                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FELTON L. MATTHEWS, Jr.,                        No.    13-16733

                Plaintiff-Appellant,            D.C. No.
                                                2:12-cv-01004-PMP-CWH
 v.

RYAN HESSLER; WILLIAM                           MEMORANDUM*
AMBRIDGE; JAMES G. COX; CARLOS
MORAN, Jr.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                     Philip M. Pro, District Judge, Presiding

                            Submitted March 17, 2017**
                             San Francisco, California

Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      Felton L. Matthews, Jr., a Nevada state prisoner, appeals from the district

court’s dismissal of his 42 U.S.C. § 1983 action. We review de novo the district

court’s summary judgment. Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999).


      *
             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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court correctly held that William Ambridge and James G. Cox

are entitled to qualified immunity as to Matthews’ First Amendment claim. When

a defendant asserts a qualified immunity defense, we inquire “whether the

plaintiff’s allegations, if true, establish a constitutional violation.” Wilkins v. City

of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). We also ask “whether the actions

alleged violate a clearly established constitutional right, where ‘clearly established’

means that ‘it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202

(2001)).

      A reasonable officer could have believed that confiscating Matthews’

sexually explicit hand-drawn comic book was consistent with the First

Amendment. We have upheld regulations prohibiting inmates from possessing

even materials depicting “frontal nudity” on the grounds that such regulations were

reasonably related to legitimate penological interests, including maintaining jail

security, rehabilitating inmates, and reducing sexual harassment of female

detention officers. See Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999).

      Matthews’ comic book, which depicted pedophilic sexual activity, was far

more graphic. Given its contents, as well as Matthews’ status as a convicted child

sex offender, Ambridge and Cox could have reasonably believed that the comic


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book was permissibly forbidden under the Nevada Department of Corrections’

administrative regulations, which prohibited the possession of publications or

magazines containing sexually explicit content “which by its nature poses a threat

to the security, good order, rehabilitation or discipline of the institution.”

        To the extent that Matthews asserts an Equal Protection claim, it fails for the

same reasons. In addition, any Equal Protection claim also fails on a factual basis.

Matthews asserts that he is treated differently from other inmates who are not child

sex offenders because other inmates are allowed “Playboy and Penthouse

magazines” that do not depict “connecting genitalia and excretions.” However,

Matthews’ “comic book” does contain this forbidden content.

        The district court correctly held that Matthews failed to exhaust his Eighth

Amendment and retaliation claims. Matthews does not dispute that he did not

formally grieve his Eighth Amendment claim and that he had not received a

response to his second level grievance as to the retaliation claim before he filed

suit.

        AFFIRMED.




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