                                                                           FILED
                                 NOT FOR PUBLICATION                        JUN 08 2011

                                                                        MOLLY C. DWYER, CLERK
                         UNITED STATES COURT OF APPEALS                  U .S. C O U R T OF APPE ALS




                                 FOR THE NINTH CIRCUIT



THOMAS M. JAMES,                                    No. 10-15918

                   Plaintiff - Appellant,           D.C. No. 2:10-cv-00510-GMS-JRI

  v.
                                                    MEMORANDUM *
CHARLES L. RYAN; et al.,

                   Defendants - Appellees.



                        Appeal from the United States District Court
                                 for the District of Arizona
                         G. Murray Snow, District Judge, Presiding

                                  Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Thomas M. James, an Arizona state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that a prison

policy banning sexually explicit materials violated his constitutional rights. We


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       *
               *
             The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28

U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We vacate

and remand.

      James alleges that the prison policy banned sexually explicit publications

and all nudity in publications and photos. We are unable to say at this early stage

of the proceeding that James cannot state a claim for a First Amendment violation.

See Dunn v. Castro, 621 F.3d 1196, 1205 n.7 (9th Cir. 2010). Accordingly, we

reverse and remand for further proceedings.

      We do not consider James’s arguments, including those related to retaliation

and amendments to the policy, raised for the first time on appeal. See Travelers

Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008).

      James’s “Motion for Status” filed on October 14, 2010 is denied as moot.

      James’s “Motion for leave of Court; Motion for enlargement of Time” filed

on October 14, 2010 is denied because it does not appear to relate to this appeal.

      James shall bear his costs on appeal.

      VACATED and REMANDED.




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