Earnest Woods, II v. Tom Carey

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