Solis v. Beltran

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SALVADOR SOLIS, 
Plaintiff-Appellant,
v.
COUNTY OF LOS ANGELES; LOS
ANGELES SHERIFF’S DEPARTMENT; No. 05-56637
VARGAS, Los Angeles County
Sheriff,  D.C. No.
CV-01-06425-RGK
Defendants, OPINION
and
MIGUEL BELTRAN, Los Angeles
County Sheriff,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Argued and Submitted
June 13, 2007—Pasadena, California

Filed January 29, 2008

Before: Dorothy W. Nelson, Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Reinhardt

1433
 COUNTY OF LOS ANGELES v. BELTRAN 1437

COUNSEL

Michael H. Dore, Leila C. Orr, and Mark E. Weber, Gibson,
Dunn & Crutcher LLP, Los Angeles, California, for the
plaintiff-appellant.

Ali Reza Sabouri, Office of the County Counsel, Los Angeles,
California, for defendant-appellee Miguel Beltran.

OPINION

REINHARDT, Circuit Judge:

Plaintiff Salvador Solis (“Solis”), a former inmate at the
Los Angeles County jail, brought this pro se1 civil action
alleging constitutional violations stemming from Solis’s

1
Pro bono counsel was appointed to represent Solis on appeal.
1438 COUNTY OF LOS ANGELES v. BELTRAN
transfer into the jail’s “gang module,” where he was attacked
and injured by three other inmates. Solis appeals the district
court’s verdict, following a bench trial, in favor of defendant
Miguel Beltran, as well as the district court’s grant of sum-
mary judgment in favor of the remaining defendants. We
reverse the district court’s grant of summary judgment on the
ground that Solis was not given fair notice of the requirements
and consequences of a summary judgment motion, as required
by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).
We also reverse the verdict in favor of Beltran because the
district court erred in denying Solis a jury trial, and the error
was not harmless.

I. Background

Solis is an ex-member of a gang known as the Mexican
Mafia, or “La Eme.” He is currently serving a sentence of life
without parole as a result of his conviction of first-degree
murder. Following his arrest on that charge, Solis was placed
in the Los Angeles County jail.

According to Solis, he informed a female intake official
during his processing at the jail that he was an ex-member of
the Mexican Mafia and was therefore a “high control risk” in
need of special protection. The official told him to notify the
deputies at his cell block once he arrived. At that time, Solis
was required to fill out a “Segregation Assessment” form so
that his housing classification could be determined. He stated
on the form that he had been affiliated with gangs and that he
had never served as a police informant or witness for the state.
In response to the question, “Do you fear for your safety
while in this facility?” Solis answered “No.” According to
Solis, he did fear for his safety but answered “No” because
active gang members were present when he was filling out the
form, and answering “Yes” would have drawn their attention
to him. Solis was placed in Module 4700, which houses “gen-
eral population” inmates who are not under protective custody
and are not segregated from other inmates.
 COUNTY OF LOS ANGELES v. BELTRAN 1439
Solis asserts that, shortly after arriving in Module 4700, he
spoke informally with Deputy Miguel Beltran (“Beltran”), an
officer in the “Operation Safe Jail” (“OSJ”) unit, which was
responsible for gathering intelligence on gang activity in the
jail. Solis claims that he told Beltran he was “in trouble”
because he was an ex-gang member who should have been in
protective custody, and that he showed Beltran several docu-
ments proving that he was a gang dropout. According to Solis,
Beltran responded, “We’ll interview you.” Beltran denies ever
having had such a conversation with Solis.

Solis asserts that on July 14, 1999, members of the OSJ
unit interviewed him along with several other prisoners from
Module 4700. He states that he believes that the primary
interviewer was named “Vargas” but that Beltran was present
as well. According to Solis, he told his interviewers that he
was an ex-member of the Mexican Mafia and showed them
the documents confirming his status. He claims that “Vargas”
then asked him to be an informant for OSJ. Solis asserts that
when he refused and requested placement in protective cus-
tody, “Vargas” threatened to put him in the “gang module,”
a unit that houses active gang members. Solis objected, but
was nevertheless transferred to the “gang module” that same
day.2

Two weeks later, around July 28, 1999, Solis was assaulted
by three inmates in the gang module. He asserts that during
the beating, one of the assailants mentioned Beltran by name,
stating, “Beltran was the one that gave you up, punk.” On
August 2, as Solis was walking to the shower area, he
reported the assault to Deputy John Gutierrez. He explained
that this was his first chance to report the beating because it
was the first time he had not been in the presence of his
assailants since the attack. Gutierrez observed that Solis had
2
That Solis was transferred to the gang module is undisputed. As the
district court found, “There is no question that an event occurred, which
changed Plaintiff’s cell assignment . . . .”
1440 COUNTY OF LOS ANGELES v. BELTRAN
bruises on his torso, forearms, neck, and eye, and escorted
him to the clinic for medical attention. That day, Solis was
transferred out of the gang module to Module 3700.

