FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARNEST CASSELL WOODS, II,
Plaintiff-Appellant, No. 09-15548
v.
D.C. No.
2:04-cv-01225-
TOM L. CAREY, Warden; T.
DICKENSON; CERVANTES, LKK-GGH
Defendants-Appellees.
EARNEST CASSELL WOODS, II,
Plaintiff-Appellee,
v. No. 09-16113
TOM L. CAREY, Warden; T. D.C. No.
DICKENSON, 2:04-cv-01225-
Defendants, LKK-GGH
and OPINION
SANTOS CERVANTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
April 18, 2012—San Francisco, California
Filed July 6, 2012
7871
7872 WOODS v. CAREY
Before: Stephen Reinhardt, John T. Noonan, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Reinhardt
7874 WOODS v. CAREY
COUNSEL
Erica Griffith (argued) and Jeffrey T. Renz, Missoula, Mis-
souri, for the plaintiff-appellant.
Jennifer Marquez (argued), Sacramento, California, for the
defendant-appellee.
OPINION
REINHARDT, Circuit Judge:
We hold in this case that Rand and Wyatt notices must be
served concurrently with motions to dismiss and motions for
summary judgment so that pro se prisoner plaintiffs will have
fair, timely and adequate notice of what is required of them
in order to oppose those motions. Notices served at a time
when defendants have not yet filed motions to dismiss or
motions for summary judgment (and may never file such
motions) do not sufficiently serve that purpose.
INTRODUCTION
Earnest Cassell Woods, formerly an inmate at California
State Prison, Solano, sued Warden Tom Carey and Appeals
Coordinator Santos Cervantes under 42 U.S.C. § 1983 for
deliberate indifference to his medical needs due to the
improper denial of two grievance forms seeking dental care.1
First, the district court granted Carey’s motion for summary
judgment, concluding that Woods failed to connect him to the
1
Woods initially named both of Solano’s appeals coordinators as defen-
dants in his suit, alleging in his complaint that he was unaware which indi-
vidual was responsible for denying his grievances. The second
coordinator, Tom Dickenson, moved for summary judgment on the basis
that he was not a party to the challenged conduct and his motion was
granted. This decision is not appealed by Woods.
WOODS v. CAREY 7875
alleged deprivation of his constitutional rights.2 Subsequently,
it granted the defendants’ motion to dismiss for failure to
exhaust administrative remedies, but only as to one of the two
grievances.3 After proceeding to trial on the remaining griev-
ance, Woods obtained a jury verdict against Cervantes, the
only remaining defendant. Woods appeals the district court’s
grant of the motion for summary judgment in favor of Carey
as well as the motion to dismiss in favor of both defendants
as to the purportedly unexhausted grievance. He asserts that
he was not provided fair notice of the requirements necessary
in order to oppose the motions.4 We agree that the notice pro-
vided by the district court, which preceded the filing of the
motion for summary judgment by over a year and the motion
to dismiss by more than two years, did not provide fair notice
to Woods, a pro se prisoner plaintiff. We hold that notice
required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)
(en banc), and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
2003), must be provided to pro se prisoner plaintiffs at the
time the defendants’ motions are filed.
BACKGROUND
While incarcerated at California State Prison, Solano,
2
The court granted Carey’s motion for summary judgment on Woods’s
claims against him in his individual capacity, but, because Woods also
requested injunctive relief, Carey remained a defendant in his official
capacity as Solano Warden. This claim was ultimately dismissed as moot
before trial, when Woods was transferred out of the Solano facility. The
suit proceeded to trial with Cervantes as the only remaining defendant.
3
The filing of the motion to dismiss followed the filing of the summary
judgment motion due to an intervening ruling by the Supreme Court in
Woodford v. Ngo, 548 U.S. 81 (2006), which held that the exhaustion
requirement under the Prison Litigation Reform Act is not satisfied if a
grievance is denied as untimely. Id. at 87.
4
Woods also appeals a number of other rulings of the district court, and
Cervantes challenges the judgment against him on cross-appeal. We reject
those objections and affirm the district court in all other respects in a sepa-
rate memorandum disposition filed concurrently herewith.
7876 WOODS v. CAREY
Woods filed a request to receive dental care to fix his broken
partial dentures on October 16, 2002. He received an
acknowledgment from the prison’s dental services department
informing him that he was placed on the wait list to receive
dental care, that the expected waiting time was several
months, and that he would be contacted when it was his turn.
