Lee A. Rand v. James Rowland Nadim Khoury, M.D. William Bunnell Roy Lee Johnson Leo R. Estes

patiently waiting question, he period I petition. their approve visa INS to contend, believe, INS does not and the do not permanent forfeited his he could have a few simply virtue of status

resident To the or inaccurate statements. erroneous question whether contrary, dispositive is what Singh spending that status forfeited majority too time with to be much deems not. family. hold he did I would unwavering intent Singh’s demonstrated States, plus family bring his United lived and here the fact worked obtaining increasing periods time after status, preclude the BIA permanent resident clear, convincing, and determining from not intend unequivocal he did evidence home. Ac- make the United States his I cordingly, would reverse the grant habe- district court and the writ of corpus. as RAND, Plaintiff-Appellant, A.

Lee ROWLAND; Khoury, M.D.; Nadim James Bunnell; Roy Johnson; Leo Lee William Estes, Defendants-Appellees. R.

No. 95-15428. Appeals, United Court of States Ninth Circuit. Argued 1997. and Submitted Feb. Decided June permanent a residence in district court found "substantial evidence maintain permanent her United in order her visits would not have terminated until States to have Alvarez, passed away at 1224. It father or chose and could lawful- residence status." ly emigrate permanent "the the United States.” Instead of is resident status that confers pos- establishing permanent considering privilege there was a reasonable residence whether Bustos, sibility "aged ill” would soon in the United Saxbe v. 419 U.S. her father States.” 272, 278, away trip might pass 42 L.Ed.2d 231 and that her therefore S.Ct. (1974). simply Angeles temporary, with the law id. at is also inconsistent purport contingency as it does of her father's death of this circuit because not even cited trip trip temporary. apply “temporary is was not Id. at our rule that a visit evidence that her inconsistency the law upon if terminate the occur- 484. Given abroad" it "will both dissimilarity having possibility from of an of this circuit and its factual rence event reasonable hand, period Angeles occurring relatively does much within a short the case Chavez-Ramirez, support majority. time.” at 937. The comfort or

Amy Jackson, Tufts, Margolin, E. & Cole Black, Jose, CA, plaintiff-appellant. San Attorney D. Baumgarten, Deputy Kenneth General, CA, Sacramento, defendants-ap- pellees.

Before: SCHROEDER and O’SCANNLAIN, Judges, Circuit KELLEHER,* Judge. District Kelleher; Opinion Judge Concurrence by Judge O’Scannlain.

OPINION

KELLEHER, Judge. District April (“Appel- Lee A. Rand

lant”), inmate, prison filed a civil state pursuant § to 42 action U.S.C. * Kelleher, nia, sitting designation. The Honorable Robert J. United States Judge District for the Central District of Califor- in favor of grant of officials-most of them prison several against (the (the former Director of the “Appel- James Rowland “Defendants” officers

medical Corrections), Department of on lees”). complaint on his is based California Appellant’s sued grounds treatment in the that he had been temporary placement supervisorial capacity. At the heart of Insti- his infirmary California Correctional where, (“CCI”), finding that Defen- after the 1993 Order was Tehachapi at tution adequately had not briefed the issues human immunodefici- dants positive for the testing (the “HIV”), Rand’s concerning for the merits of five of he resided six ency virus Objections they to the claims until filed their transfer true medical pending months 30, 1993, Findings and Recommenda- Magistrate’s September and Janu- facility. On orders, reason, court 17, 1995, way separate For that the district of two tions. ary magistrate’s findings, adopt motion the granted Defendants’ declined and, effect, the matter back to referred summary judgment. Because findings and prison- magistrate court for further comply “pro with the the not court did remaining concerning the Federal Rule of Civil recommendations requirements of er” 56, granting orders Defen- claims. Procedure summary judgment are dants’ motion for 1994, magistrate On November remanded for further

vacated and the case Findings and Recom- court issued its second opin- this Court’s proceedings consistent with mendations, recommending that Defendants’ only insofar as ion. The orders are affirmed qualified issue of motion be denied on the dis- they represent the determination immunity, injunc- Appellant’s claims for appoint counsel. trict court not declaratory relief be dismissed as tive and moot, Appellant’s concerning and that claims