On February 11, 2002, Solis filed a pro se complaint in fed-
eral court against Beltran, “Vargas,” Sheriff Lee Baca, the
County of Los Angeles, and the Los Angeles County Sheriff’s
Department (“Defendants”),3 alleging violations of his civil
rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988.
He argued, inter alia, that the Defendants retaliated against
him for refusing to “snitch” by placing him in the gang mod-
ule with knowledge of the attendant dangers, and that such
retaliation was a custom or practice of the County.4 In his
complaint he demanded a jury trial, both in the caption and at
the end of the pleading.

On September 20, 2004, the district court received the first
of Solis’s two requests for appointment of counsel. The court
rejected the request on the ground that no proof of service was
attached to the motion. On November 3, 2004, the court filed
an Order for Jury Trial, which set a trial date of April 5, 2005,
and contained instructions regarding discovery, pretrial settle-
ment, and the submission of motions, instructions, and exhib-
its in preparation for trial. At the bottom of the section
requiring the submission of jury instructions and special ver-
dict forms, the order stated, “Failure of counsel to strictly fol-
low the provisions of this section . . . SHALL CONSTITUTE
A WAIVER OF JURY TRIAL in all civil cases.”
3
The complaint also included various John and Jane Does, representing
custodial and medical personnel of the Los Angeles County Sheriff’s
Department. The district court did not mention these parties in any of its
rulings.
4
A municipality may be held liable for the unconstitutional acts of its
officials if those acts were done pursuant to a “policy or custom” of the
municipality. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978).
 COUNTY OF LOS ANGELES v. BELTRAN 1441
On January 19, 2005, the Defendants filed a motion for
summary judgment, to which Solis filed an opposition on
February 22. The Defendants then filed objections to Solis’s
summary judgment opposition, complaining that the opposi-
tion was filed nine days late, did not contain a separate state-
ment of undisputed facts, and was supported only by hearsay
or documents that had not been properly disclosed. The dis-
trict court accepted Solis’s untimely opposition and granted
the Defendants summary judgment as to Solis’s Monell claim
and his § 1986 claim. It also dismissed Solis’s claims against
Sheriff Baca, noting that Solis had “not shown any evidence
that Sheriff Baca should be held individually liable.” The
court did find, however, that Solis had presented enough evi-
dence to create a genuine issue of material fact with respect
to Beltran, and thus denied summary judgment on Solis’s
§§ 1981, 1983, and 1985 claims against him.

Two weeks later, during a March 21, 2005, pretrial confer-
ence at which Solis appeared telephonically, the district court
stated that Solis “did not file a jury demand” and had waived
jury trial “due to the non-submission of required pretrial doc-
uments.” Noting that Solis’s confinement was a “substantial
barrier to his attendance at trial,” the district court announced
that it would conduct the trial as a “Court Trial by videotape
depositions.” Solis subsequently filed a second request for
appointment of counsel, explaining that his education was
limited to an eighth-grade level, that he had no legal educa-
tion and limited access to legal materials, and that the case
involved complex legal issues that required discovery of doc-
uments and depositions of a number of witnesses. He also
reiterated his demand for a jury trial. The district court denied
the request for counsel without explanation.

Having reviewed the videotaped depositions and corre-
sponding transcripts of Solis, Beltran, and Gutierrez, the dis-
trict court issued its “Statement of Decision” on July 14,
2005. Finding that there was “no question that an event
occurred which changed [Solis’s] cell assignment and directly
1442 COUNTY OF LOS ANGELES v. BELTRAN
led to [Solis’s] injuries,” the district court criticized Beltran
for being “less than forthcoming with regard to the presenta-
tion of evidence” that should have been in his immediate con-
trol. The district court also concluded that Solis’s “version as
to many of the events seems more credible than that of Defen-
dant’s witnesses.” Nevertheless, the district court ruled in Bel-
tran’s favor on the ground that Solis was “unable to provide
sufficient evidence to sustain a finding of liability.” There was
no separate order setting forth the judgment apart from the
Statement of Decision. The district court ordered Solis to pay
a bill of costs in the amount of $1,115 for trial and deposition
fees.

