NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DENNIS LAMAR JAMES, Jr., No. 12-16371
Plaintiff - Appellant, D.C. No. 3:10-cv-04009-SI
v.
MEMORANDUM*
J. PUGA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted October 6, 2014
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Dennis Lamar James, Jr. appeals the district court’s order granting summary
judgment to all defendants on James’s excessive force claims and his Fourth
Amendment claims brought under 42 U.S.C. § 1983. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
James argues that the district court did not comply with the requirements of
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). Under Rand, the district
court bears an “obligat[ion] to advise prisoner pro per litigants of Rule 56
requirements.” Rand, 154 F.3d at 956 (quoting Klingele v. Eikenberry, 849 F.2d
409, 411-412 (9th Cir. 1988)). Here, the district court mailed a Rand notice, but it
was returned from the prison as undeliverable. No new notice was sent even
though James had promptly provided notice of change of address.
However, Rand does not apply to this case because the record indicates that
by the time the defendants filed their summary judgment motions, James was no
longer incarcerated. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986)
(holding that notice of Rule 56 requirement is not required for non-incarcerated pro
se litigants). Therefore, there was no Rand error.
II
The decision to appoint counsel for pro se litigants under 28 U.S.C. §
1915(e)(1) “is within the sound discretion of the trial court and is granted only in
exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004) (citation and internal quotation marks omitted). When determining
whether exceptional circumstances are present, a court must consider “the
2
likelihood of success on the merits as well as the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted).
The district court did not abuse its discretion in concluding that James had
not shown he was faced with exceptional circumstances. James did not allege any
facts in his requests for counsel supporting his likelihood to succeed on the merits,
and the case did not present complex factual or legal theories.
III
We decline to reach the remainder of the arguments made by James because
they were raised for the first time on appeal. Cold Mountain v. Garber, 375 F.3d
884, 891 (9th Cir. 2004). Accordingly, we affirm the grant of summary judgment.1
AFFIRMED.
1
Plaintiff-Appellant’s Motion to Take Judicial Notice is granted.
3