I. care, heating clothing, medical and out-of-cell 20, 1989, exercise, clergy, a civil and access to the April Appellant filed access On Appellant rights complaint library he stated that he law dismissed because which prison infirmary any deprivations. at was confined to the CCI did not suffer constitutional January months in 1988 and after he the district court en- for six (the Order”) Appellant adopting positive tested for the HIV. was tered an order “1995 placed infirmary pend- Findings “temporarily” these second and Recommendations ing dismissing entirety. his transfer to the California Medical and the action (“CMF”), Facility January which was bet- Judgment Vacaville was entered on carrying Appellant appealed ter able to care for inmates the The then from the deni- counsel, Order, Eighth HIV. claims his Amend- als of the 1993 and the 1995 ment constitutional were violated dur- Order. CCI,

ing period that six month when he exercise, allegedly prop- denied access to was II. care, clothing heating, er medical many challenges Appellant offers personal hygiene items. Further claims Be- district court’s 1993 and 1995 Orders. were asserted under the First Amendment cause we find that the Orders must be vacat- (right telephone, right to free exercise ed and the matter remanded based on the religion) Amendment and the Fourteenth provide proper failure of the district court to (due process, equal protection). filing After notice, challenges those will not be discussed. complaint, Appellant two filed motions do, however, court’s We examine the district counsel; were, appointment both appoint counsel and discuss decision effect, denied. this issue below. magistrate reviewing this matter Findings offered its first and Recommenda- Litigants A. Pro Se Prisoner and Sum- July September tions on 1993. On mary Judgment Notice (the 1993, the district court issued an order Order”) disputed It that the dis adopting “1993 certain recom- cannot be itself, moving party, must report, being mendations from this one trict court not the prisoner litigant summary judg- both their notice of motion for provide to a (1) a Rule 56 ment was explanation notice and as what sufficient because it substan- rule, (2) tively litigant’s responsibili Appellants’ discusses the motion is and what Mangaong, filings are thereunder. Arreola v. actions and evidence at least a ties moder- Cir.1995) curiam) (per understanding ate However, litigant process. (holding previously we have held knowledge sophist- entitled to notification of that actual level of court). rule trial In ication in matters does not obviate the Arreola, wrote, moving judicial “[ajlthough explanation. need for Klingele, [the adequate pro party] argues appellees’ notice was we “decline[d] invitation to erode litigant] by by allowing vided to the citation rule [the [notice] district courts to moving party]’s giving [the notice of motion Klin avoid advice based aon gele Klingele requires prisoner and that requi- Rule determination that a has the by matters,” provided sophistication notice be the district court.” Id. site and not- added) “[djistrict (citing Klingele (emphasis obligated v. Eiken ed that courts are to (9th Cir.1988)). berry, prisoner pro per litigants 849 F.2d 411-12 advise of Rule 56 us, however, requirements.” before On the facts the case 849 F.2d at 411-12. We by provided holding such notice was not the court affirm that and vacate the district’s and, instead, presented granting summary judgment.2 was to the order Defendants, by Defendants’ notice of note, finding, In so we as has the Seventh summary judgment.1 motion and motion for Circuit, naturally are “we reluctant This is insufficient. impose additional duties on our overbur Faulkner, addressing a While district court’s conver- dened district courts.” Lewis v. (7th Cir.1982). a motion dismiss into a 689 F.2d sion of Yet motion, burden, is, recently today, reality, upheld we have held that as carried eases, pro by prisoners notice as to defendants in civil extremely Angelone, resting judges’ are strict. Anderson v. rather than on district shoul (9th Cir.1996) (citing aptly 86 F.3d Klin- ders. See id. As the Seventh Circuit 411-12) similar, (noting discussing gele, though 849 F.2d at stated when “[t]he identical, rule, obligated prison- courts are to advise notice defendants in “[m]ost District pro per litigants require- prisoners’ rights rep er of Rule 56 cases this circuit are ments”). by attorneys gen the[ ] In Anderson we went on to state resented one of state circuit, gave that the “district court in this case no eral who we are sure will added). (emphasis cooperate implementing such advice.” Id. On the the new rule with hand, though Appellant arguably facts at re- minimum inconvenience to our harassed dis notice, provided judges.” ceived it was neither trict Id. at 103. the Ninth Circuit, expressly magistrate district court nor court. the notice rule is limited Filler, al., having provided by prisoners. et The notice not been Jacobsen (9th Cir.1985). 