Robert Eugene Mitchell v. W. Branham, sued in individual capacity;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
tk/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT EUGENE MITCHELL,
Plaintiff - Appellant,
v.
W. BRANHAM, sued in individual
capacity; et al.,
Defendants - Appellees.
No. 08-56393
D.C. No. 3:04-cv-00550-WQH-
WMC
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Robert Eugene Mitchell, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
FILED
DEC 08 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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defendants retaliated against him for exercising his First Amendment rights. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Bruce v. Ylst,
351 F.3d 1283, 1288 (9th Cir. 2003). We reverse and remand for further
proceedings.
Although the defendants submitted evidence suggesting that Mitchell was
expelled from the prison law library and that his legal materials were confiscated
pursuant to a legitimate prison policy, Mitchell’s sworn declaration and deposition
testimony indicate that the policy was not enforced against other inmates, and that
it was only enforced against him in reprisal for filing law suits against prison
guards. Viewed in the light most favorable to Mitchell, the evidence raises a
genuine issue of material fact as to whether the defendants’ actions reasonably
advanced a legitimate correctional goal. See id. at 1289-90 (reversing summary
judgment where evidence suggested that enforcement of legitimate prison
procedure may have been a cover or ruse to retaliate against an inmate for filing
grievances).
Accordingly, we reverse summary judgment for the defendants and remand
for further proceedings.
REVERSED and REMANDED.

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