Solis filed a Notice of Appeal on October 18, 2005. He
argues that (1) summary judgment was improper; (2) the dis-
trict court deprived him of his right to a jury by adjudicating
his claim against Beltran via a bench trial “by videotape depo-
sitions,” and that, in any event, the district court’s verdict in
favor of Beltran was wrong on the merits; and (3) the district
court abused its discretion in refusing to appoint Solis coun-
sel. We address each issue in turn.

II. Discussion

A. Jurisdiction

[1] As a preliminary matter, we reject the Defendants’ con-
tention that this Court lacks jurisdiction because Solis’s notice
of appeal was untimely. Notice of appeal must be filed within
30 days “after the judgment . . . is entered,” subject to certain
exceptions. Fed. R. App. P. 4(a)(1)(A). A judgment is not
“entered” for the purposes of Rule 4(a) unless it complies
with Rules 58(a) and 79(a) of the Federal Rules of Civil Pro-
cedure. Fed. R. App. P. 4(a)(7); Beaudry Motor Co. v. Abko
Props., Inc., 780 F.2d 751, 754 (9th Cir. 1986). Rule 58(a)(1)
requires that every judgment be set forth on a separate docu-
ment, with certain exceptions not applicable here. Fed. R. Civ.
P. 58(a)(1). Rule 79(a) details the civil docketing procedure
 COUNTY OF LOS ANGELES v. BELTRAN 1443
to be followed by the district court clerk when entering the
judgment. Fed. R. Civ. P. 79(a). When judgment is not set
forth on a separate document as required by Rule 58(a)(1), it
is considered “entered” when 150 days have run from nota-
tion in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii).

[2] The district court’s “Statement of Decision” was issued
on July 14, 2005, and entered on the docket, in accordance
with Rule 79(a), on July 15, 2005. The district court did not,
however, set forth the judgment on a separate document as
required by Rule 58(a)(1).5 Therefore, judgment was not “en-
tered” until December 12, 2005, 150 days after the Statement
of Decision was noted in the civil docket. As a result, Solis’s
October 18, 2005, Notice of Appeal was timely, see Fed. R.
App. P. 4(a)(2) (“A notice of appeal filed after the court
announces a decision or order—but before the entry of the
judgment or order—is treated as filed on the date of and after
the entry.”), and we accordingly have jurisdiction to consider
Solis’s claims on appeal.

B. Summary Judgment

Solis argues that the district court’s grant of summary judg-
ment in favor of the Defendants (excluding Beltran) was inap-
propriate because he was not given fair notice of the
requirements and consequences of a summary judgment
motion, as required by Rand v. Rowland, 154 F.3d 952 (9th
Cir. 1998) (en banc). We review a district court’s grant of
5
Central District of California Local Rule 58-6 states that “[n]otation in
the civil docket of entry of a memorandum of decision, an opinion of the
Court, or a minute order of the Clerk shall not constitute entry of judgment
pursuant to F.R. Civ. P. 58 and 79(a) unless specifically ordered by the
judge.” The district judge in this case did not include any language in the
Statement of Decision indicating that he was ordering the notation of the
Statement in the civil docket to constitute entry of judgment. See Radio
Television Espanola S.A. v. New World Entm’t, Ltd., 183 F.3d 922, 931-
32 (9th Cir. 1999).
1444 COUNTY OF LOS ANGELES v. BELTRAN
summary judgment de novo. Lynn v. Sheet Metal Workers’
Int’l Ass’n, 804 F.2d 1472, 1477 (9th Cir. 1986).

[3] In Rand, we reaffirmed the longstanding principle that
a pro se prisoner is entitled to fair notice of the requirements
and consequences of the summary judgment rule. Rand, 154
F.3d at 959. We further held that either the district court or the
summary judgment movant may provide the prisoner with
notice,6 and that “[i]f the movant provides the notice, it must
be in a separate form that the plaintiff will recognize as given
pursuant to the court’s requirement. It may not be provided
within the summary judgment motion or in the papers ordi-
narily filed in support of the motion.” Id. at 960. Finally, we
outlined the contents required for sufficient notice, holding
that the notice “must be phrased in ordinary, understandable
language” and that it must inform the prisoner both of his
“right to file counter-affidavits or other responsive evidentiary
materials” and, “most importantly, . . . of the effect of losing
on summary judgment.” Id.