1362, 1364-67 Thus, entity, Appellees at- 790 F.2d correct nevertheless matter, practical duty tempt argue explanation provided that the as a it is the provided by Appellees append- by way the defendants' own notice of motion 1. The notice summary judgment summary judgement ed to their notice for and are without merit. present included reference to the need to coun- Though other circuits examine whether the fail ter-affidavits, depositions, and answers to inter- (or part moving party, on the of the court ure rogatories. Appellees’ Supplemental Answering require) provide as some circuit’s Brief, notice, however, at 13-14. The does not pris prejudice non-moving causes to the explicitly present state that the failure to such see, Henman, oner, e.g., Sellers v. 41 F.3d counter-evidence will result in the of sum- 1994), 1101-03 Cir. such is not the rule mary judgment. The notice also does not state Rather, guaran the Ninth Circuit. as a means to grant that a means the notice, proper scope require tee the over, explain case is nor does the notice notice, though possibly pro and that the drafted be as uncontroverted facts will taken true. defendant, provided by posed by the dis be trict court. arguments 2. We note that the defendants’ as to quality provided plaintiff of the notice Shinbaum, 707, 708 type litiga- Brown in this parties related state al., Cir.1987); Wainwright, et proposed the district tion Griffith Lewis, Cir.1985); convey succinctly properly notices F.2d at 102. below. mandated information circuits, defining of the further In other Notice B. Substance of The not uncommon. requisite notice is form appeal on is the issue A related court, on to example, went Shinbaum court-issued that such and substance “consequences of default” be require that the held, recently and there have must take. We judg final as “the fact that further defined court’s dispute, no can be trial, a full may without be entered ment prisoners en heightened duties evidence the defendants’ the fact that prisoner pro “to advise obligation compass an truth if not contradicted as the be taken requirements.” Rule 56 litigants of per 708. With 828 F.2d at affidavits.” [] Anderson, (citing Klingele, at 934 clarity, the Seventh Circuit goal of similar 411-12). Anderson court include “both the notice must has held that requires the “[t]his on to state went 56(e) plain and a short and of Rule the text prisoner about his tell the court to district ordinary English that factu statement other re ‘right file counter-affidavits affidavits will in the movant’s al assertion [to] alert[ ][him] and sponsive materials unless the by the district court taken as true might respond his failure so the fact that movant with contradicts the non-movant summary judgment entry in the of result documentary evi or other counter-affidavits Jacobsen, 790 (quoting against him.’” Id. Frank, 281, F.2d 285 Timms v. 953 dence.” 8, citing Klingele, 849 n. and F.2d at 1365 denied, 957, (7th Cir.), 112 cert. 504 U.S. 411). language, we are Beyond this F.2d at (1992). 2307, 119L.Ed.2d 228 S.Ct. more detailed instruction yet With requisite notice must contain. what the jurisdic holdings in other line with delineating general bound goal of the the precedent, tions, we as well as Ninth Circuit notice, acceptable aries of what constitutes pro pris clarify requirements for se now the employed in oth approaches examine we now First, summary judgment notice. the oner er circuits. be, measure, phrased in large in notice must apprising matter, language aimed are in understandable preliminary As obligations clear, rights and the of his jurisdictions that agreement with other legal is Though use of terms in the under Rule 56. language must be used understandable necessary in of a See, certainly discussion provided. e.g., Moore v. State of must, Cir.1983) (not motion, to the Fla., these terms Rule 56 521 703 F.2d by expla complemented sufficiently possible, be clear extent ing that the “notice must be of requirements and the effects litigant nations of the pro se to be understood lay in a manner that the a Rule 56 motion him apprise of what is calculated Second, 56”) comprehend. we reaffirm man can (quoting Davis v. Zahrad under Rule Anderson, Klingele, Cir.1979)); holdings in nick, our recent 460 see 600 F.2d Jacobsen, Smith, district requiring that the 630 and v. also Ham (D.C.Cir.1981). this, pro litigant as to his or though par court inform the se Beyond the or other right her to file counter-affidavits wording may vary, respective the cir ticular him or her to responsive materials and alert notice re recognize some form of cuits that might respond failure to so holding in the fact that the our quirement are concert with Anderson, entry result the generally to the effect Third, the effect right against him or her. because of his pro party “must be advised summary judgment must be responsive losing on countering or other file affidavits clear, must note that should fact to the material and that he be alerted prisoner fail to contradict might respond result that his failure so or other moving party counter-affidavits summary judgment against evidence, Davis, 460; moving parties’ evidence F.2d at see also him.” 600 truth, judgment positions. and final he was unable to articulate his be taken as the Appellant showing. full trial. has not may entered without a made

district court did not abuse its discretion denying requests appointment for the Appointment Counsel C. counsel. Appellant filed two motions for the counsel, appointment of both were denied. III. appeals these denials. The now appointment of counsel denial of a motion for notify Due to the district court’s failure to § is reviewed for abuse under 28 U.S.C. prisoner litigant of his Escalderon, of discretion. Wilborn responsibilities responding to a Rule 56 (9th Cir.1986). There is no motion, Orders, we vacate the 1993 and 1995 right appointed in a constitutional counsel below, subject immediately to the caveat Spellman, § 1983 action. Storseth proceedings remand the case for further con- (9th Cir.1981). However, opinion. According- sistent with this Court’s circumstances,” “exceptional district ly, Appellant’s challenges substantive may appoint indigent counsel for civil liti district court’s determinations on 1915(d). § gants pursuant to 28 Al U.S.C. yet ripe are not for review. As to Aldabe, dabe Appellant’s request appointment Cir.1980). excep To decide whether these counsel, the district court’s determination exist, tional circumstances a district court certainly Only within its discretion. in- must evaluate both “‘the likelihood of suc represent sofar as the 1993 and 1995 Orders ability of [and] cess on the merits part a determination on the of the district petitioner to articulate his claims counsel, appoint they court not to af- are light complexity issues firmed. ” Wilborn, (quot involved.’ 789 F.2d at 1331 part, VACATED and REMANDED Look, Weygandt ing part. AFFIRMED Cir.1983)). First, in appointment his motions for the of O’SCANNLAIN, specially Judge, Circuit counsel, Appellant argument offered no to concurring. any requisite the effect that he had likelihood Klingele I concur indeed dictates because portion of to of success. As the second the rein- that we vacate test, judge ap- is to have state Rand’s claims since the district court plied indigent’s ability the to articulate him failed to with the no- against complexity claims the relative of the separately point up I to how-after tice. write discovery Appellant’s pursuit matter. of nearly years application-the formal nine interrogatories requests with and document Klingele requirements of the rule continue comprehensive Appellant and focused. any purported justification subsume for throughout filed numerous motions this ac- creation. they quali- Though tion. did not achieve the Eikenberry, ty papers prepared Klingele In 849 F.2d 409 have been (9th Cir.1988), by lawyer, Appellant’s papers gener- “bright-line” we created a rule were ally organized. appeal, obligated courts to advise articulate and that district “are require prisoner pro per litigants had of Rule 56 notes that had he the assis- early stages entering summary judgment during tance of counsel the of ments” before obligation proceedings, may against fared them. Id. at 411-12. This well have better-particularly discovery text of Rule 56. in the realms of is found nowhere Rather, Klingele securing expert testimony-but and the rests on the rationale (D.C.Cir. Wilbom, Hardy, 412 F.2d 1091 implied is not the test. As was Hudson v. 1968), any certainly “fair case. Hud litigant se would be better the seminal notice” the rule that dis served with the assistance of counsel. Id. son devised from scratch this, however, Beyond provide pro prisoners Appellant must show trict courts should complexity requirements “fair of the that because of the of the claims with notice summary proper if it our summary rule” Even were us to accrete judgment before onto Rule 56 certain circum- can entered. Id. at 1094. Good desires judgment be stances, explains why “fair not, Jacobsen further any lacks foundation Hudson idea and, credit, may necessarily rules “desir- barely notice” not to its the text Rule simply proclaimed able”: Hudson pretends to. summary judg- “that Imposing obligation to give an notice fairly applied ‘with may not be

