                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 14 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



GARY LEE GOODWIN,                                No. 11-35630

               Plaintiff - Appellant,            D.C. No. 6:11-cv-06068-HO

  v.
                                                 MEMORANDUM *
JOSH HALL; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Gary Lee Goodwin appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action seeking a declaratory judgment that a

restriction on his post-prison supervision violates his First Amendment rights. We




          *
             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).
review de novo, Patel v. City of Los Angeles, 686 F.3d 1085, 1087 (9th Cir. 2012),

and may affirm on any basis supported by the record, Johnson v. Riverside

Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part,

vacate in part, and remand.

      Summary judgment was proper as to Goodwin’s retaliation claim because

Goodwin failed to raise a genuine dispute of material fact as to whether defendants

have restricted his ability to associate or reside with Mr. Sharp in retaliation for

Goodwin’s protected conduct. See Karam v. City of Burbank, 352 F.3d 1188, 1194

(9th Cir. 2003) (holding in the First Amendment retaliation context that

speculation as to the defendant’s “improper motive does not rise to the level of

evidence sufficient to survive summary judgment”).

      The district court properly granted summary judgment on Goodwin’s free

association claim to the extent that defendants have restricted Goodwin’s ability to

reside with Mr. Sharp, because Goodwin failed to raise a triable dispute as to

whether this restriction does not properly advance the state’s interest in deterrence,

rehabilitation, and the protection of the public. See United States v. Soltero, 510

F.3d 858, 866 (9th Cir. 2007) (per curiam) (a supervised release condition may

restrict First Amendment rights if the restriction is reasonably related to the goals




                                            2                                    11-35630
of deterrence, protection of the public, and/or defendant rehabilitation, and if it

involves no greater deprivation of liberty than is reasonably necessary).

      However, to the extent that the challenged restriction prohibits Goodwin

from associating with Mr. Sharp in general, summary judgment was premature on

this record because there is a triable dispute as to whether prohibiting Goodwin

from associating with Mr. Sharp involves no greater liberty deprivation than is

reasonably necessary to protect the state’s interests. See Soltero, 510 F.3d at 866.

      Contrary to Goodwin’s contention, defendants’ failure to respond to his

concise statmeent of material facts does not constitute a concession of the alleged

facts therein. See D. Or. L.R. 56-1(a).

      We do not address Goodwin’s argument that the defendants did not have the

power under Oregon law to impose the challenged restriction because it is

irrelevant to his First Amendment challenge.

      Accordingly, we vacate and remand for further proceedings consistent with

this disposition.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part; VACATED in part; and REMANDED.




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