[4] Here, neither the district court nor the Defendants pro-
vided the notice Rand requires. The district court issued
instructions regarding preparation for trial in its “Order for
Jury Trial.” Under the heading “Motions for Summary Judg-
ment or Partial Summary Judgment,” the district court stated
only that “[m]otions for summary judgment or partial sum-
mary judgment shall be filed as soon as practical, however, in
no event later than the motion cut-off date.” Its order con-
tained no instructions regarding either the requirements of
responding to or the consequences of losing on summary
judgment. Specifically, the district court’s order did not alert
Solis “to the fact that the failure to [file responsive evidentiary
materials] might result in the entry of summary judgment
against” him, Rand, 154 F.3d at 960, and it certainly did not
6
In doing so, we explicitly overruled Arreola v. Mangaong, 65 F.3d
801, 802 (9th Cir. 1995) (per curiam), which held that the notice must be
given by the district court itself.
 COUNTY OF LOS ANGELES v. BELTRAN 1445
“inform [Solis] that if the motion for summary judgment is
granted, [his] case will be over,” id.

[5] Nor did the Defendants provide, “in a separate form” as
required by Rand, any notice describing the procedural
requirements Solis must meet in countering the summary
judgment motion or the consequences of failing to meet those
requirements, including the fact that losing on summary judg-
ment would mean the effective termination of his case.7 See
id. at 960-61; see also id. at 962 (holding that the defendants’
two-page notice of rules relating to summary judgment,
although it alerted the pro se prisoner of his right to file
responsive materials and the consequences of failing to do so,
was nevertheless insufficient because it was not phrased in
ordinary language and did not inform the plaintiff of the effect
of losing on summary judgment).

[6] Thus, because Solis was not given fair notice,
demanded by Rand, of the requirements and consequences of
a summary judgment motion, we reverse the district court’s
grant of summary judgment in favor of all defendants other
than Beltran and remand all claims that were dismissed at that
stage, with one exception: we agree with the district court that
Solis’s § 1986 claim was untimely,8 and therefore we affirm
7
Not only did the Defendants fail to inform Solis of the proper proce-
dures for responding to a summary judgment motion, they sought to take
advantage of Solis’s lack of understanding regarding those procedural
requirements. Defendants’ “Objections to Plaintiff’s Opposition to Sum-
mary Judgment” focused almost exclusively on Solis’s failure to meet the
procedural and evidentiary requirements of countering a summary judg-
ment motion—it complained that Solis’s opposition was filed nine days
late, did not contain a separate statement of undisputed facts, and was sup-
ported only by hearsay or documents that had not been properly disclosed.
8
Section 1986 provides that “no action under the provisions of this sec-
tion shall be sustained which is not commenced within one year after the
cause of action has accrued.” 42 U.S.C. § 1986. Solis filed his federal
complaint in February 2002, nearly three years after his alleged injuries
took place.
1446 COUNTY OF LOS ANGELES v. BELTRAN
the grant of summary judgment as to that claim. Otherwise,
we decline to conduct harmless error analysis, as “harmless
error review is inappropriate in most cases” of Rand violation,
id. at 961, and this is not the “unusual case where the harm-
lessness of the failure to give the required notice may be
established on the record or by judicial notice,” id. See also
id. at 960-61 (holding that harmlessness analysis may be
appropriate where the record clearly shows that the plaintiff
had received Rand notice in prior litigation or that he “has a
complete understanding of Rule 56’s requirements gained
from some other source”).9

C. Jury Trial

Solis also argues that the district court erred in holding a
bench trial “by videotape depositions” instead of a jury trial
to adjudicate his claims against Beltran, and that such error
warrants reversal of its verdict in favor of that defendant.
Whether a party is entitled to a jury trial is a question of law
we review de novo. Frost v. Agnos, 152 F.3d 1124, 1128 (9th
Cir. 1998). “The unconstitutional denial of a jury trial must be
reversed unless the error is harmless.” United States v. Cal.
Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1377 (9th Cir.
1997).

The Seventh Amendment guarantees the right to a trial by
jury “[i]n Suits at common law, where the value in contro-
versy shall exceed twenty dollars.” U.S. Const. Am. VII. Like
other constitutional rights, the right to a jury trial in civil suits
can be waived. United States v. Moore, 340 U.S. 616, 621
(1951); Kulas v. Flores, 255 F.3d 780, 784 (9th Cir. 2001);
see also 8 Moore’s Federal Practice § 38.52[1][b] (3d ed.
2006). “Because the right to a jury trial is a fundamental right
9
That Solis met the requirements for countering summary judgment as
to one defendant does not mean that he necessarily understood all that was
required or what the consequences would be if he did not meet those
requirements as to the others.
 COUNTY OF LOS ANGELES v. BELTRAN 1447
guaranteed to our citizenry by the Constitution,” however,
“courts should indulge every reasonable presumption against
waiver.” Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.
1981); see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393
(1937).

