NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 19 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAJUAN WILLIAMS, No. 20-17507

Plaintiff-Appellant, D.C. No. 2:17-cv-01833-DGC-CDB v.

RYAN THORNELL; BARNER, Sgt. #1843 MEMORANDUM* - Correctional Officer at ASPC-Florence; UNKNOWN PARTY, named as: "Florence Complex/Unit Publication Review Staff, Doe #1" - Correctional Officer at ASPC-Florence; ANDERSON, Correctional Officer (COII) at ASPC-Florence; G. OSLER, Correctional Officer (COII) #1688 at ASPC-Florence; S. MANGAN, COII #3112 - Correctional Officer II at ASPC-Florence; UNKNOWN PARTY, named as: Officer "Illegible" #73_2, Doe #2" - Correctional Officer at ASPC-Florence; ANTOLIN, CO II - Correctional Officer at ASPC-Eyman;

WILLIAMS, CO II; UNKNOWN PARTY,

Officer, Doe #3; REIFFER, COIV; BARNES, Sgt. #1843 - Correctional Officer at ASPC - Florence; originally named on Complaint as Barner,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. David G. Campbell, District Judge, Presiding

Argued and Submitted July 10, 2023 San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

Plaintiff DaJuan Williams, a prisoner in the Arizona Department of

Corrections (ADC), appeals the district court’s grant of summary judgment in favor

of Defendants regarding the exclusion under ADC Order 914.07 (the Policy) of

certain publications ordered by Plaintiff. “We review the district court’s grant of

summary judgment de novo.” Prison Legal News v. Ryan, 39 F.4th 1121, 1128 (9th

Cir. 2022). We review the district court’s denial of an inmate’s request for appointed

counsel for abuse of discretion. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014).

We review the district court’s rulings on discovery disputes for abuse of discretion.

Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004).

1. The district court erred in holding that Plaintiff lacks standing as to the

sixteen missing photographs. The district court reasoned that Plaintiff’s injuries are

not redressable because Defendants no longer have possession of the sixteen missing

photographs. However, Defendants conceded in their district court briefing that it is

possible to repurchase the missing photographs if Plaintiff can identify them. Thus,

were Plaintiff to prevail on the merits, Plaintiff’s injury could be redressed by return

of the repurchased photographs to his possession.

We reject Defendants’ argument that Plaintiff waived the issue of standing.

2 “[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’”

United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938)). In his response to the district court’s order to show cause,

Plaintiff argued that his claims as to the sixteen missing photographs should not fail

merely because Defendants failed to preserve the photos. Based on his response,

Plaintiff appears to have construed the issue as an evidentiary matter rather than an

issue of redressability. But Plaintiff did not intentionally relinquish or abandon the

issue altogether. Accordingly, we reverse the district court’s grant of summary

judgment as to the sixteen missing photographs and remand for further proceedings

on the merits.1

2. The district court did not abuse its discretion in denying Plaintiff’s request

for access to the excluded publications for litigation purposes. Plaintiff argues that

he was prejudiced by the district court denying him access to the publications while

allowing Defendants to present “unopposed, dispositive, fact-specific arguments

based on that evidence.” But Plaintiff does not argue that he was hindered in his

ability to produce evidence regarding the publications (e.g., expert testimony

1 Plaintiff asks us to remand to the district court for consideration whether sanctions against Defendants for spoliation of evidence are appropriate. Plaintiff never sought sanctions relating to spoliation from the district court, so this issue is forfeited. Honcharov v. Barr, 924 F.3d 1293, 1295 n.1 (9th Cir. 2019). The panel therefore declines to address this issue. Cf. Hargis v. Foster, 312 F.3d 404, 408 (9th Cir. 2002).

3 regarding the effects of the publications on prisoner behavior). And while Plaintiff

was likely hampered in his ability to articulate fact-based arguments about the

publications, it is not clear that any such arguments would have had much value to

the district court.2 It was rational for the district court to conclude that it could fairly

decide the case without hearing Plaintiff’s views on each specific publication.

