                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          MAR 19 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

JAMES DANIEL ALEXANDER,                          No. 12-16848

               Plaintiff - Appellant,            D.C. No. 2:08-cv-02773-MCE-
                                                 KJN
  v.

WEIDEMEIRER; et al.,                             MEMORANDUM*

               Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Morrison C. England, Jr., Chief Judge, Presiding

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       California state prisoner James Daniel Alexander appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging, among

other claims, constitutional violations in connection with the confiscation of

several adult magazines. 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 9th Cir. R. 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. Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (summary

judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under

28 U.S.C. § 1915A). We affirm.

      The district court properly granted summary judgment on Alexander’s First

Amendment claim regarding his right to free expression because Alexander failed

to raise a genuine dispute of material fact as to whether the confiscation of his

adult magazines violated his right to free expression. See Turner v. Safley, 482

U.S. 78, 89-91 (1987) (setting forth factors for determining whether a regulation

unduly infringes on a constitutional right); Mauro v. Arpaio, 188 F.3d 1054, 1059-

62 (9th Cir. 1999) (en banc) (jail’s ban on sexually explicit materials did not

violate the First Amendment); see also Frost v. Symington, 197 F.3d 348, 357 (9th

Cir. 1999) (clarifying the circumstances under which the government must produce

evidence in support of a common-sense connection between a legitimate objective

and a prison regulation).

       The district court properly granted summary judgment on Alexander’s other

claims arising from the confiscation of his adult magazines because Alexander

failed to raise a triable dispute as to any element of those claims. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (discussing the sufficiently serious deprivation

requirement of an Eighth Amendment claim); City of Cleburne v. Cleburne Living


                                           2                                      12-16848
Center, 473 U.S. 432, 439 (1985) (the Equal Protection Clause essentially requires

that all persons similarly situated be treated alike); Lynch v. Donnelly, 465 U.S.

668, 678-679 (1984) (identifying guidelines for analyzing Establishment Clause

claims); Hudson v. Palmer, 468 U.S. 517, 530 (1984) (“[P]risoners have no

legitimate expectation of privacy, and the Fourth Amendment’s prohibition on

unreasonable searches does not apply in prison cells.”).

      The district court properly dismissed Alexander’s due process claim, his

claim alleging improper denial of conjugal visits, and his access-to-courts claim

because Alexander failed to allege sufficient facts to state a claim for relief. See

Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974) (setting forth procedural due

process requirements in prison disciplinary proceedings); Silva v. DiVittorio, 658

F.3d 1090, 1102-04 (9th Cir. 2011) (requiring factual allegations showing actual

injury in order to state a First Amendment access-to-courts claim); Gerber v.

Hickman, 291 F.3d 617, 621-22 (9th Cir. 2002) (en banc) (prisoners have no

constitutional right while incarcerated to conjugal visits).

      The district court did not abuse its discretion by denying Alexander’s motion

to reconsider because Alexander failed to establish grounds warranting such relief.

See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

(9th Cir.1993) (standard of review and grounds for reconsideration under Fed. R.


                                           3                                    12-16848
Civ. P. 59(e)).

        The district court did not abuse its discretion by denying Alexander’s motion

to vacate or modify the protective order, his motions to compel, and his motion for

subpoenas duces tecum. See Fed. R. Civ. P. 26(b)(1)-(2) (discussing the

permissible scope of discovery); Fed. R. Civ. P. 26(c)(1) (circumstances under

which entry of protective order is appropriate); Hallet v. Morgan, 296 F.3d 732,

751 (9th Cir. 2002) (setting forth standard of review and describing the district

court’s broad discretion to deny discovery).

        We do not consider issues raised in the opening brief which are not

supported by argument, nor issues and arguments incorporated by reference on

appeal. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (applying

requirements of Fed. R. App. P. 28 to pro se appellant’s submissions on appeal).

        We deny Alexander’s motion to schedule oral argument, filed on January 14,

2013.

        AFFIRMED.




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