Rand v. Rowland
| Citation | 113 F.3d 1520 |
| Decision Date | 03 June 1997 |
| Docket Number | No. 95-15428,95-15428 |
| Parties | , 97 Cal. Daily Op. Serv. 4152, 97 Daily Journal D.A.R. 7015 Lee A. RAND, Plaintiff-Appellant, v. James ROWLAND; Nadim Khoury, M.D.; William Bunnell; Roy Lee Johnson; Leo R. Estes, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Amy E. Margolin, Jackson, Tufts, Cole & Black, San Jose, CA, for plaintiff-appellant.
D. Kenneth Baumgarten, Deputy Attorney General, Sacramento, CA, for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California, David F. Levi, District Judge, Presiding. D.C. No. CV-91-0680 DFL/JFM.
Before: SCHROEDER and O'SCANNLAIN, Circuit Judges, and KELLEHER, * District Judge.
Opinion by Judge Kelleher; Concurrence by Judge O'Scannlain.
On April 20, 1989, Lee A. Rand ("Appellant"), a state prison inmate, filed a civil rights action pursuant to 42 U.S.C. § 1983 against several prison officials-most of them medical officers (the "Defendants" or "Appellees"). Appellant's complaint is based on his temporary placement and treatment in the infirmary of the California Correctional Institution at Tehachapi ("CCI"), where, after testing positive for the human immunodeficiency virus (the "HIV"), he resided for six months pending transfer to a true medical facility. On September 30, 1993, and January 17, 1995, by way of two separate orders, the district court granted Defendants' motion for summary judgment. Because the district court did not comply with the "pro se prisoner" requirements of Federal Rule of Civil Procedure 56, the orders granting Defendants' motion for summary judgment are vacated and the case remanded for further proceedings consistent with this Court's opinion. The orders are affirmed only insofar as they represent the determination by the district court not to appoint counsel.
On April 20, 1989, Appellant filed a civil rights complaint in which he stated that he was confined to the prison infirmary at CCI for six months in 1988 and 1989, after he tested positive for the HIV. Appellant was "temporarily" placed in the infirmary pending his transfer to the California Medical Facility in Vacaville ("CMF"), which was better able to care for inmates carrying the HIV. Appellant claims his Eighth Amendment constitutional rights were violated during that six month period at CCI, when he was allegedly denied access to exercise, proper medical care, clothing and heating, and personal hygiene items. Further claims were asserted under the First Amendment () and the Fourteenth Amendment (). After filing his complaint, Appellant filed two motions for the appointment of counsel; both were, in effect, denied.
The magistrate court reviewing this matter offered its first Findings and Recommendations on July 27, 1993. On September 30, 1993, the district court issued an order (the "1993 Order") adopting only certain recommendations from this report, one being the grant of summary judgment in favor of James Rowland (the former Director of the California Department of Corrections), on the grounds that he had been sued only in his supervisorial capacity. At the heart of the 1993 Order was a finding that Defendants had not adequately briefed the issues concerning the merits of five of Rand's claims until they filed their Objections to the Magistrate's Findings and Recommendations. For that reason, the district court declined to adopt the magistrate's findings, and, in effect, referred the matter back to the magistrate court for further findings and recommendations concerning the remaining claims.
On November 10, 1994, the magistrate court issued its second Findings and Recommendations, recommending that Defendants' motion be denied on the issue of qualified immunity, that Appellant's claims for injunctive and declaratory relief be dismissed as moot, and that Appellant's claims concerning medical care, heating and clothing, out-of-cell exercise, access to clergy, and access to the law library be dismissed because Appellant did not suffer any constitutional deprivations. On January 17, 1995, the district court entered an order (the "1995 Order") adopting these second Findings and Recommendations and dismissing the action in its entirety. Judgment was entered on January 17, 1994. The Appellant then appealed from the denials of counsel, the 1993 Order, and the 1995 Order.
Appellant offers many challenges to the district court's 1993 and 1995 Orders. Because we find that the Orders must be vacated and the matter remanded based on the failure of the district court to provide proper notice, those challenges will not be discussed. We do, however, examine the district court's decision not to appoint counsel and discuss this issue below.
