                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK OTIS NELSON,                             No.   12-16805

              Plaintiff-Appellant,               D.C. No. 2:09-cv-00140-MSB

 v.
                                                 MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Marsha S. BERZON, Circuit Judge, Presiding

                    Argued and Submitted November 14, 2016
                            San Francisco, California

Before: REINHARDT and OWENS, Circuit Judges, and MENDOZA,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
      Patrick Otis Nelson appeals the district court’s order granting summary

judgment to defendant Captain Stephen Peck on Nelson’s Eighth Amendment

deliberate indifference claim, which arises out of Peck’s order that inmates of

California State Prison at Solano report to work during a 2008 work strike amidst

threats of violence. We REVERSE and REMAND.1

      1. The district court only provided Nelson with notice of the requirements

and effects of summary judgment – which is required under Rand v. Rowland, 154

F.3d 952 (9th Cir. 1998) (en banc) – nearly two years before defendant Peck

moved for summary judgment. This was reversible error: Rand notice “must be

served concurrently with motions . . . for summary judgment.” Woods v. Carey,

684 F.3d 934, 935 (9th Cir. 2012). This requirement was “presumed” in Rand, id.

at 938, and has consistently been applied retroactively by this court, see, e.g.,

Akhtar v. Mesa, 698 F.3d 1202, 1214 (9th Cir. 2012).

      This is not an “unusual case,” like Labatad v. Corrections Corp. of America,

714 F.3d 1155 (9th Cir. 2013) (per curiam), where the court can hold that any error

in the failure to provide contemporaneous Rand notice was harmless because the

plaintiff had a “complete understanding of Rule 56’s requirements.” Id. at 1159


      1
        Because this court’s decision does not rely on either of the cases that were
the subject of the parties’ motions for the panel to take judicial notice, those
motions are both denied.
                                           2
(citation omitted). Nelson repeatedly requested appointment of counsel and wrote

to the district court that he did not understand what to do on summary judgment.

See Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988) (considering

requests for counsel and “aware[ness] of [plaintiff’s] inadequacies” when assessing

whether plaintiff understood Rule 56’s requirements). He failed to comply with

local rules in his briefs. Also, he failed to dispute defendant’s statements of fact in

his opposition to summary judgment because of a lack of access to needed

materials.

      Even if the court applied harmless error analysis, the district court’s error in

this case was not harmless. The Rand notice provided to Nelson in 2010 stated that

if Nelson could provide “some good reason why [material] facts are not available

to plaintiff when required,” the court would “consider a request to postpone

considering the Defendant’s [summary judgment] motion.” Nelson had good

reason why no material facts were available to him – he had not understood when

or how to conduct discovery. Because he did not have Rand notice, he missed an

opportunity to request additional time for discovery, to which he was certainly

entitled, and could not adequately oppose the motion for summary judgment.

      2. The district court abused its discretion in failing to grant Nelson

additional time for discovery. Nelson’s motion to compel, filed the day before


                                            3
discovery closed, explained to the court that he had not yet been afforded any right

to discovery. The motion was sufficient for the court to construe it as a request for

additional discovery. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

When a confined pro se plaintiff requests additional discovery, summary judgment

is appropriate “only where such discovery would be ‘fruitless’ with respect to the

proof of a viable claim.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004).

Nelson’s interrogatories, attached to his motion to compel, included highly

relevant information that would likely have led him to records and other witnesses

who would have bolstered his claims. Therefore, the discovery requests were not

fruitless and should have been allowed prior to summary judgment.

      3. Because of the complexity of Nelson’s claims and the difficulty he has

evidently experienced in proceeding as an incarcerated pro se litigant, this court

instructs the district court on remand to appoint counsel to assist Nelson in

pursuing his case and to permit Nelson to conduct appropriate discovery before

proceeding to rule on any dispositive motions by the defendant.

      For the reasons expressed above, the district court’s decision to grant

summary judgment is REVERSED and REMANDED.




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