David Litmon, Jr., Petitioner-appellant, v. George Smith, Respondent-appellee, 117 F.3d 1425 (9th Cir. 1997)

MEMORANDUM^* 

Litmon, a California state prisoner, appeals the district court's denial of his habeas petition brought under 28 U.S.C. § 2254. He complains that the district court failed to address the claims he presented below, namely, that: (1) he was disciplined in violation of his First Amendment right to refuse to discuss his inmate grievance with Officer Van Gelder, and (2) his disciplinary proceeding constituted retaliation for exercising his right to file a grievance. He therefore seeks reversal and remand for a determination of his claims in the first instance. We affirm with respect to the former claim but reverse and remand with respect to the latter.

There is ample evidence in the record to support the conclusion reached by the Inmate Appeals Branch that Litmon was disciplined for refusing to obey a direct order to return to the building. Litmon offers no specific facts supporting a contrary conclusion. Therefore, we affirm the district court's denial of the habeas petition with respect to his claim that he was unlawfully disciplined for exercising his First Amendment rights.

As for Litmon's claim that prison officials brought the disciplinary proceeding in order to retaliate against him for filing a grievance, however, we conclude that the magistrate did not make specific findings or recommendations as to the proper disposition of the claim. Despite Litmon's timely filing of objections to that effect, the district court simply adopted the magistrate's findings and denied the petition without further discussion. Because the court below never decided the retaliation claim, we reverse and remand so that it may now do so.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART