FILED
NOT FOR PUBLICATION JUL 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW RICK LOPEZ, No. 11-16929
Plaintiff - Appellant, D.C. No. 2:03-cv-01605-KJM-
DAD
v.
S. COOK, Captain; M. GARATE, MEMORANDUM*
Sergeant; R. MCKEAN, C/O; C. ADAMS,
Lieutenant; R. JOHNSON; J. HARRISON;
P. STATTI; D. SHAVER; A.
NERGENAH; N. MCCLURE;
VANDERVILLE; J. GILLAM; S.
BABBICH; T. BARTOS; JACKSON; D.
MORTON,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted April 18, 2013
San Francisco, California
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff Andrew Lopez alleges that prison officials, in validating him as a
gang member and placing him in the Security Housing Unit, violated his due
process rights and unconstitutionally retaliated against him for his prison litigation
activities. The district court dismissed or granted summary judgment in favor of
several defendants, and the remaining causes resulted in a jury verdict in favor of
the defendants. We affirm in part, reverse in part, and remand.
The district court did not give timely notice to Lopez as required by Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), after the defendants filed their
motion for summary judgment. See Woods v. Carey, 684 F.3d 934, 940–41 (9th
Cir. 2012). It is clear from the record, however, that there are no facts that would
have permitted Lopez to prevail against additional parties on the motion for
summary judgment, because he submitted several declarations on his motion for
summary judgment, and the district court considered this material in ruling on the
defendants’ summary judgment motion. There was therefore no reversible error in
granting summary judgment in favor of those defendants. See id. at 941.
At trial, the district court allowed a witness called by Lopez to refuse to
testify upon invoking Fifth Amendment privilege that was not grounded upon any
possible criminal prosecution, but on a fear of possible prison administrative
consequences. This was error because the Fifth Amendment confers a privilege
2
against self-incrimination only when there is a reasonable basis to believe the
“information sought, or discoverable as a result of his testimony, could be used in a
subsequent state or federal criminal proceeding.” U.S. v. Balsys, 524 U.S. 666, 672
(1998). Based on Lopez’s proffered questions for the witness, that assertion was
untenable here. This error was prejudicial since it deprived Lopez of evidence
bearing on the critical issue of the intent of a prison official, defendant Bartos. See
Obrey v. Johnson, 400 F.3d 691, 701–02 (9th Cir. 2005).
Lopez’s motion for judgment as a matter of law was properly denied since
the identity of the critical decision-maker was a disputed question of fact. The
district court correctly instructed the jury that determining the identity of the
critical decision-maker is a question of fact, but erred in rejecting Lopez’s
proffered instruction that notice and an opportunity to be heard must be provided
before prison officials complete the validation process given the non-emergency
circumstances of this case. See Zinermon v. Burch, 494 U.S. 113, 127 (1990);
Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982).
The district court erred in its pretrial dismissal of Lopez’s due process claim
against Special Services Unit Officer Harrison, thereby effectively dismissing him
from the case and allowing the defendants to argue to the jury that Harrison, rather
3
than any of the defendants who remained in the case, was the critical decision-
maker.
The judgment in favor of defendants Babich, Cook, Garate, Gilliam,
Holmes, James, Martinez, McClure, Shaver, and Vanderville entered on the basis
of the jury verdict on plaintiff’s due process claim is reversed and the claims are
remanded. The judgment entered before trial in favor of defendant Harrison on
plaintiff’s due process claim is reversed and the claim against him remanded. The
judgment in favor of defendant Bartos on plaintiff’s retaliation claim is also
reversed and remanded. The judgment of the district court is otherwise affirmed.
Defendants’ motion for judicial notice on appeal is GRANTED.
Each party shall bear its own costs.
AFFIRMED in part; REVERSED and REMANDED in part.
4
FILED
Lopez v. Cook, No. 11-16929 (SF 4/18/13) JUL 17 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THOMAS, Circuit Judge, concurring in part and dissenting in part:
I concur entirely in the majority disposition, with one exception: the
harmlessness of the Rand error. As I have previously stated, I am not particularly
enthused about the Rand/Klingele rule. Rand v. Rowland, 154 F.3d 952, 964 (9th
Cir. 1998) (en banc) (Thomas, J., concurring); see also Klingele v. Eikenberry, 849
F.2d 409, 411 (9th Cir. 1988). Although I believe providing a Rand-type notice is
laudable as a best practice, I believe that, in practice, application of the Rand rule
has become overly technical and overly rigid. Nonetheless, it is a rule that binds
us, and it is quite restrictive as to the use of harmless error.
The harmless error rule articulated in Rand was confined to “exceptional”
cases, id. at 962, and not “where the harmfulness could not be fully assessed on
the record,” id. at 961. The Rand harmless error inquiry is focused not on the
merits of the motion, but on whether “[t]he record, objectively viewed, shows that
[the plaintiff] knew and understood the information in the Rand notice before he
received it.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013).
Placing the burden on the plaintiff to show what he would have placed in the
record had he been given proper notice, and then assessing that material on the
merits, is at odds with the type of harmless error analysis required by Rand.
Prior to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), I might have held the
Rand error in this case harmless based on the prior Rand notifications to the
plaintiff in other cases. However, Woods holds that Rand notices must be given
concurrently with motions for summary judgment, and that notices provided more
than a year prior do not provide fair notice. Id. at 935-36.
Thus, although I am sympathetic with a relaxation of the Rand harmless
error restrictions, I do not believe that the majority’s analysis can be reconciled
with Rand. Therefore, I must respectfully dissent in part.
2