MARK STEVEN PRICE, Plaintiff-Appellant, v. JOSEPH ARPAIO, Maricopa County Sheriff; FRANK R. WAELDE, Commander, Madison Jail; LOGAN, Lt., Maricopa County Sheriff's Office; OFFICER A # 3771, Maricopa County Sheriff's Office; OFFICER A # 4196, Maricopa County Sheriff's Office, Defendants-Appellees.



No. 98-15235



UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



1998 U.S. App.



September 14, 1998 **, Submitted



** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4.



September 24, 1998, Filed



NOTICE: [*1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.



SUBSEQUENT HISTORY: Reported in Table Case Format at: 1998 U.S. App.



PRIOR HISTORY: Appeal from the United States District Court for the District of Arizona. D.C. No. CV-93-02327-BGS. Barry Silverman, Magistrate Judge, Presiding.



DISPOSITION: AFFIRMED in part, VACATED in part, and REMANDED.




COUNSEL: MARK STEVEN PRICE, Plaintiff - Appellant, Pro se, Florence, AZ.



For JOSEPH ARPAIO, FRANK R. WAELDE, LOGAN, Lt., OFFICER A # 3771, OFFICER A # 4196, Defendants - Appellees: Joel Rudd, MARICOPA COUNTY ATTORNEY'S OFFICE, Phoenix, AZ.



JUDGES: Before: O'SCANNLAIN, FERNANDEZ, and TASHIMA, Circuit Judges.



OPINION:

MEMORANDUM *



* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.



Mark Steven Price, an Arizona state prisoner, appeals [*2] pro se the district court's grant of summary judgment in favor of the defendants in his 42 U.S.C. § 1983 action. We review de novo the district court's grant of summary judgment. See Tellis v. Godinez, 5 F.3d 1314, 1315-16 (9th Cir. 1993). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.

Price contends that the district court erred by dismissing his claim that challenged the "publisher only" policy. Because Price has standing to bring a facial overbreadth challenge to the policy, the district court erred by granting summary judgment in favor of defendants based on a lack of jurisdiction. See Mauro v. Arpaio, 147 F.3d 1137, 1998 WL 550190, at *3 (9th Cir. 1998); see also Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996) (noting that while the Supreme Court has upheld a publishers only challenge applied exclusively to hardback books, a broader ban "may not survive challenge").

Because Maricopa County's "sexually explicit" material policy impinges upon the rights of inmates to receive material protected by the First Amendment, [*3] the district court erred by granting judgment in favor of the defendants on this claim. See Arpaio, 147 F.3d 1137, 1998 WL 550190, at *3.

With respect to Price's claim that the district court erred by dismissing the claims that challenged the photograph limitation rule and the prohibition of mail containing stamps or envelopes, we conclude that Price failed to allege that he "personally suffered some actual or threatened injury." See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983).

To the extent Price claims that his constitutional rights were violated by: (1) the rejection of one package containing over fifty pieces of mail; (2) the rejection of his mail containing credit cards; and (3) the implementation of the "correct format" mail policy, we conclude that there is no genuine issue of material fact as to whether the rejection of his mail was based on a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 89-91, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) (establishing the four-part test to determine the reasonableness of a challenged regulation); O'Keefe v. Van Boening, 82 F.3d 322, 325-326 (9th Cir. 1996). [*4] n1



n1 Insofar as Price contends that a genuine issue of material fact exists as to the number of letters contained in the package from his father and as to the size and character of the package, we conclude that these facts are not material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (stating that material facts are those that under governing law may affect the outcome of the case).



To the extent Price alleges that the rejection of his mail policy was not reasonably related to a legitimate penological interest, Price failed to provide sufficient evidence to support his allegation. See Turner, 482 U.S. at 89-91.

To the extent Price alleges that the rejection of his incoming legal mail denied him access to the courts, we conclude that Price failed to establish a genuine issue of material fact because he has not demonstrated any actual injury. See Lewis v. Casey, 518 U.S. 343, 355, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). [*5]

Price contends that the procedure for rejecting his incoming mail lacked adequate due process safeguards. Because Price was notified of the rejection of his incoming mail, he protested the decision, and the protest was reviewed by an official other than the one who originally rejected the correspondence, due process was satisfied. See Procunier v. Martinez, 416 U.S. 396, 418-19, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989).

Price contends that the district court erred by denying his motion for leave to file an amended complaint and a supplemental complaint because they were untimely. This contention lacks merit because Price failed to establish good cause for his delay in filing his amended and supplemental complaints. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

AFFIRMED in part, VACATED in part, and REMANDED for further proceedings.