                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 17 2012

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




                             FOR THE NINTH CIRCUIT



TIMOTHY DEMOND BARRY,                            No. 11-17817

               Plaintiff - Appellant,            D.C. No. 2:08-cv-01722-PMP-
                                                 GWF
  v.

T. FELKER; et al.,                               MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                      Philip M. Pro, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Timothy Demond Barry, a California state prisoner, appeals pro se from the

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

Amendment violations in connection with prison officials ordering him to kneel on




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the hot asphalt of the prison yard. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and

we vacate and remand.

      The record does not indicate that Barry received notice of the requirements

to defeat summary judgment. See Rand v. Rowland, 154 F.3d 952, 960 (9th Cir.

1998) (en banc) (pro se prisoners must be provided plain language notice of the

requirements to oppose summary judgment, of their right to file counter-affidavits

or other evidentiary material, that their failure to do so may result in summary

judgment against them, and that loss on summary judgment terminates the

litigation); see also Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (Rand

notice must be served concurrently with motion 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”). Further, the error was not harmless because

it is not clear from the record that there are no facts that would permit Barry to

prevail. See Woods, 684 F.3d at 941 (failure to provide adequate 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”).

      Each party shall bear its own costs on appeal.

      VACATED and REMANDED.


                                           2                                       11-17817
