Alan Dohner v. Robert Depweg

FILED
NOT FOR PUBLICATION JUL 25 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ALAN R. DOHNER, No. 09-57010

Plaintiff - Appellant, D.C. No. 2:03-cv-01682-TJH-
MAN
v.

ROBERT DEPWEG; et al., MEMORANDUM *

Defendants - Appellees,

and

ROXANA BUDEANU; et al.,

Defendants,

ANGELICA BUDEANU, Non-Party in
Pro Se,

Movant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Submitted July 17, 2012 **

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

Alan R. Dohner, a California state prisoner, appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

violations in connection with a criminal investigation. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. S.E.C. v. Nite, 207 F.3d 1134, 1135 (9th

Cir. 2000) (per curiam). We vacate and remand.

Before summary judgment is granted in a pro se prisoner’s action, the pro se

prisoner must be provided with fair notice of the requirements of the summary

judgment rule. See Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en

banc); see also Fed. R. Civ. P. 56(e). It is undisputed that Dohner, who was a

prisoner proceeding pro se at the time that summary judgment was filed, was not

provided with the notice required by Rand.

Contrary to appellees’ contention, the error was not harmless because

Dohner had not received Rand notice in prior recent litigation, and the record does

not disclose that he had a complete understanding of the requirements of Rule 56.

See Rand, 154 F.3d at 961-62 (explaining that “harmless error review is

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

2 09-57010
inappropriate in most cases” and refusing to engage in “subjective scrutiny of the

prisoner’s pleadings”).

Therefore, we vacate the district court’s judgment and remand for further

proceedings.

Dohner’s pending motion to for leave to file a supplemental brief, filed on

February 29, 2012, is denied as moot.

VACATED and REMANDED.

3 09-57010