[7] Federal Rule of Civil Procedure 38(b) requires a party
wishing to assert the right of trial by jury to “demand a trial
by jury . . . by (1) serving upon the other parties a demand
therefor in writing at any time after the commencement of the
action and not later than 10 days after the service of the last
pleading directed to such issue, and (2) filing the demand as
required by Rule 5(d).” The rule also specifies that “[s]uch
demand may be indorsed upon a pleading of the party.” Fed.
R. Civ. P. 38(b).10 A party’s failure to serve and file the
demand in the manner specified in Rule 38(b) constitutes a
waiver of the right to a trial by jury. Fed. R. Civ. P. 38(d).
Once a demand for jury trial has been properly made, how-
ever, it “may not be withdrawn without the consent of the par-
ties.” Id. “Rule 39(a) . . . sets forth the manner in which this
consent may be granted.” Reid Bros. Logging Co. v. Ketchi-
kan Pulp Co., 699 F.2d 1292, 1304 n.20 (9th Cir. 1983). It
requires consent to be made “by written stipulation filed with
the court or by an oral stipulation made in open court and
entered in the record.” Fed. R. Civ. P. 39(a)(1).11
10
In the Central District of California, Local Rule 38-1 further provides
that “[i]f the demand for jury trial is included in a pleading, it shall be set
forth at the end thereof and be signed by the attorney for the party making
the demand. The caption of such a pleading shall also contain the follow-
ing: ‘DEMAND FOR JURY TRIAL.’ ”
11
Effective December 1, 2007, the language of Rules 38 and 39 were
“amended as part of the general restyling of the Civil Rules to make them
more easily understood and to make style and terminology consistent
throughout the rules.” Fed. R. Civ. P. 38 & 39 advisory committee notes.
Rule 38(b) now states that a party “may demand a jury trial by: (1) serving
the other parties with a written demand—which may be included in a
pleading—no later than 10 days after the last pleading directed to the issue
is served; and (2) filing the demand in accordance with Rule 5(d)”; Rule
1448 COUNTY OF LOS ANGELES v. BELTRAN
The district court stated two reasons for its decision to con-
duct a bench trial rather than a jury trial with respect to Solis’s
claim against Beltran. First, the district court found that Solis
“did not file a jury demand.” Second, the district court stated
that Solis had waived his right to a trial by jury “due to the
non-submission of required pretrial documents.” We hold that
both of the district court’s reasons for denying Solis a jury
trial were faulty: Solis clearly demanded a jury trial and never
withdrew that demand, and the district court’s imposition of
a penalty of forfeiture of that right for failing to comply with
a procedural pre-trial requirement was invalid. Because the
district court’s denial of a jury trial was not harmless error, we
reverse the district court’s verdict against Solis and remand
for a new trial, this time by jury.

1. Solis demanded a trial by jury.

[8] The district court’s finding that Solis “did not file a jury
demand” was plainly in error. Solis included the words “DE-
MAND FOR JURY TRIAL” in the caption of his complaint
as well as on the last page, which also contained the unambig-
uous statement, “Plaintiff hereby requests a trial by jury.”
Thus, it is clear that Solis complied with both the spirit and
the letter of Federal Rule 38(b), as well as Local Rule 38-1,
by unequivocally demanding a jury trial in both the caption
and at the end of his pleading.

[9] Moreover, there can be no question that both the district
court and the Defendants were aware of Solis’s demand for a
jury trial: the district court entered an “Order for Jury Trial,”

38(d) now states that a “proper demand may be withdrawn only if the par-
ties consent”; and Rule 39(a)(1) now states that, once a demand is made,
the trial “must be by jury unless . . . the parties or their attorneys file a
stipulation to a nonjury trial or so stipulate on the record.” These changes
to the rules’ wording were “intended to be stylistic only,” Fed. R. Civ. P.
38 & 39 advisory committee notes, and have no effect on the substance
of our decision.
 COUNTY OF LOS ANGELES v. BELTRAN 1449
the case was docketed for jury trial, and the Defendants filed
proposed jury instructions with the court. Indeed, the Defen-
dants do not dispute on appeal that they were aware of Solis’s
request. Therefore, because Solis’s jury demand was “suffi-
ciently clear to alert” both the Defendants and the district
court “that a jury trial [wa]s requested,” Lutz v. Glendale
Union High Sch., 403 F.3d 1061, 1064 (9th Cir. 2005), the
district court’s finding that Solis “did not file a jury demand”
was clearly erroneous.

