                                                                           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                             NOT FOR PUBLICATION                            MAR 18 2011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


                                            2                                     10-35221
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.




                                           3                                    10-35221
