Gary Goodwin v. Josh Hall , 508 F. App'x 670 ( 2013 )

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NOT FOR PUBLICATION FEB 14 2013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
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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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