Rand v. Rowland

Decision Date27 August 1998
Docket NumberNo. 95-15428,95-15428
Parties, 98 Cal. Daily Op. Serv. 6650, 98 Daily Journal D.A.R. 9270 Lee A. RAND, Plaintiff-Appellant, v. James ROWLAND; Nadim Khoury, M.D., William Bunnell; Roy Lee Johnson; Leo R. Estes, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Amy E. Margolin, Jackson, Tufts, Cole & Black, San Jose, California, for plaintiff-appellant.

D. Kenneth Baumgarten, Deputy Attorney General, Sacramento, California, 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-91-00680 DFL.


Opinion by Judge TASHIMA; Concurrence by Judge REINHARDT; Concurrence by Judge THOMAS; Dissent by Judge KLEINFELD.

TASHIMA, Circuit Judge:

We address the continued viability and application of the "pro se prisoner fair notice" requirement of Rule 56 of the Federal Rules of Civil Procedure ("Rule 56") adopted in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), and modified in Arreola v. Mangaong, 65 F.3d 801 (9th Cir.1995), to require that the notice be given only by the district court itself. The three-judge panel ("panel") held that remand was required because the district court failed to give the notice required by these cases to the pro se prisoner plaintiff, i.e., that notice given by the moving party was insufficient under Arreola. Rand v. Rowland, 113 F.3d 1520, 1522-24 (9th Cir.1997). On en banc review, we reaffirm the central holding of Klingele that a pro se prisoner is entitled to fair notice of the requirements of Rule 56. We further hold, however, that because Klingele 's central concern was that the prisoner receive fair notice of the requirements of Rule 56 and the consequences of such a motion, Klingele 's notice purpose is fulfilled even though the prisoner does not receive the notice from the district court, so long as notice is given and We find, however, that the notice given by defendants in this case was deficient in several respects. Accordingly, we withdraw the panel's opinion concerning Klingele 's fair notice requirement, 1 and reverse the district court's grant of summary judgment.

its contents are complete. We therefore overrule Arreola v. Mangaong, 65 F.3d 801.


Lee A. Rand ("Rand") is a California state prison inmate. He filed a civil rights complaint under 42 U.S.C. § 1983 against several prison officials, most of whom are medical officers ("defendants"). Rand was confined to the prison infirmary of the California Correctional Institution at Tehachapi ("CCI"), after testing HIV-positive. He remained at CCI for six months pending his transfer to the California Medical Facility at Vacaville, which was better able to care for HIV-positive inmates.

Rand claims that his Eighth Amendment rights were violated while he was confined at CCI because he was allegedly denied access to exercise, proper medical care, clothing and heating, and personal hygiene items. He asserted further claims under the First Amendment (right to telephone, right to free exercise of religion) and the Fourteenth Amendment (due process, equal protection). Rand twice asked the district court to appoint counsel for him, but both requests were denied.

Defendants moved for summary judgment on all of Rand's claims. Their motion contained a section entitled, "Notice of Rules Relating To Summary Judgment." 2

In 1993, the district court adopted certain of the recommendations of the report of the magistrate judge to whom the matter had been referred (the "1993 Order"). The court granted summary judgment for defendant In 1994, the magistrate judge issued his second report which recommended that defendants' motion be denied on the issue of qualified immunity, that Rand's claims for injunctive and declaratory relief be dismissed as moot, and that his claims regarding medical care, heating and clothing, out-of-cell exercise, access to clergy, and access to the law library be dismissed because Rand had not suffered any constitutional deprivations. On January 17, 1995, the district court adopted the magistrate judge's second report and recommendation, and dismissed the action in its entirety (the "1995 Order"). Rand then appealed from the denials of his requests for counsel, the 1993 Order, and the 1995 Order.

James Rowland, the former Director of the California Department of Corrections, on the ground that he had been sued only in his supervisory capacity. The 1993 Order also concluded that defendants had not adequately briefed the issues relating to the merits of five of Rand's claims until they filed their Objections to the Magistrate's Findings and Recommendations. Therefore, the district court declined to adopt the magistrate judge's recommendation on these issues and referred these claims back to the magistrate judge.

The panel concluded that both the 1993 and the 1995 Orders must be vacated and the matter remanded because the district court failed to provide Rand with the Rule 56 notice required by Klingele, 849 F.2d 409. It held that the Klingele-type notice given by defendants was insufficient because Arreola, 65 F.3d 801, required that the notice be given by the court itself. See Rand, 113 F.3d at 1522-23. We then took the case en banc to review the validity and application of the Klingele rule. Rand v. Rowland, 122 F.3d 39 (9th Cir.1997).

A. The Fair Notice Requirement Historical Background

In reviewing the fair notice requirement, we are cognizant that we are not writing on a clean slate. Rather, we reexamine a doctrine that we adopted a decade ago and which has been in existence for three decades. See Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir.1968) (per curiam) (the seminal "fair notice" case which devised the rule that district courts should provide pro se prisoners with "fair notice of the requirements of the summary judgment rule"). Our province and obligation as an en banc court "is to review the current validity of challenged prior decisions." United States v. Aguon, 851 F.2d 1158, 1167 n. 5 (9th Cir.1988) (en banc).

In reexamining its prior holdings, the Supreme Court considers "a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (joint opinion of O'Connor, Kennedy and Souter, JJ.). The Court will inquire whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Id. at 854-55, 112 S.Ct. 2791. Similar concerns permeate our analysis here. See also Aguon, 851 F.2d at 1175-76 (Reinhardt, J., concurring).

As we have noted, the fair notice rule originated in the District of Columbia Circuit thirty years ago. See Hudson, 412 F.2d 1091. Emphasizing the disabilities of incarceration, the court held that before granting summary judgment against a pro se prisoner, the district court was required to provide the prisoner with "fair notice" of the requirements of the summary judgment rule. Id. at 1094. Five other circuits, including ours, followed Hudson and adopted the fair notice requirement. See Klingele, 849 F.2d 409; Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (holding that "summary judgment should not be entered by default against a We first approved of Hudson 's fair notice requirement in Jacobsen, 790 F.2d at 1364 n. 4, where we refused to apply the rule to pro se non-prisoners. Id. at 1364-67. We expressly adopted Hudson 's fair notice requirement in Klingele, where we held that "[d]istrict courts are obligated to advise prisoner pro per litigants of Rule 56 requirements." 849 F.2d at 411-12. In Klingele, we adopted a bright-line rule that district courts were required to give the required notice in all cases; we refused to be drawn into a "particularized analysis of each prisoner litigant's sophistication." Id. at 411. Several years later, we interpreted Klingele as requiring that the requisite notice could be given only by the district court itself. Arreola, 65 F.3d at 802 (reversing and remanding case where summary judgment movant had provided pro se prisoner with notice of Rule 56's requirements).

pro se plaintiff who has not been given any notice that failure to respond will be deemed a default"); Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985) (holding that "an adverse party must be given express, ten-day notice of the summary judgment rules, of his right to file affidavits or other material in opposition to the motion, and of the consequences of default"); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982) (requiring that "a prisoner who is a plaintiff in a civil case and is not represented by counsel is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment"); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975) (per curiam) (requiring "that the plaintiff be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him"). Only one circuit has refused to adopt...

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