.Y.

.17

July 19, 2016) (concluding in the alternative that the defendants would be entitled to

qualified immunity for denying access to “magazines such as the Sports Illustrated

Swimsuit Edition, Playboy, Maxim, American Curves, and XXL”).

Based on the foregoing, Plaintiff has not met his burden of showing that, at the time

his claim arose, the law regarding prisoner access to sexually explicit materials was so

clearly established that a reasonable prison official would have known that denying access

to the materials at issue would violate the First Amendment. Accordingly, even if the

individual Defendants’ conduct violated the First Amendment, they would be entitled to

qualified immunity.

IT IS ORDERED:

(1)

The reference to the Magistrate Judge is withdrawn as to Defendants ’ Motion

for Summary Judgment (Doc. 71) and Plaintiff’s Motion for Order to Show Cause Re:

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Case 2:23-cv-00296-SPL-MTM Document 86 Filed 08/02/24 Page 16 of 16

Legal Access (Doc. 29), Motion for Expedited Request for Interlocutory Appeal (Doc. 47),

and Rule 59(e) Motion to Amend (Doc. 55).

(2)

Plaintiffs Motion for Order to Show Cause Re: Legal Access (Doc. 29),

Motion for Expedited Request for Interlocutory Appeal (Doc. 47), and Rule 59(e) Motion

to Amend (Doc. 55) are denied.

(3)

Defendants’ Motion for Summary Judgment (Doc. 71) is granted, and the

action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.

Dated this 1st day of August, 2024.

Honorable Steven P. Le^an

United States District Judge

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APP^w-c

Case: 24-4833, 09/02/2025, DktEntry: 27.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 2 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ANTHONY JAMES MERRICK, in his

official capacity only,

Plaintiff - Appellant,

No. 24-4833

D.C. No. 2:23-cv-00296-SPL-MTM ~

District of Arizona,

Phoenix

ORDER

DAVID SHINN, Director of the Arizona

Department of Corrections, Rehabilitation

and Reentry, in his official and individual

capacities; et al.,

Defendants - Appellees.

Before:

GRABER, H.A. THOMAS, and JOHNSTONE, Circuit Judges.

The panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. See Fed. R.

App. P. 40.

The petition for panel rehearing and petition for rehearing en banc (Docket

Entry No. 25) are denied.

No further filings will be entertained in this closed case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.