Alan Dohner v. Robert Depweg

474 F. App'x 714

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 2012
• Docket: 09-57010
• Status: Unpublished

Opinion

MEMORANDUM **

Alan R. Dohner, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations in connection with a criminal investigation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. S.E.C. v. Nite, 207 F.3d 1134, 1135 (9th Cir.2000) (per curiara). We vacate and remand.

Before summary judgment is granted in a pro se prisoner’s action, the pro se prisoner must be provided with fair notice of the requirements of the summary judgment rule. See Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir.1998) (en banc); see also Fed.R.Civ.P. 56(e). It is undisputed that Dohner, who was a prisoner proceeding pro se at the time that summary judgment was filed, was not provided with the notice required by Rand.

Contrary to appellees’ contention, the error was not harmless because Dohner had not received Rand notice in prior recent litigation, and the record does not disclose that he had a complete understanding of the requirements of Rule 56. See Rand, 154 F.3d at 961-62 (explaining that “harmless error review is inappropriate in most cases” and refusing to engage in “subjective scrutiny of the prisoner’s pleadings”).

Therefore, we vacate the district court’s judgment and remand for further proceedings.

Dohner’s pending motion to for leave to file a supplemental brief, filed on February 29, 2012, is denied as moot.

VACATED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.