                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 20 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JUAN ANTONIO FALCON,                             No. 13-15173

              Plaintiff - Appellant,             D.C. No. 1:11-cv-00427-LJO-JLT

 v.
                                                 MEMORANDUM*
M. FARLEY, Correctional Officer at Kern
Valley State Prison,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                        Argued and Submitted May 4, 2015
                              Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

      California state prisoner Juan Antonio Falcon appeals the district court’s

grant of summary judgment in this 42 U.S.C. § 1983 action. Falcon’s family used

an approved inmate package vendor to send Falcon a birthday care package. Due

to a disciplinary matter, Falcon was ineligible to receive packages; approximately


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
five months after the package was sent, Correctional Officer M. Farley returned the

package to the vendor. Falcon alleges that Farley violated his First Amendment

right to receive mail by returning the package. We have jurisdiction under 28

U.S.C. § 1291, and we reverse and remand.

      While Falcon is now represented by pro bono counsel, he was pro se before

the district court. We review a district court’s grant of summary judgment de

novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). “In our de

novo review of a district court’s summary judgment ruling, we view the evidence

in the light most favorable to the non-moving party.” Id. “We construe liberally

the filings and motions of a pro se inmate in a civil suit.” Thomas v. Ponder, 611

F.3d 1144, 1150 (9th Cir. 2010).

      The district court erred in holding that the return of Falcon’s package did not

implicate the First Amendment. As both parties agreed at oral argument, Falcon

had a First Amendment right to receive the rock CD contained within his package.

See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam) (“Appellant, as

a prison inmate, enjoys a First Amendment right to send and receive mail.”); see

also Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011) (“A First Amendment

interest in distributing and receiving information does not depend on a recipient’s

prior request for that information.”).


                                         2
      In addition, the district court failed to view the facts in the light most

favorable to the nonmoving party, Falcon. Prison officials may limit a prisoner’s

First Amendment rights if the limitation is “‘reasonably related’ to legitimate

penological objectives.” See Turner v. Safley, 482 U.S. 78, 87 (1987). Thus, the

key question is whether Farley’s return of Falcon’s package to the vendor was

reasonably related to a legitimate penological objective. While Farley represents

that the package was returned pursuant to prison regulations, Falcon not only

contests the factual accuracy of that statement, but points to the undisputed fact

that Farley’s superior Sergeant Marta ordered the return of his (and others’)

packages and asserts that Farley actually withheld his package as part of a

retaliatory extortion scheme. If the package was actually returned to the vendor as

part of such a scheme, and not pursuant to prison regulations, its return is not

reasonably related to a legitimate penological objective. See id. Accordingly, a

genuine dispute of material fact exists as to the reason for the package’s return, and

the grant of summary judgment was improper. Fed. R. Civ. P. 56. We therefore

reverse the grant of summary judgment and remand for proceedings consistent

with this disposition.

      REVERSED and REMANDED.




                                           3
                                                                               FILED
Falcon v. Farley, No. 13-15173                                                  MAY 20 2015

                                                                            MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS



      I do not believe that Falcon’s passing reference to a retaliatory extortion

scheme is sufficient to raise a genuine dispute of material fact. The only mention

of such a scheme in the record appears in a state government claims form prepared

by Falcon:

      Property officer Farley returned personal package [sic] when claimant
      refused to donate 25% of his property in an extortion scheme as a form
      of retaliation, which has caused much distress to claimant.

As far as the record reveals, the snacks, hygiene items, and rock CD in Falcon’s

package were the entirety of Falcon’s property. That Farley would attempt to

extort any of these meager items from Falcon strikes me as implausible. The

record also suggests no conduct on Falcon’s part for which Farley might be

tempted to seek “retaliation.” Even when viewed in the light most favorable to

Falcon, in my view, Falcon’s assertion is too implausible and conclusory to permit

a reasonable inference that Farley returned the package as part of an extortion

scheme. See FTC v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th

Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any

supporting evidence, is insufficient to create a genuine issue of material fact.”). I

would affirm the judgment of the district court.
