Juan Falcon v. M. Farley

dissenting:

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:

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.

NOT FOR PUBLICATION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…

MEMORANDUM *

California state prisoner Juan Antonio Falcon appeals the district court’s grant of summary judgment in this 42 U.S.C. § 1988 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 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…