2. Solis did not waive his right to a jury trial.

The district court also found, as a separate ground for deny-
ing Solis a jury trial, that Solis had waived his right to a trial
by jury “due to the non-submission of required pretrial
documents”—specifically, Solis’s failure to file proposed jury
instructions and special verdict forms, despite the district
court’s warning in its Order for Jury Trial that failure to do
so would “CONSTITUTE A WAIVER OF JURY TRIAL in
all civil cases.”

[10] When a party properly files a jury demand under the
requirements of Rule 38(b), he has satisfied all that is required
by the Rules to avoid waiver, and his jury demand “may not
be withdrawn without the consent of the parties.” Fed. R. Civ.
P. 38(d); see also Pradier, 641 F.2d at 810. The district
judge’s waiver provision required Solis to satisfy additional
procedural requirements beyond filing a jury demand—
namely, the filing of jury instructions and special verdict
forms—or to forfeit his jury trial right. This rule was clearly
inconsistent with Rule 38(d)’s limitation of waiver to the fail-
ure to file a jury demand and consequently cannot be
enforced. See Pradier, 641 F.2d at 810 (“[I]f Local Rule 22
is inconsistent with Fed. R. Civ. P. 38(b), it cannot be
enforced.”); Rutledge v. Elec. Hose & Rubber Co., 511 F.2d
668, 674 (9th Cir. 1975) (holding a local rule valid where its
“requirements . . . do not conflict with any of the provisions
of Rule 38”).
1450 COUNTY OF LOS ANGELES v. BELTRAN
[11] “The demand for a jury trial having been properly
made under Fed. R. Civ. P. 38(b), the failure to fulfill an addi-
tional requirement of a local rule . . . cannot constitute a
waiver of a trial by jury.” Pradier, 641 F.2d at 811. Solis
properly demanded a jury trial pursuant to the requirements of
Rule 38(b). The district court’s determination that his failure
to file proposed jury instructions and special verdict forms
constituted a waiver of his right to a trial by jury was there-
fore erroneous.

3. Solis did not consent to the withdrawal of his jury
demand.

The Defendants argue, nevertheless, that by “participat[ing]
in the [bench trial], inform[ing] the court of the witnesses he
intended to call, and . . . not contest[ing] or object[ing] to the
court’s finding of a waiver of jury trial,” Solis effectively con-
sented to the bench trial. We find this argument without merit.

Rule 38(d) states unequivocally that a “demand for trial by
jury . . . may not be withdrawn without the consent of the par-
ties,” Fed. R. Civ. P. 38(d) (emphasis added), and Rule 39(a)
specifies that such consent must be made by written or oral
stipulation. There is no dispute that Solis did not stipulate,
either orally or in writing, to consent to a bench trial. Thus,
it is clear that, under Federal Rules 38 and 39, Solis never
withdrew his jury trial demand.

[12] Nevertheless, this court has held that “knowing partici-
pation in a bench trial without objection is sufficient to consti-
tute a jury waiver,” the literal requirements of Rule 39(a)
notwithstanding. White v. McGinnis, 903 F.2d 699, 703 (9th
Cir. 1990) (en banc). We have made clear, however, that this
narrow exception to the formal requirements of Rules 38 and
39 applies only when the party claiming the jury trial right is
attempting to act strategically—participating in the bench trial
in the hopes of achieving a favorable outcome, then asserting
lack of consent to the bench trial when the result turns out to
 COUNTY OF LOS ANGELES v. BELTRAN 1451
be unfavorable to him. See Fuller v. City of Oakland, 47 F.3d
1522, 1531 (9th Cir. 1995) (stating that a primary rationale
behind White is the principle that “a party ought not to have
two bites at the procedural apple”). In White, for example,
although the district court set the case for a bench trial despite
the appellant’s timely jury trial demand, the appellant “never
brought his prior jury demand to the district court’s attention
during the five and one-half month period between the bench
trial notice and the trial,” “sat through the entire bench trial
and never once objected to the absence of a jury while his
counsel vigorously argued his case to the judge,” and did not
“notify the court of its mistake before it entered judgment
against him.” White, 903 F.2d at 700. We held that the appel-
lant’s “vigorous participation in [the] bench trial, without so
much as a mention of a jury” constituted a “knowledgeable
relinquishment of the prior jury demand.” Id. at 703. In avoid-
ing an overly rigid application of Rule 39, we emphasized the
equities involved, stressing that because the appellant “chose
to argue his case fully before the district judge,” it was “not
unjust to hold him to that commitment.” Id.

