Nelson v. California Department of Corrections, 670 F. App'x 968

Plaintiff Patrick Otis Nelson, a pro se incarcerated inmate, sued Captain Stephen Peck under the Eighth Amendment for ordering inmates to report to work during a 2008 strike amid threats of violence.
The district court granted summary judgment for Peck. Nelson appealed, arguing procedural and discovery errors prevented him from opposing summary judgment.
The district court provided Rand v. Rowland notice about summary judgment nearly two years before Peck actually moved for summary judgment, rather than concurrently with the motion.
Nelson repeatedly requested counsel, said he did not understand how to respond to summary judgment, and lacked access to materials to contest the defendant’s facts.
Nelson filed a motion to compel discovery the day before discovery closed, attaching interrogatories seeking relevant records and witnesses; the district court did not grant additional discovery before ruling.
The Ninth Circuit reversed and remanded, directing appointment of counsel on remand and permitting further discovery before deciding dispositive motions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rand notice was timely given	Rand notice was not provided concurrently; Nelson lacked understanding and missed opportunity to respond	Notice given earlier was sufficient	Reversed: Rand notice must be served concurrently with summary judgment motions; failure was reversible error
Whether lack of Rand notice was harmless error	Error was not harmless because Nelson did not understand Rule 56 and lacked materials to oppose	Any error was harmless because plaintiff understood summary judgment requirements	Not harmless: plaintiff lacked understanding and missed chance to seek more time for discovery
Whether the district court abused discretion by denying additional discovery	Nelson’s motion to compel and interrogatories showed discovery would yield relevant evidence; discovery was not fruitless	Denial was appropriate; discovery requests were untimely or unnecessary	Abused discretion: court should have allowed additional discovery because requests were not fruitless
Whether appointment of counsel and further process on remand is required	Given complexity and pro se status, counsel and discovery should be provided to proceed fairly	Appointment and further process unnecessary	Court directed appointment of counsel and ordered discovery allowed before ruling on dispositive motions on remand

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (requiring notice to pro se prisoners about summary judgment procedures)
Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) (Rand notice must be served concurrently with summary judgment motions)
Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012) (applying Rand notice requirement retroactively)
Labatad v. Corrections Corp. of America, 714 F.3d 1155 (9th Cir. 2013) (harmless-error standard when Rand notice omitted in an "unusual" case)
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) (considering pro se plaintiff's requests for counsel and understanding of procedures)
Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) (motion to compel may be construed as request for additional discovery)
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) (summary judgment only appropriate when additional discovery would be fruitless)