FILED
NOT FOR PUBLICATION MAR 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONRAD NICHOLS, No. 10-35221
Plaintiff - Appellant, D.C. No. 3:08-cv-01100-BR
v.
MEMORANDUM *
J. JACOBY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Oregon state prisoner Conrad Nichols appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with the search of his cell. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We 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 Nichols’s claims
for denial of access to the courts, denial of due process, and unlawful search and
seizure. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (prisoner must show that he
or she suffered actual injury in order to establish a violation of the right of access
to the courts); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (no Fourteenth
Amendment due process violation where “predeprivation process is
impracticable,” provided that “a meaningful postdeprivation remedy for the loss is
available”); Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (“An inmate
ordinarily has no reasonable expectation of privacy as to his jail cell or his
possessions within it.”).
The district court, however, improperly granted summary judgment on
Nichols’s retaliation claim because there are genuine issues of material fact as to
whether defendants retaliated against Nichols for filing a state habeas petition by
taking his property. See Brodheim v. Cry, 584 F.3d 1262, 1269-73 (9th Cir. 2009)
(discussing five basic elements of a First Amendment retaliation claim).
According to Nichols’s verified complaint, affidavits, and exhibits, as well as
defendants’ own admissions, defendants took Nichols’s property and lost some of
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it, including legal papers from Nichols’s state habeas petition. Nichols alleges in
his verified complaint, which was expressly incorporated into his opposition to
defendants’ motion for summary judgment, that when he asked prison officials
about his missing items, they responded that “maybe [he] shouldn’t be filing
complaints.” While the prison has a legitimate penological interest in enforcing
rules against the possession of contraband, defendants “may not defeat a retaliation
claim on summary judgment simply by articulating a general justification for a
neutral process, when there is a genuine issue of material fact as to whether the
action was taken in retaliation for the exercise of a constitutional right.” Bruce v.
Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003). Therefore, we reverse as to Nichols’s
retaliation claim and remand for further proceedings.
Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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