NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 27 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT SEAN KYLE MARTIN, AKA Sean K No. 23-35161 Bergquist,

D.C. No. 2:21-cv-00278-TOR

Plaintiff-Appellant, v. MEMORANDUM* HUGO FERNANDEZ CADENA, Mailroom Employee at AHCC; BONNIE LONGINO, Mailroom Employee at AHCC; TRACY SCHNEIDER, HQ Correctional Manager; CHARLOTTE HEADLEY, Chief of Security (Publication Review Committee Chair); JOHN DOE, Publication Review Committee (Chair); J MARTIN, Grievance Coordinator,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

Submitted August 20, 2024** Before: S.R. THOMAS, RAWLINSON, and COLLINS, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Washington state prisoner Sean Kyle Martin appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s ruling on cross-motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). We affirm.

The district court properly granted summary judgment for defendants on Martin’s First Amendment claims because Martin failed to raise a genuine dispute of material fact as to whether the challenged prison regulations, as applied to Martin, were unrelated to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-90 (1987) (setting forth the four-factor test for evaluating a prison regulation which impinges upon a constitutional right); Prison Legal News v. Ryan, 39 F.4th 1121, 1135-36 (9th Cir. 2022) (applying the Turner analysis to an as- applied challenge and noting that variations in the enforcement of a policy will not always rise to a constitutional violation).

The district court properly granted summary judgment for defendants on Martin’s due process claim because Martin failed to raise a genuine dispute of material fact as to whether he did not receive the process he was due. See Procunier v. Martinez, 416 U.S. 396, 417-19 (1974) (explaining that the decision to censor or withhold delivery of mail must be accompanied by minimum procedural safeguards), overruled on other grounds by Thornburgh v. Abbott, 490

2 23-35161 U.S. 401 (1989); Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999) (“[Prisoners have] a Fourteenth Amendment due process liberty interest in receiving notice that [their] incoming mail is being withheld by prison authorities.”); cf. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (“[T]emporary delay in the delivery of [a prisoner’s] publications, resulting from the prison official’s security inspection, does not violate his First Amendment rights.”).

Defendant’s motion to seal Volume 4 of the Supplemental Excerpt of Record (Docket Entry No. 23) is granted. Volume 4 of the Supplemental Excerpt of Record (Docket Entry No. 29) remains sealed. All other pending motions are denied.

AFFIRMED.

3 23-35161