3. The district court did not abuse its discretion in denying Plaintiff’s request

for appointed counsel. Although a person has no right to counsel in civil actions, a

court may appoint counsel for indigent civil litigants in “exceptional circumstances.”

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); 28 U.S.C. § 1915(e)(1). When

determining whether to appoint counsel in a civil suit, the district court considers:

(1) whether the prisoner is likely to succeed on the merits; and (2) whether “the

prisoner is unable to articulate his claims in light of the complexity of the legal issues

involved.” Cano, 739 F.3d at 1218. The district court correctly identified this

standard and reasoned that (1) Plaintiff had not demonstrated a likelihood of success

on the merits, and (2) Plaintiff was capable of articulating his claims to the court.

2 Such arguments would presumably take the form of Plaintiff’s personal opinion on whether each publication was reasonably excluded. And personal opinions are not evidence regarding issues of professional judgment. See Beard v. Banks, 548 U.S. 521, 530 (2006) (“[W]e must distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, our inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage.” (internal citation omitted)).

4 The district court’s reasoning was not “illogical, implausible, or without support in

inferences that may be drawn from the record.” Glick v. Edwards, 803 F.3d 505, 508

(9th Cir. 2015) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc)). And for similar reasons as those discussed above, it was not an

abuse of discretion for the district court to conclude that Plaintiff’s lack of access to

the excluded publications did not constitute an “exceptional circumstance”

warranting appointment of counsel.

4. We reverse the district court’s grant of summary judgment as to the

following publications: the September 2016 issue of Elle; FIYA Girls photographs

one, six, and seven; and the Picture Kingz thumbnail sheets labeled “Cameltoe Flyer

4” and “Celebrity Flyer 7.” Defendants concede that the September 2016 issue of

Elle and FIYA Girls photographs one, six, and seven do not contain prohibited

content. The two thumbnail sheets are not “sufficiently graphic,” Prison Legal News,

39 F.4th at 1130; most of the pictures on these sheets show a frontal view of women

wearing underwear or bikinis (no nudity), and to the extent the pictures may contain

nudity, it is nearly impossible to see.

5. We affirm the district court’s grant of summary judgment as to all

remaining publications because the four factors set out in Turner v. Safely favor

Defendants. See id. at 1128–29 (citing Turner v. Safely, 482 U.S. 78, 89–91 (1987)).

The exclusion of each remaining publication was rationally related to a legitimate

5 penological interest. See id. at 1132. It was rational for ADC to conclude based on

online summaries that each of the books contained sexually explicit material beyond

“[a] mere mention of sex.” Id. at 1130. Each of the remaining magazines contains at

least one page containing sexually explicit material as defined in the Policy (either

graphic photographs of nudity or graphic descriptions of sexual intercourse or

masturbation).3 And the remaining photographs all contain graphic nudity in

violation of the Policy. Plaintiff has not offered any convincing evidence or

argument to “overcome the presumption that the prison officials acted within their

‘broad discretion’” by excluding these publications. Shaw v. Murphy, 532 U.S. 223,

232 (2001) (quoting Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)). For the

reasons discussed in Prison Legal News, the remaining three Turner factors favor

Defendants. See 39 F.4th at 1134–35.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.4

3 Because Plaintiff refused to accept the magazines with redactions, it was reasonable for ADC to exclude each magazine in its entirety even where the offending content appeared on only one or a few pages. 4 Plaintiff’s motion to supplement the record, filed June 22, 2021, Dkt. 15, is GRANTED. To the extent Plaintiff seeks leave to file certain excerpts of record, Plaintiff’s motion to file under seal, filed December 12, 2022, Dkt. 51, is GRANTED. To the extent Plaintiff seeks to withdraw his previous request to file such records under seal, Plaintiff’s motion for miscellaneous relief, filed January 17, 2023, Dkt. 54, is GRANTED. Accordingly, Plaintiff has leave to file the excerpts without seal. To the extent Plaintiff requests supervised access to the entire record and all filings in this case, Plaintiff’s motion for miscellaneous relief, filed January 17, 2023, Dkt. 54, is DENIED as moot. The parties shall bear their own costs.

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