JOJO EJONGA-DEOGRACIAS, AKA JoJo Ejonga v. STEPHEN D. SINCLAIR, Secretary, Department of Corrections;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOJO EJONGA-DEOGRACIAS, AKA JoJo
Ejonga,
Plaintiff-Appellant,
v.
STEPHEN D. SINCLAIR, Secretary,
Department of Corrections; et al.,
Defendants-Appellees.
No. 21-35211
D.C. No. 2:20-cv-00320-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Washington state prisoner JoJo Ejonga-Deogracias appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First and
Eighth Amendment violations. 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 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).
FILED
MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We
affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Ejonga’s Eighth
Amendment claim concerning a noxious smell because Ejonga failed to raise a
genuine dispute of material fact as to whether defendants were deliberately
indifferent to an excessive risk to inmate health or safety. See Farmer v. Brennan,
511 U.S. 825, 837 (1994) (prison officials are liable for denying a prisoner humane
conditions of confinement only if they know of and disregard a substantial risk of
serious harm).
The district court granted summary judgment on Ejonga’s First Amendment
claim concerning the rejection of photos mailed to him from the King County
prosecutor’s office, applying the four-factor test from Turner v. Safley, 482 U.S. 78
(1987). Defendants contended the policy limiting incoming mail to ten
photographs was needed to reduce mailroom workload, but also argued that Ejonga
could have received the 138 photos if sent in fourteen separate mailings.
Defendants further argued that there was a concern about inmates selling or trading
photos “displaying sexual tones,” but there was no evidence that the photos sent to
Ejonga were sexual in nature. Finally, the district court concluded that Ejonga had
an alternative means of receiving the photos as he could have requested the photos
be sent back to the King County prosecutor’s office and then resent in separate

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batches of ten. But there was no evidence in the record that the King County
prosecutor’s office would have honored this more burdensome request. On this
record, we conclude Ejonga has raised a genuine dispute of material fact as to
whether the policy as applied to Ejonga’s mail is reasonably related to a legitimate
penological interest and as to whether his incoming mail from the prosecutor’s
office, concerning his criminal case, should have been processed as legal mail. See
Turner, 482 U.S. at 89-91 (setting forth the four-factor test for evaluating a prison
regulation which impinges upon a constitutional right); Bahrampour v. Lampert,
356 F.3d 969, 975 (9th Cir. 2004) (Turner analysis applies equally to facial and as
applied challenges). We reverse the district court’s grant of summary judgment on
this claim only and remand for further proceedings.
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).
Defendants’ motion to supplement the record (Docket Entry No. 28) is
granted. We do not consider any other document that was not part of the record
before the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir.
1990).
The parties will bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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