ment rule evidentiary 56’s would also Rule standards prisoner unrepresented to a strict literalness’ undesirable, open-ended partic- invite an subject ‘handicaps by counsel by summary judg- in the ipation the court necessarily imposes upon a liti- detention process. is not ment It sensible ” omitted). (citation gant.’ Id. laymen they must file an tell at the time ex- “affidavit” without same acknowledged in Jacob first Hudson We that, is; plaining affidavit in turn what an (9th Cir.1986), Filler, F.2d 1362 sen v. impels rudimentary the rules outline of in a that its acquiesced where we footnote of a of evidence. Unlike the conversion requirement applied imprisoned pro notice 12(b)(6) summary into a motion motion however, litigants. refusing, to extend only requires judgment, notice of which litigants, all requirement the notice is, propos- what motion now Jacobsen’s explained requires al the motion advice what requirement if a even substantive notice give must mean. To that advice would desirable, were it should be enacted becoming play- entail the district court’s through formal amendment rather than adversary process in the rather than er adjudication. piecemeal separate Rule 56’s remaining its referee. provision description notice of sum- omitted). (internal mary judgment Id. 1365-66 footnotes Supreme indicate that the Why, prisoners, Advisory respect with does and its have Court Committee obligation invite “unde problems the same special considered the raised sirable, and, open-ended participation by the court summary judgment procedure judgment summary process” in the as it does failing require specific notice of respect litigant? I summary judgment, other nature of have con- agree am inclined to with the Fifth Circuit present cluded that rules al- federal ready afforded Rules of apprise litigants “[t]he their ... and the local rules are obligations. Requiring addition- Civil Procedure adopt any litigants notice sufficient. To other rule would pro al to se would be an 56(c), impossible precisely make it to interpre- determine accretion onto Rule not an it; adequate given what notice was a case.” tation of and as an ad amendment hoc County Jail, standardized, codified, v. F.2d it would Martin Harrison 975 not be (5th Cir.1992). 192, 193 subject making. to decision collective (internal parentheticals Admittedly, at 1366 only Id. and cita- one other circuit has ex- omitted). I, one, why pressly tion for fail to see it is disavowed the Hudson rule.1 In six ours, improper circuits, including for us to amend Rule 56 with re- other form of some spect litigants perfectly entry to all pro precede se but Hudson notice must acceptable respect summary against it with to im- judgment imprisoned to amend an pro ours, prisoned litigants. pro litigant.2 se circuit howev- No but Browman, 901, Artuz, 483, (2d Champion 1. Williams 981 903 76 F.2d 2. See F.3d 486 Cir.1996) Cir.1992) (holding "summary judgment (noting authority that "[t]here that is no against should not be entered default a proposition Circuit that a district given plaintiff any who has not notice that been prisoner right court must advise a of his default”); response failure to will be deemed responsive file counter-affidavits or other materi- Frank, 281, (7th Cir.) Timms v. F.2d 953 283 or that al he must be alerted to the fact that his (holding prisoner that to re "is entitled respond failure so with such material consequences failing to ceive notice of the summary judgment against result respond summary with affidavits to motion for him”). denied, 957, judgment”), 504 112 S.Ct. cert. U.S.