It cannot be disputed that the district court itself, not the moving party, must provide to a pro se prisoner litigant both notice and explanation as to what a Rule 56 motion is and what the litigant's responsibilities are thereunder. Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir.1995) (per curiam) (). In Arreola, we wrote, "[a]lthough [the moving party] argues that adequate notice was provided to [the pro se litigant] by the citation in [the moving party]'s notice of motion to Klingele and Rule 56, Klingele requires that the notice be provided by the district court. " Id. (emphasis added) (citing Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988)). On the facts of the case before us, however, such notice was not provided by the court and, instead, was presented to the Appellant by the Defendants, in Defendants' notice of motion and motion for summary judgment. 1 This is insufficient.
While addressing a district court's conversion of a motion to dismiss into a summary judgment motion, we have recently held that notice requirements as to pro se prisoners are extremely strict. Anderson v. Angelone, 86 F.3d 932, 935 (9th Cir.1996) (citing Klingele, 849 F.2d at 411-12) ( that "[t]he District courts are obligated to advise prisoner pro per litigants of Rule 56 requirements"). In Anderson we went on to state that the "district court in this case gave no such advice." Id. (emphasis added). On the facts at hand, though Appellant arguably received notice, it was provided neither by the district court nor by the magistrate court. The notice having not been provided by the correct entity, Appellees nevertheless attempt to argue that the explanation provided in their notice of motion for summary judgment was sufficient because (1) it substantively discusses the rule, and (2) Appellants' actions and filings evidence at least a moderate understanding of the summary judgment process. However, we have previously held that actual knowledge or any level of sophistication in legal matters does not obviate the need for judicial explanation. In Klingele, we "decline[d] appellees' invitation to erode the [notice] rule by allowing district courts to avoid giving the required advice based on a determination that a prisoner has the requisite sophistication in legal matters," and noted that "[d]istrict courts are obligated to advise prisoner pro per litigants of Rule 56 requirements." 849 F.2d at 411-12. We affirm that holding and vacate the district's order granting summary judgment. 2
In so finding, we note, as has the Seventh Circuit, that "we are naturally reluctant to impose additional duties on our overburdened district courts." Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982). Yet this burden, as upheld today, is, in reality, carried by defendants in prisoner civil rights cases, rather than resting on district judges' shoulders. See id. As the Seventh Circuit aptly stated when discussing its similar, though not identical, notice rule, "[m]ost defendants in prisoners' rights cases in this circuit are represented by one of the[ ] state attorneys general in the circuit, who we are sure will cooperate in implementing the new rule with minimum inconvenience to our harassed district judges." Id. at 103. In the Ninth Circuit, the notice rule is expressly limited to pro se prisoners. Jacobsen v. Filler, et al., 790 F.2d 1362, 1364-67 (9th Cir.1985). Thus, as a practical matter, it is the duty of the state and related parties in this type of litigation to provide to the district court proposed notices that properly and succinctly convey the information mandated below.
A related issue on appeal is the form and substance that such court-issued notice must take. We have recently held, and there can be no dispute, that the district court's heightened duties as to pro se prisoners encompass an obligation "to advise prisoner pro per litigants of Rule 56 requirements." Anderson, 86 F.3d at 934 (citing Klingele, 849 F.2d at 411-12). The Anderson court went on to state that "[t]his requires the district court to tell the prisoner about his 'right to file counter-affidavits or other responsive materials and [to] alert[ ][him] to the fact that his failure to so respond might result in the entry of summary judgment against him.' " Id. (). Beyond this language, we are yet to provide more detailed instruction as to what the requisite notice must contain. With the goal of delineating the general boundaries of what constitutes acceptable notice, we now examine approaches employed in other circuits.
As a preliminary matter, we are in agreement with other jurisdictions that clear, understandable language must be used in the notice provided. See, e.g., Moore v. State of Fla., 703 F.2d 516, 521 (11th Cir.1983) (...
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