After a year had passed without his receiving any treatment
to address this issue or any further notification from dental
services, Woods filed a grievance form on November 27,
2003, seeking immediate care. He was informed by dental
services that he had been removed from the wait list. Woods
continued to attempt to exhaust his administrative remedies
by filing a formal level appeal. On December 3, 2003, Woods
filed another grievance, again seeking immediate dental care,
this time due to a broken tooth caused by his attempt to eat
with the broken partial denture. He was again informed that
his name was not on the list to receive dental care and
instructed to make a formal request to be placed on the list.
Woods filed a formal level appeal of this grievance as well.
Both grievances were screened out at the formal-appeal level
by Cervantes.
Woods filed a civil suit under 42 U.S.C. § 1983, alleging
that Cervantes’s responses repeatedly and incorrectly
screened out his grievance forms, prevented him from prop-
erly exhausting his claims and impeded his access to neces-
sary dental treatment. Woods alleged that Cervantes’s
intentional interference with his attempts to receive dental
care amounted to a violation of his Eighth Amendment right.
Woods also named Carey as a party, and alleged that the war-
den was also responsible for preventing him from obtaining
the necessary treatment.
On October 14, 2004, shortly after Woods filed his
amended complaint, the district court issued an order direct-
ing service on the defendants by the United States Marshal.
Included in this five-page order was a notice to the plaintiff
advising him of the requirements for opposing a motion for
WOODS v. CAREY 7877
summary judgment, or a motion to dismiss for failure to
exhaust administrative remedies, as required under Rand, 154
F.3d 952, and Wyatt, 315 F.3d 1108, respectively. Neither
motion had been made at the time. The notice specified that
Woods was required to present affidavits, declarations, or
other forms of evidence to defeat any such motions, and that
any affidavits or declarations submitted must be signed. It
also informed Woods that failure to defeat either motion
would result in the termination of his suit.
More than a year later, in December 2005, the defendants
filed a motion for summary judgment. The motion was
accompanied by a sworn declaration, made under penalty of
perjury, by Carey stating that between August 15, 2002 and
September 22, 2004, he “never had any conversations with
plaintiff regarding delay of dental treatment or the [grievance]
appeals process . . . [and] never received any complaints from
plaintiff regarding the . . . appeals process.” In response,
Woods filed his opposition, which did not conform with the
requirements outlined in the Rand notice. As a result, his
opposition was stricken, and the magistrate judge reviewing
the motion relied only on Woods’ verified complaint and
attached exhibits. Woods did not submit a copy of a letter that
he had in his possession that he had written to Carey, and was
marked as received by him on March 4, 2003. In the letter,
Woods explained that he was “trying everything that [he
could] do to exhaust [his] state remedies so that someone will
hear [his] appeal in the court system if not in the state Depart-
ment of Corrections,” and complained that Cervantes was
improperly screening out his grievances and thereby prevent-
ing him from exhausting his appeals. The letter also stated
that Woods was aware that “Cervantes has been violating the
rights of other African Americans while filing appeals,” and
that Carey had received “numerous other complaints,” and
asked that the warden “pay attention to” this conduct. It was
signed and dated by Carey with the notation “To: S. Cervan-
tes. For your review,” and was stamped “Received” on March
5, 2003 by the Solano Appeals Office. A copy of this letter
7878 WOODS v. CAREY
was not produced by Woods until September, 2008, when he
included it as a proposed trial exhibit, two years after sum-
mary judgment had been granted for Carey. In granting sum-
mary judgment to Carey in his individual capacity on
September 28, 2006, the court adopted the report and recom-
mendations of the magistrate, which found that Woods had
failed to support his claim against Carey with specific allega-
tions. It also specifically credited Carey’s statement that he
was “unaware of plaintiff ’s allegations.” On the first day of
trial in February 2009, Woods learned, apparently for the first
time, that Carey had been dismissed as a party. Woods’s
claim against Cervantes survived the summary judgment
motion.5 The court concluded that Woods’s condition consti-
tuted a serious dental need, and that it was clearly established
that he had a right to adequate dental care and that improperly
preventing him from obtaining that care could amount to a
constitutional violation.
In December, 2006, the defendants filed a motion to dis-
miss for failure to exhaust administrative remedies under
Woodford, 548 U.S. at 90-93. In addition to filing an opposi-
tion to the defendants’ motion, Woods submitted a series of
objections and a request for judicial notice. All of Woods’s
filings, with the exception of his initial opposition, were
stricken by the district court as improper. In adopting the rec-
ommendations of the magistrate, the district court found with
respect to the grievance filed on November 23, 2003, that
Woods had followed the proper procedure and it was Cervan-
tes’s attempts to give him “the run around” that prevented him
from successfully exhausting the administrative process. It
allowed Woods’s claim based on this grievance to go forward,
but dismissed the December 3, 2003 grievance after finding
that Woods failed to timely submit his formal-level appeal.
