Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding D.C. No. 2:04-cv-01225-LKK-GGH
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
D.C. No. 2:04-cv-01225-LKK-GGH
Argued and Submitted April 18, 2012-San Francisco, California
Before: Stephen Reinhardt, John T. Noonan, and Mary H. Murguia, Circuit Judges.
Opinion by Judge Reinhardt
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.
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.*fn1
First, the district court granted Carey's motion for summary judgment, concluding that Woods failed to connect him to the alleged deprivation of his constitutional rights.*fn2 Subsequently, it granted the defendants' motion to dismiss for failure to exhaust administrative remedies, but only as to one of the two grievances.*fn3 After proceeding to trial on the remaining grievance, 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.*fn4 We agree that the notice provided 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.
While incarcerated at California State Prison, Solano, 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 ...