1527 er, keep that, elevated form over substance We also apart has so should mind rule we from the absurd and wasteful the notice Rand from mandate received defendants, actually Rand today. responded to apply must Unsophisticated motion. place eight-year-old As we Rand’s case was, litigant that he Rand following filed the docket, we back on the district court’s should upon motion to extend the time respond first, mind, keep in Rand did have actual receipt of defendants’ motion: Defendants, requires. Rule 56 notice of what Plaintiff is a prisoner proceeding state motion, provided notice of Rand with their pro se 42 § with this civil U.S.C. 1983 two-page explanation and its Rule 56 rights action. Defendants caused requires requirements. Klingele Of course upon served the Plaintiff their MOTION plain district court itself advise the FOR SUMMARY JUDGMENT on Febru- requires.3 tiff of Rule 56 Notice what 26, ary 1993. Pursuant to Local Rule Nothing in moving party is insufficient. 230(m) respond pre- Plaintiff must to this however, explains why Klingele, this should (21) Twenty-one days trial motion within only “an requires be so. The Second Circuit service. easily comprehensible party notice from the requests Plaintiff granted he be ex- an moving summary judgment.” Champion for 26, tension including of time to and March Cir.1996). (2d Artuz, 486 1993. applies in same the Seventh and District timely March Rand filed his Circuits, where Columbia opposition summary motion provide must if the defendants declarations, responses discovery re- Vail, so. See fail to do Kincaid v. quests, and other exhibits. Cir.1992), denied, cert. 506 U.S. Neither Rand’s demonstrated awareness (1993); 113 S.Ct. L.Ed.2d 152 respond he had nor re- his actual (D.C.Cir. Kelly, Neal v. however, sponse Klingele, matters under for 1992). we have refused “to erode the rule Hudson that, allowing professes giving district courts avoid opinion Our the Sev- like Circuit, requisite advice based on a determination naturally “[w]e enth are reluctant to prisoner requisite that a has the sophistica- impose additional duties on our overbur- tion in Klingele, matters.” F.2d at Faulkner, dened district courts.” Lewis v. Thus, judg- must vacate Cir.1982). The least ment, opposed Rand which with affidavits do, then, very adopt we could is to next responsive material, and other because sentence Seventh Circuit uttered: notify district court did not Rand “But we trust that counsel for defendants responsive could submit affidavits and other civil eases this circuit will Maybe materials. we should this. rethink judges’ lift this new burden from the shoul- ders, by including henceforth motion Circuit, instance, The Seventh does summary judgment” requisite notice. reverse for failure to “unless encourage circuit Id. Our fails to plaintiff there is reason to believe that the burden, carry failure, is, defendants forbid prejudiced was that he that them genu- to. could that have established there was a (1992); provided L.Ed.2d 119 228 v. Wain should have trict Court ... him with Griffith (11th Cir.1985) (hold wright, 825 summaiy fair notice of ing party express, given “adverse must be rule”). rules”); ten-day Garrison,

Roseboro 528 F.2d Mangaong, 3. See Arreola v. 1975) (requiring plaintiff be Cir. "that the advised Cir.1995) (explaining “[ajlthough ade- ... right to file counter-affidavits other quate provided to Arreola responsive material and fact alerted to the Mangaong’s citation in Dr. notice of motion respond might his failure to so result in 56, Klingele Klingele requires Rule Hudson, him”); summary judgment against court”). provided notice be (D.C.Cir. 1968) (holding entering summaiy judgment "before the Dis- ... fact, precluding the material

ine issue if had had a summary judgment, grant of to submit affidavits.” opportunity reasonable Henman, Sellers omitted). Cir.1994) expect I (citation would here, actually plaintiff sub- where, as exhibits, prejudice no affidavits mits entirely lie, reasonable result a most would purpose Hudson. consistent with reasons, hardly I would be For all these Klingele revisiting rule of en opposed to however, Klingele now, mandates banc. For case, perforce I concur. result in this America, UNITED STATES Appellee, Plaintiff - MITCHELL, Defendant- Thomas W.

Appellant. No. 96-3260. Appeals, States United Court Tenth Circuit.

May 29, 1997. Rehearing Denied June

Case Details

Case Name: Lee A. Rand v. James Rowland Nadim Khoury, M.D. William Bunnell Roy Lee Johnson Leo R. Estes

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 3, 1997

Citation: 113 F.3d 1520

Docket Number: 95-15428

Court Abbreviation: 9th Cir.