David Pedersen v. Tracy Schneider

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID J. PEDERSEN, No. 22-35012 Plaintiff-Appellant, D.C. No. 3:21-cv-05121-RSM v. MEMORANDUM* TRACY SCHNEIDER, Correctional Manager, Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding Submitted January 18, 2023** Before: GRABER, PAEZ, and NGUYEN, Circuit Judges. David J. Pedersen, a Washington state prisoner, appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging a First Amendment violation in connection with the rejection of outgoing mail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s * 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). decision on cross-motions for summary judgment. JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016). We affirm. The district court properly granted summary judgment for defendant because Pedersen failed to raise a genuine dispute of material fact as to whether the rejected outgoing letter was not obscene or whether the prison’s policy regulating outgoing mail did not further a substantial government interest. See Procunier v. Martinez, 416 U.S. 396, 413 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) (explaining that the First Amendment is not violated by regulation of outgoing prisoner mail which furthers a substantial government interest and is no greater than necessary to protect that interest); Miller v. California, 413 U.S. 15, 23-26 (1973) (setting forth test for determining obscene material unprotected by the First Amendment). AFFIRMED. 2 22-35012