Jerry Dempsey McIntyre v. Sherman Hatcher, Robert Miller, Lonnie Hammergran, Frankie Sue Del Papa

103 F.3d 139, 1996 U.S. App. LEXIS 36421, 1996 WL 674148

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 1996
• Docket: 96-15388
• Status: Unpublished

Opinion

103 F.3d 139

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Jerry Dempsey McINTYRE, Plaintiff-Appellant,
v.
Sherman HATCHER, Robert Miller, Lonnie Hammergran, Frankie
Sue Del Papa, Defendants-Appellees.

No. 96-15388.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 18, 1996.*
Decided Nov. 20, 1996.

Before: PREGERSON, REINHARDT, and T.G. NELSON, Circuit Judges.

MEMORANDUM**

Jerry McIntyre, a Nevada state prisoner, appeals pro se the district court's summary judgment in favor of prison officials in McIntyre's 42 U.S.C. § 1983 action. We vacate and remand pursuant to Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988), because the district court failed to advise McIntyre of the requirements of Fed.R.Civ.P. 56. See Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir.1995) (per curiam).

We affirm the district court's denial of McIntyre's motion for class certification. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (finding that non-attorney may not represent others than himself); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978) (stating that the named representative of a class action "must appear able to prosecute the action vigorously through qualified counsel").

We deem waived McIntyre's appeal from the denial of his motion for appointment of counsel because he raises the issue for the first time in his reply brief. See Eberle v. City of Anaheim, 901 F.2d 814, 817 (9th Cir.1990).

Each party shall bear its own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED in part.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3