Miller v. Gardner

Ninth Circuit

Miller v. Gardner

103 F.3d 139, 1996 U.S. App. LEXIS 36438, 1996 WL 671993

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 7, 1996

Docket96-35399

StatusUnpublished

This text of 103 F.3d 139 (Miller v. Gardner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Miller v. Gardner, 103 F.3d 139, 1996 U.S. App. LEXIS 36438, 1996 WL 671993 (9th Cir. 1996).

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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NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Samuel W. MILLER, Plaintiff-Appellant,
v.
Richard G. GARDNER; Larry Laird; Victor Vandermy; Billy
Peace; B. Paine; D.S. Shoemaker; Paul Delaplane; Larry
Wright; Dan Mahoney; Charles Steuart; Steve Stedfeld;
Samuel Stratfield, Defendants-Appellees.

No. 96-35399.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1996.*
Decided Nov. 7, 1996.

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

MEMORANDUM**

Idaho state prisoner Samuel W. Miller appeals pro se the district court's summary judgment in favor of defendants in his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989). We vacate and remand.

Before entering summary judgment, "[d]istrict courts are obligated to advise prisoner pro per litigants of Rule 56 requirements." Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988); see also Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir.1995) (per curiam). Based on this record, it does not appear that Miller was ever warned of Rule 56's requirements. Accordingly, we vacate the district court's summary judgment and remand with instructions to advise Miller of the requirements of Fed.R.Civ.P. 56. See Klingele, 849 F.2d at 411-12; see also Arreola, 65 F.3d at 802. On remand, the district court should also address Miller's claim that defendants retaliated against him for exercising his First Amendment rights.

VACATED and REMANDED for further proceedings consistent with this disposition.

*

The panel unanimously finds this case suitable for decision without oral argument. 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

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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.
Samuel W. MILLER, Plaintiff-Appellant,
v.
Richard G. GARDNER; Larry Laird; Victor Vandermy; Billy
Peace; B. Paine; D.S. Shoemaker; Paul Delaplane; Larry
Wright; Dan Mahoney; Charles Steuart; Steve Stedfeld;
Samuel Stratfield, Defendants-Appellees.

No. 96-35399.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1996.*
Decided Nov. 7, 1996.

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

MEMORANDUM**

Idaho state prisoner Samuel W. Miller appeals pro se the district court's summary judgment in favor of defendants in his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989). We vacate and remand.

Before entering summary judgment, "[d]istrict courts are obligated to advise prisoner pro per litigants of Rule 56 requirements." Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988); see also Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir.1995) (per curiam). Based on this record, it does not appear that Miller was ever warned of Rule 56's requirements. Accordingly, we vacate the district court's summary judgment and remand with instructions to advise Miller of the requirements of Fed.R.Civ.P. 56. See Klingele, 849 F.2d at 411-12; see also Arreola, 65 F.3d at 802. On remand, the district court should also address Miller's claim that defendants retaliated against him for exercising his First Amendment rights.

VACATED and REMANDED for further proceedings consistent with this disposition.

*

The panel unanimously finds this case suitable for decision without oral argument. 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

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103 F.3d 139, 1996 U.S. App. LEXIS 36438, 1996 WL 671993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-gardner-ca9-1996.

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