5
Woods’s claim against Carey in his official capacity for injunctive
relief had initially survived, but was subsequently dismissed as moot when
Woods was transferred out of Solano prior to trial.
WOODS v. CAREY 7879
After his thirteen motions requesting counsel were denied,
Woods proceeded to trial unrepresented. After a two-day jury
trial, he won a verdict against Cervantes and received an
award of $500 in compensatory damages and $1000 in puni-
tive damages. Despite this limited success, Woods appealed
a number of the district court’s rulings, including its grant of
summary judgment for Carey and its grant of the defendants’
motion to dismiss the portion of his claim related to the
December 3rd grievance. Represented by pro bono counsel on
appeal, Woods contends that the district court failed to pro-
vide fair notice of what was required of him in order to defeat
the defendants’ motions, and he requests that we reverse the
orders entered against him and remand with instructions to the
district court to provide sufficient notice if the defendants re-
file their motions.
DISCUSSION
[1] In Klingele v. Eikenberry, 849 F.2d 409, this court held
that “[d]istrict courts are obligated to advise prisoner pro per
litigants of Rule 56 requirements.” Id. at 411-12 (9th Cir.
1988). Ten years later, in Rand, we reaffirmed this rule. 154
F.3d at 953. In doing so, we recognized that the “unique hand-
icaps of incarceration,” including prisoners’ limited access to
legal materials, constraints on their abilities to obtain evi-
dence, and difficulties monitoring the progress of their cases,
among other limitations, created special problems for pro se
prisoner plaintiffs. Id. at 958. These additional hardships
required that affirmative steps be taken to ensure that “a pris-
oner’s access to the courts is adequate, effective, and mean-
ingful.” Id. (quoting Bounds v. Smith, 430 U.S. 817, 822
(1977)) (internal quotation marks omitted). Thus, we held that
pro se prisoner plaintiffs must receive fair notice of the
requirements needed to defeat a defendant’s motion for sum-
mary judgment under Rule 56 of the Federal Rules of Civil
Procedure.
[2] In Rand, we described in detail the necessary elements
of the written notice that must be provided to the pro se pris-
7880 WOODS v. CAREY
oner litigant to sufficiently apprise him of the requirements to
defeat a motion under Rule 56. Id. at 960-61. Adequate fair
notice required that the litigant be provided, in plain, under-
standable language, notice of his right to file counter-
affidavits or other evidentiary material, that his failure to do
so may result in summary judgment against him, and that his
loss on summary judgment would terminate the litigation. Id.
We also included in our opinion a model notice to advise dis-
trict courts and future litigants of the acceptable language to
be used to convey these requirements to subsequent pro se
prisoner plaintiffs. In Wyatt we extended this notice require-
ment and instructed that “if the district court looks beyond the
pleadings to a factual record in deciding the motion to dismiss
for failure to exhaust . . . then the court must assure that [the
plaintiff] has fair notice of his opportunity to develop a
record.” 315 F.3d at 1120 n.14. Thus, after Wyatt, fair notice
of the requirements needed to defeat a defendant’s motion to
dismiss for failure to exhaust administrative remedies must
also be provided to a pro se prisoner litigant.
[3] In our discussions in Rand and Wyatt, we did not
expressly articulate any temporal requirement for the provi-
sion of notice. The language used by this court in Rand,
including the language of the incorporated model notice, pre-
sumed, however, that notice would be provided at the time of
the defendant’s motion for summary judgment. For instance,
the first sentence of the model notice states: “The defendants
have made a motion for summary judgment by which they
seek to have your case dismissed.” Rand, 154 F.3d at 962-63
(emphasis added). In its discussion of who bears responsibil-
ity for providing this notice to plaintiffs, the court recognized
that the “summary judgment movant” may furnish this notice,
as long as it is presented separately from the papers filed in
support of the defendant’s motion. Id. at 960 (emphasis
added). In both of these references to the provision of notice,
the court took for granted that a motion for summary judg-
ment would have already been made; it is this motion that the
court recognized triggers the duty to provide fair notice.
WOODS v. CAREY 7881
The Ninth Circuit is among the majority of circuits that
have adopted a fair notice requirement for pro se prisoner
plaintiffs. Graham v. Lewinski, 848 F.2d 342, 345 (2d Cir.