[13] Not every participation in a bench trial constitutes con-
sent to the waiver of a jury trial, however. When a party par-
ticipates in the bench trial ordered by the trial court while
continuing to demand a jury trial, his “continuing objection”
is “sufficient to preserve his right to appeal the denial of his
request for a jury.” United States v. Nordbrock, 941 F.2d 947,
950 (9th Cir. 1991); see also California Mobile Home, 107
F.3d at 1380 (noting that “no Court has expanded [White] to
find a waiver of a right to a jury trial where a plaintiff actively
contests the district court’s decision to refuse the demand”);
White, 903 F.2d at 703 (holding that “knowing participation
in a bench trial without objection” constitutes a jury waiver)
(emphasis added). This is because the party in such a case is
not seeking “two bites at the procedural apple” like the appel-
lant in White. Fuller, 47 F.3d at 1531. Rather, when a trial
court denies a party a jury trial despite the party’s continuing
demand, the party has little choice but to accede to the trial
1452 COUNTY OF LOS ANGELES v. BELTRAN
court’s ruling and participate in the bench trial. See Nord-
brock, 941 F.2d at 950 (“His assent to the [bench trial] was
reasonable in light of the court’s earlier ruling that implicitly
denied the demand for a jury trial.”). Reluctant participation
in a bench trial does not waive one’s Seventh Amendment
right to a jury trial under White’s narrow exception to Rule
39(a).

[14] In this case, it is clear that Solis was not seeking “two
bites at the procedural apple” by “participating” in the “Court
Trial by videotape depositions.” Once the district court found,
erroneously, that Solis had waived his right to a jury trial,
Solis had little option but to make his objection known and go
forward with the bench trial as best he could. That he did so
does not constitute “knowledgeable relinquishment of the
prior jury demand.” White, 903 F.2d at 703. Like the appellant
in Nordbrock, Solis did bring his prior jury demand to the dis-
trict court’s attention during the “period between the bench
trial notice and the trial.” White, 903 F.2d at 700. He noted
that demand in his second motion for counsel, filed after the
district court found that he had waived his jury right.12 Fur-
thermore, in contrast to the appellant in White, Solis’s “partic-
ipation” in the bench trial was far from “vigorous,” see id. at
703—the “trial” consisted solely of the court’s review of vid-
eotaped deposition testimony, during which the parties were
not even present. Therefore, indulging “every reasonable pre-
sumption against the waiver of the jury trial,” Nordbrock, 941
F.2d at 950 (citing Pradier, 641 F.2d at 811), as we are bound
to do, we hold that Solis did not, by participating in the dis-
12
Although Solis included his statement that he had “demanded a jury
trial” in his motion for counsel, rather than in a separate filing, we con-
strue it as a “continuing demand” under Nordbrock pursuant to our “policy
of liberal construction in favor of pro se litigants,” Rand, 154 F.3d at 957;
see also Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002) (“[W]e have
consistently held that procedural requirements should be more liberally
construed for pro se litigants.”). Moreover, it appears that at that time
Solis believed that he was still entitled to and would receive a trial by jury.
 COUNTY OF LOS ANGELES v. BELTRAN 1453
trict court’s bench trial by videotape depositions, consent to
the withdrawal of his prior jury demand.

4. The district court’s erroneous denial of a jury trial was
not harmless.

[15] Having concluded that the district court erred in deny-
ing Solis a jury trial, we must determine whether that error
was harmless. See Fuller, 47 F.3d at 1533. “The denial will
be harmless only if ‘no reasonable jury could have found for
the losing party, and the trial court could have granted a
directed verdict for the prevailing party.’ ” Id. (quoting Davis
& Cox v. Summa Corp., 751 F.2d 1507, 1517 (9th Cir. 1985)).

We hold that the district court’s denial of Solis’s jury trial
right was not harmless. Solis needed to prove the constitu-
tional violation he asserted—namely, that Beltran acted with
deliberate indifference in failing to protect him from attacks
by other inmates, in violation of the Eighth Amendment, see
Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)—by
only a preponderance of the evidence. See Tatum v. City &
County of San Francisco, 441 F.3d 1090, 1094 (9th Cir.
2006). Deliberate indifference occurs when “the official acted
or failed to act despite his knowledge of a substantial risk of
serious harm.” Farmer v. Brennan, 511 U.S. 825, 841 (1990).
Solis testified that he twice told Beltran that he was a gang
drop-out and that he presented documentary evidence to Bel-
tran establishing his status as an ex-Eme member, thereby
putting Beltran—who himself testified that he had authority
to change Solis’s housing assignment—on notice that a trans-
fer to the gang module could foreseeably result in Solis being
attacked. Solis also testified that one of the inmates who
assaulted him implicated Beltran directly in Solis’s transfer to
the gang unit, stating that “Beltran was the one that gave
[him] up.” Beltran, in turn, offered no explanation for Solis’s
transfer; his defense amounted to little more than a bald denial
of any knowledge of or interaction with Solis. The district
court itself found Beltran’s presentation of evidence “less than
1454 COUNTY OF LOS ANGELES v. BELTRAN
forthcoming,” and determined that Solis’s “version as to
many of the events seem[ed] more credible than that of [Bel-
tran’s] witnesses.”

