NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOJO EJONGA-DEOGRACIAS, AKA JoJo No. 21-35211 Ejonga, D.C. No. 2:20-cv-00320-RSM Plaintiff-Appellant,

v. MEMORANDUM*

STEPHEN D. SINCLAIR, Secretary, Department of Corrections; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Submitted March 14, 2023**

Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.

Washington state prisoner JoJo Ejonga-Deogracias appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First and

Eighth Amendment violations. 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 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). review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We

affirm in part, reverse in part, and remand.

The district court properly granted summary judgment on Ejonga’s Eighth

Amendment claim concerning a noxious smell because Ejonga failed to raise a

genuine dispute of material fact as to whether defendants were deliberately

indifferent to an excessive risk to inmate health or safety. See Farmer v. Brennan,

511 U.S. 825, 837 (1994) (prison officials are liable for denying a prisoner humane

conditions of confinement only if they know of and disregard a substantial risk of

serious harm).

The district court granted summary judgment on Ejonga’s First Amendment

claim concerning the rejection of photos mailed to him from the King County

prosecutor’s office, applying the four-factor test from Turner v. Safley, 482 U.S. 78

(1987). Defendants contended the policy limiting incoming mail to ten

photographs was needed to reduce mailroom workload, but also argued that Ejonga

could have received the 138 photos if sent in fourteen separate mailings.

Defendants further argued that there was a concern about inmates selling or trading

photos “displaying sexual tones,” but there was no evidence that the photos sent to

Ejonga were sexual in nature. Finally, the district court concluded that Ejonga had

an alternative means of receiving the photos as he could have requested the photos

be sent back to the King County prosecutor’s office and then resent in separate

2 21-35211 batches of ten. But there was no evidence in the record that the King County

prosecutor’s office would have honored this more burdensome request. On this

record, we conclude Ejonga has raised a genuine dispute of material fact as to

whether the policy as applied to Ejonga’s mail is reasonably related to a legitimate

penological interest and as to whether his incoming mail from the prosecutor’s

office, concerning his criminal case, should have been processed as legal mail. See

Turner, 482 U.S. at 89-91 (setting forth the four-factor test for evaluating a prison

regulation which impinges upon a constitutional right); Bahrampour v. Lampert,

356 F.3d 969, 975 (9th Cir. 2004) (Turner analysis applies equally to facial and as

applied challenges). We reverse the district court’s grant of summary judgment on

this claim only and remand for further proceedings.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

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

Defendants’ motion to supplement the record (Docket Entry No. 28) is

granted. We do not consider any other document that was not part of the record

before the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir.

1990).

The parties will bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

3 21-35211