                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ANDREW RICK LOPEZ,                               No. 11-16929

              Plaintiff - Appellant,             D.C. No. 2:03-cv-01605-KJM-
                                                 DAD
  v.

S. COOK, Captain; M. GARATE,                     MEMORANDUM*
Sergeant; R. MCKEAN, C/O; C. ADAMS,
Lieutenant; R. JOHNSON; J. HARRISON;
P. STATTI; D. SHAVER; A.
NERGENAH; N. MCCLURE;
VANDERVILLE; J. GILLAM; S.
BABBICH; T. BARTOS; JACKSON; D.
MORTON,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                       Argued and Submitted April 18, 2013
                            San Francisco, California

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff Andrew Lopez alleges that prison officials, in validating him as a

gang member and placing him in the Security Housing Unit, violated his due

process rights and unconstitutionally retaliated against him for his prison litigation

activities. The district court dismissed or granted summary judgment in favor of

several defendants, and the remaining causes resulted in a jury verdict in favor of

the defendants. We affirm in part, reverse in part, and remand.

      The district court did not give timely notice to Lopez as required by Rand v.

Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), after the defendants filed their

motion for summary judgment. See Woods v. Carey, 684 F.3d 934, 940–41 (9th

Cir. 2012). It is clear from the record, however, that there are no facts that would

have permitted Lopez to prevail against additional parties on the motion for

summary judgment, because he submitted several declarations on his motion for

summary judgment, and the district court considered this material in ruling on the

defendants’ summary judgment motion. There was therefore no reversible error in

granting summary judgment in favor of those defendants. See id. at 941.

      At trial, the district court allowed a witness called by Lopez to refuse to

testify upon invoking Fifth Amendment privilege that was not grounded upon any

possible criminal prosecution, but on a fear of possible prison administrative

consequences. This was error because the Fifth Amendment confers a privilege


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against self-incrimination only when there is a reasonable basis to believe the

“information sought, or discoverable as a result of his testimony, could be used in a

subsequent state or federal criminal proceeding.” U.S. v. Balsys, 524 U.S. 666, 672

(1998). Based on Lopez’s proffered questions for the witness, that assertion was

untenable here. This error was prejudicial since it deprived Lopez of evidence

bearing on the critical issue of the intent of a prison official, defendant Bartos. See

Obrey v. Johnson, 400 F.3d 691, 701–02 (9th Cir. 2005).

       Lopez’s motion for judgment as a matter of law was properly denied since

the identity of the critical decision-maker was a disputed question of fact. The

district court correctly instructed the jury that determining the identity of the

critical decision-maker is a question of fact, but erred in rejecting Lopez’s

proffered instruction that notice and an opportunity to be heard must be provided

before prison officials complete the validation process given the non-emergency

circumstances of this case. See Zinermon v. Burch, 494 U.S. 113, 127 (1990);

Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982).

       The district court erred in its pretrial dismissal of Lopez’s due process claim

against Special Services Unit Officer Harrison, thereby effectively dismissing him

from the case and allowing the defendants to argue to the jury that Harrison, rather




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than any of the defendants who remained in the case, was the critical decision-

maker.

      The judgment in favor of defendants Babich, Cook, Garate, Gilliam,

Holmes, James, Martinez, McClure, Shaver, and Vanderville entered on the basis

of the jury verdict on plaintiff’s due process claim is reversed and the claims are

remanded. The judgment entered before trial in favor of defendant Harrison on

plaintiff’s due process claim is reversed and the claim against him remanded. The

judgment in favor of defendant Bartos on plaintiff’s retaliation claim is also

reversed and remanded. The judgment of the district court is otherwise affirmed.

      Defendants’ motion for judicial notice on appeal is GRANTED.

      Each party shall bear its own costs.

      AFFIRMED in part; REVERSED and REMANDED in part.




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                                                                              FILED
Lopez v. Cook, No. 11-16929 (SF 4/18/13)                                       JUL 17 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

THOMAS, Circuit Judge, concurring in part and dissenting in part:

       I concur entirely in the majority disposition, with one exception: the

harmlessness of the Rand error. As I have previously stated, I am not particularly

enthused about the Rand/Klingele rule. Rand v. Rowland, 154 F.3d 952, 964 (9th

Cir. 1998) (en banc) (Thomas, J., concurring); see also Klingele v. Eikenberry, 849

F.2d 409, 411 (9th Cir. 1988). Although I believe providing a Rand-type notice is

laudable as a best practice, I believe that, in practice, application of the Rand rule

has become overly technical and overly rigid. Nonetheless, it is a rule that binds

us, and it is quite restrictive as to the use of harmless error.

       The harmless error rule articulated in Rand was confined to “exceptional”

cases, id. at 962, and not “where the harmfulness could not be fully assessed on

the record,” id. at 961. The Rand harmless error inquiry is focused not on the

merits of the motion, but on whether “[t]he record, objectively viewed, shows that

[the plaintiff] knew and understood the information in the Rand notice before he

received it.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013).

Placing the burden on the plaintiff to show what he would have placed in the

record had he been given proper notice, and then assessing that material on the

merits, is at odds with the type of harmless error analysis required by Rand.

       Prior to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), I might have held the
Rand error in this case harmless based on the prior Rand notifications to the

plaintiff in other cases. However, Woods holds that Rand notices must be given

concurrently with motions for summary judgment, and that notices provided more

than a year prior do not provide fair notice. Id. at 935-36.

      Thus, although I am sympathetic with a relaxation of the Rand harmless

error restrictions, I do not believe that the majority’s analysis can be reconciled

with Rand. Therefore, I must respectfully dissent in part.




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