[16] Given the relative credibility of the witnesses, a rea-
sonable jury could have found that Solis, through his docu-
ments establishing his ex-gang member status as well as
through his testimony that Beltran was aware of that status,
proved by a preponderance of the evidence that Beltran acted
with deliberate indifference in transferring him to the gang
module. Compare Frost, 152 F.3d at 1131. Therefore, the dis-
trict court’s erroneous denial of a jury trial was not harmless
and, consequently, we remand for retrial of Solis’s case
before a jury.13

D. Request for appointment of counsel

Finally, Solis argues that the district court abused its discre-
tion in denying his request for the appointment of counsel.
Title 28 U.S.C. § 1915(e)(1) permits the district court, in its
discretion, to “request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also
Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S.
1128 (2005). In this case, Solis twice requested the appoint-
ment of counsel. The district court rejected Solis’s first
request on the ground that no proof of service was attached.
In denying Solis’s second request, the district court stated
only that “[t]he Court has reviewed the motion for appoint-
13
Solis requests that we reverse the district court’s finding in favor of
Beltran and direct a verdict for him. Although we believe that a reasonable
jury could have found for Solis on the evidence presented, we do not
believe that his evidence was so strong that no reasonable jury could have
found for Beltran, see Ritchie v. United States, 451 F.3d 1019, 1023 (9th
Cir. 2006) (“[J]udgment as a matter of law is appropriate only if no rea-
sonable jury could find in favor of the non-moving party.”), and therefore
we decline to direct a verdict in Solis’s favor.
 COUNTY OF LOS ANGELES v. BELTRAN 1455
ment of counsel, filed by plaintiff on April 28, 2005. The
motion is denied.”

[17] We note that a jury trial will occur in this case, and
that Solis is incarcerated in a penal institution and is without
legal training. In fact, his education ended at the eighth grade
level. He is ill-suited to conduct a trial. We also note that
there may well be merit to his claims. However, because the
district court failed to articulate its reasons for denying Solis’s
request, we cannot determine on appellate review whether its
denial constituted an abuse of discretion. See United Nat’l Ins.
Co. v. R & D Latex Corp., 141 F.3d 916, 919 (9th Cir. 1998)
(“[M]eaningful appellate review for abuse of discretion is
foreclosed when the district court fails to articulate its reason-
ing.”); United States v. 30.64 Acres of Land, 795 F.2d 796,
804 (9th Cir. 1986) (holding that the district court “does not
discharge [its] duty [under § 1915(e)(1)] if it makes no
attempt to request the assistance of volunteer counsel or,
where the record is not otherwise clear, explain its failure to
do so”). Accordingly, we reverse the district court’s order
denying Solis’s motion to appoint counsel and instruct the
district court on remand to reconsider his request. If the dis-
trict court should, after considering all the relevant factors,
including those mentioned above, decide once again to deny
Solis’s motion for appointment of counsel, it must provide an
adequate explanation of its reasons such that its decision may
be reviewed by us on appeal.

III. Conclusion

Because Solis was not provided notice of the requirements
and consequences of summary judgement, as required by
Rand, we reverse the district court’s grant of summary judg-
ment in favor of the defendants other than Beltran and remand
all dismissed claims involving them (except for Solis’s
untimely § 1986 claim). We also reverse the district court’s
verdict in favor of Beltran and remand for a new trial before
a jury. The district court erred in denying Solis a jury trial: he
1456 COUNTY OF LOS ANGELES v. BELTRAN
properly demanded such a trial; his failure to submit specified
pretrial documents cannot constitute a waiver of the jury
right; and his “participation” in the bench trial did not amount
to consent to a waiver of his prior jury demand. The failure
to afford Solis a jury trial was not harmless error, as a reason-
able jury could have found that Beltran violated Solis’s con-
stitutional rights. Finally, we reverse the district court’s denial
of Solis’s request for appointment of counsel and remand on
that issue as well. Because our reversal means that Beltran is
no longer the “prevailing party,” we vacate the bill of costs
ordered against Solis. See Fed. R. Civ. P. 54(d).

The case is REVERSED and REMANDED, and the bill of
costs is VACATED.