NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BENJAMIN BARSTAD, No. 15-35862
Plaintiff-Appellant, D.C. No. 2:14-cv-00523-BJR
v.
MEMORANDUM*
EARL X WRIGHT, Director of Prisons
Command B; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Washington state prisoner James Benjamin Barstad appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
violations of the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo the district court’s ruling on cross-motions for
summary judgment. Guatay Christian Fellowship v. County of San Diego, 670
F.3d 957, 970 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment for defendants on
Barstad’s access-to-courts claim because Barstad failed to raise a genuine dispute
of material fact as to whether defendants caused an actual injury to a nonfrivolous
claim. See Lewis v. Casey, 518 U.S. 343, 348-49, 354-55 (1996) (setting forth
elements of an access-to-courts claim and actual injury requirement).
The district court properly granted summary judgment for defendants on
Barstad’s free exercise claim because Barstad failed to raise a genuine dispute of
material fact as to whether the initial rejection of outgoing mail containing pre-
franked envelopes, two incoming pieces of mail with noncompliant return address
information, and an incoming package of oils, herbs, and stones was not
reasonably related to legitimate penological interests. See Turner v. Safley, 482
U.S. 78, 89 (1987) (a prison regulation that “impinges on inmates’ constitutional
rights” is valid “if it is reasonably related to legitimate penological interests”).
The district court properly granted summary judgment for defendants on
Barstad’s RLUIPA claim based on the same mail rejections because Barstad failed
to meet his initial burden to demonstrate that the rejections constituted a substantial
burden on the exercise of his religious beliefs. See Warsoldier v. Woodford, 418
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F.3d 989, 994, 996 (9th Cir. 2005) (prisoner has initial burden to demonstrate that
prison policies “constitute a substantial burden on the exercise of his religious
beliefs” and prison policy imposes substantial burden when it “intentionally puts
significant pressure on inmates . . . to abandon their religious beliefs”).
The district court properly granted summary judgment for defendants on
Barstad’s free speech claim because Barstad failed to raise a genuine dispute of
material fact as to whether: (1) the regulation of his incoming mail was not
reasonably related to the prison’s legitimate penological interests in prison safety
and security; (2) the regulation of his outgoing mail did not further a substantial
governmental interest in prison safety and security; or (3) the interruption of his
prisoner orientation presentation and decision to disallow his participation in future
orientations interfered with legitimate penological objectives. See Thornburgh v.
Abbott, 490 U.S. 401, 413-19 (1989) (setting forth factors for evaluating claim
regarding regulation of incoming mail); Procunier v. Martinez, 416 U.S. 396, 413-
14 (1974) (setting forth factors for evaluating claim regarding regulation of
outgoing mail), overruled on other grounds by Thornburgh, 490 U.S. 401; Jones v.
N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129-32 (1977) (setting forth
standards regarding regulation of expressive or associational conduct).
The district court properly granted summary judgment for defendants on
Barstad’s retaliation claim because Barstad failed to raise a genuine dispute of
3 15-35862
material fact as to whether defendants retaliated against him because of his
complaints about mail rejections or whether the adverse conduct was not
reasonably related to a legitimate correctional goal. See Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the
prison context).
We reject as without merit Barstad’s contentions regarding the district
court’s denial of his motion to compel joinder and Barstad’s “jurisdictional
concerns” set forth in his opening and reply briefs.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture
arguments for an appellant, and a bare assertion does not preserve a claim . . . .”).
AFFIRMED.
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