1988); Renchenski v. Williams, 622 F.3d 315, 340-41 (3rd Cir.
2010); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975) (per curiam); United States v. Ninety-Three Firearms,
330 F.3d 414, 427-28 (6th Cir. 2003); Lewis v. Faulkner, 689
F.2d 100, 102 (7th Cir. 1982); Nickens v. White, 622 F.2d
967, 971 (8th Cir. 1980); Griffith v. Wainwright, 772 F.2d
822, 825 n.6 (11th Cir. 1985); Hudson v. Hardy, 412 F.2d
1091, 1094 (D.C. Cir. 1968). Contra Martin v. Harrison Cnty.
Jail, 975 F.2d 192, 193 (5th Cir. 1992) (per curiam). Like our
circuit, other circuits have not heretofore explicitly required
that notice must be provided at the time of the summary judg-
ment motion, although they have similarly presumed that such
would be the case. Among those with similar presumptions
are the Second Circuit, Graham, 848 F.2d at 345 (“The State
has represented to us that in the future, whenever it moves for
summary judgment in a suit in which the opposing party is an
incarcerated pro se litigant, it will include an easily compre-
hensible notice . . . . We regard that as a sensible course to
follow.” (emphasis added)), the Seventh Circuit, Timms v.
Frank, 953 F.2d 281, 285 (7th Cir. 1992) (“Counsel should
include this notice with the summary judgment motion, but if
they fail to do so this responsibility will fall on the district
court.” (emphasis added)), and the D.C. Circuit, Neal v. Kelly,
963 F.2d 453, 456 (D.C. Cir. 1992) (“[W]e hope that in future
cases, counsel for incarcerating governmental defendants will
assist district judges in bearing their burden by including in
motions for summary judgment directed at actions by pro se
plaintiffs, a short and plain statement . . . .” (internal citation
omitted) (emphasis added)). It is the D.C. Circuit’s opinion in
Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968), that pro-
vided the basis for our circuit’s recognition of the fair notice
requirement. See Jacobsen v. Filler, 790 F.2d 1362, 1364 n.
4 (9th Cir. 1986). The assumption that the required notice will
be given contemporaneously with the summary judgment
motion is prevalent, even though not explicitly announced by
7882 WOODS v. CAREY
these courts as an affirmative requirement. Given that the pur-
pose of the fair notice requirement is to ensure that unsophis-
ticated and unassisted litigants do not succumb to “procedural
booby traps [that] could prevent [them] from ever having their
day in court,” Rand, 154 F.3d at 958 (quoting Surowitz v. Hil-
ton Hotels Corp., 383 U.S. 363, 373 (1966)) (internal quota-
tion marks omitted), it is essential that such notice be
provided at the time when the defendants’ motions are made,
not a year or more in advance. Otherwise, the “procedural
booby traps” we sought to avoid in Rand may well prevent
pro se prisoners “from ever having their day in court.”
[4] In addition to the implicit presumptions of this court
and others that the necessary fair notice is to be provided at
the time of the defendant’s motions, the recognized circum-
stances facing prisoner litigants also support adopting such an
explicit requirement. In Rand, as well as in the precedents
upon which it relied, we acknowledged some of the hardships
of pro se prisoner plaintiffs. Among them was the prisoners’
limited ability to obtain legal material. See Rand, 154 F.3d at
958; Jacobson, 790 F.2d at 1364 n. 4. This limited access
includes restrictions on a prisoner’s ability to obtain access to,
or even retain, his own legal files. In this case, for instance,
Woods was moved within and between prisons during the
course of this litigation and repeatedly complained to the
court that he was being denied access to his legal material.
See, e.g., DKT 53:2 (noting that Woods had been moved
within the prison and that staff had reportedly rummaged
through his belongings); DKT134: 17-19 (appeals form not-
ing Woods’s complaints about his limited access to his legal
papers and the denial of his requests to gain access to those
papers); DKT 123:1 (noting Woods’s move to Soledad
prison). Woods is among many prisoners who have had lim-
ited access to their own legal documents over the course of
their detention, or who have alleged the loss or destruction of
relevant materials by prison officials. See, e.g., Vigliotto v.
Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) (prisoner’s legal
documents for his self-represented appeal lost after being
WOODS v. CAREY 7883
removed from cell by prison officials); DeWitt v. Pail, 366
F.2d 682, 684 (9th Cir. 1966) (per curiam) (prison officials
confiscated the prisoner’s legal papers as a disciplinary mea-
sure); Monroe v. Beard, 536 F.3d 198, 204 (3rd Cir. 2008)
(prison officials confiscated prisoners’ contraband and non-
contraband legal materials); United States v. Gabaldon, 522
F.3d 1121, 1124 (10th Cir. 2008) (denial of prisoner’s access
to his legal papers while he was held in segregation for two
months); Adams v. Carlson, 488 F.2d 619, 623 (7th Cir. 1973)
(prisoners’ legal papers confiscated by prison officials and not
returned). Distributing a generic notice at the outset of litiga-
tion does not help alleviate these hardships affecting pro se
prisoner plaintiffs. The provision of detailed explanations of
what the litigant must do in response to motions that have not
yet been filed, may never be filed, or, as in this case, will not
be filed for a considerable time to come, is likely to serve lit-
tle purpose at the time of receipt or afterwards. The notice is
apt to be lost, forgotten, or rendered inaccessible by the time
it becomes necessary for the litigant to marshal a response.
The only satisfactory practice to ensure that prisoners receive
adequate notice pursuant to Rand and Wyatt is to provide such
notice at the time that the relevant motions are filed. We
express the same faith as other circuits in “trust[ing] that
counsel for the defendants in prisoner civil rights cases in this
circuit will lift this new burden from the judges’ shoulders, by
henceforth including in any motion for summary judgment [or
motion to dismiss] in a case where the plaintiff is not assisted
by counsel a short and plain statement [as required under
Rand and Wyatt].” Lewis, 689 F.2d at 102. If, however, such
defendants fail to provide appropriate notice, “the ultimate
responsibility of assuring that the prisoner receives fair notice
remains with the district court.” Rand, 154 F.3d at 960.6
6
Because the defendants in pro se prisoner cases are ordinarily institu-
tional officials or employees, and are represented by the Attorney General
or other counsel regularly retained by the governmental entities involved,
we express no view as to the methods the district court may employ,
including sanctions, to ensure that defendants provide proper notice rather
than imposing that burden on the overworked district courts.
7884 WOODS v. CAREY
[5] We appreciate the district court’s effort to provide
notice as a matter of course at the outset of litigation in an
attempt to ensure that pro se prisoner plaintiffs routinely
receive adequate notice. Nonetheless, the issuance of the
Rand and Wyatt notices prior to any motion by the defen-
dants, and, as in this case, preceding the filing of the relevant
motions by a substantial period of time, rendered this routine
dissemination ineffective. The reason for the rule of timely
notification is illustrated by the case before us. Woods had in
his possession a letter explicitly informing Carey of Cervan-
tes’s conduct of improperly preventing inmates from exhaust-
ing their administrative appeals, signed by Carey, which flatly
contradicted the assertions made in Carey’s sworn statement,
which formed the basis for the grant of his summary judgment
motion. Woods appears to have recognized the value of this
document, but believed that he would be able to present it at
trial. Had he been timely apprised that the submission of such
evidence was necessary to defeat the defendants’ summary
judgment motion at the time that the motion was made, it is
very unlikely that summary judgment would have been
granted.
[6] The failure to provide adequate Rand notice is a ground
for reversal unless it is clear from the record that there are no
facts that would permit the inmate to prevail. Rand, 154 F.3d
at 962 n.9. Here, quite the opposite is true. If Woods had pre-
sented the evidence in his possession that Carey was aware
that Cervantes was improperly impeding access to the griev-
ance process he might well have prevailed against Carey. See
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A super-
visor is only liable for constitutional violations of his subordi-
nates if the supervisor . . . knew of the violations and failed
to act to prevent them.”). Reversal therefore is the proper rem-
edy. The same is true with regard to the motion to dismiss.
Woods might well have been able to provide evidence that he
attempted to exhaust his December 3rd grievance and was
prevented from doing so by prison officials. If the district
court determined that his failure to exhaust was caused by
WOODS v. CAREY 7885
Cervantes’s conduct or that of other prison officials, his fail-
ure to exhaust would not have provided a ground for dismissal
of his claim. Marella v. Terhune, 568 F.3d 1024, 1027 (9th
Cir. 2009) (“[W]e reverse the district court’s dismissal of the
case for failure to appeal properly because the appeals process
was unavailable to him.”). We therefore reverse the district
court’s grant of both motions, and direct that on remand
Woods be provided with proper notice if and when the defen-
dants re-file either or both of the relevant motions. The rule
we adopt here shall apply in all pending and future cases.
REVERSED and REMANDED