                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 08 2009

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




                             FOR THE NINTH CIRCUIT



 ROBERT EUGENE MITCHELL,                          No. 08-56393

               Plaintiff - Appellant,             D.C. No. 3:04-cv-00550-WQH-
                                                  WMC
   v.

 W. BRANHAM, sued in individual                   MEMORANDUM *
 capacity; et al.,

               Defendants - Appellees.



                     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

          *
             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
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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