                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 18, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40401
                         Summary Calendar


IRON THUNDERHORSE

                     Plaintiff - Appellant

     v.

BILL PIERCE, Individually and in his Official Capacity as
Chaplaincy Director; RON TEEL, Individually and in his Official
Capacity as Coordinator of Native American Religious Programs;
UNIDENTIFIED DOES; BRAD LIVINGSTON

                     Defendants - Appellees

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:04-CV-222
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Iron Thunderhorse, Texas prisoner # 624391, filed the

instant civil rights action regarding religious freedom and

related matters pursuant to the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-

2000cc-5, and 42 U.S.C. § 1983.   He appeals the magistrate

judge’s grant of summary judgment to the defendants.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 06-40401
                                 -2-

     Thunderhorse argues that the magistrate judge abused her

discretion by denying the motion to intervene of the Algonquian

Confederacy of the Quinnipiac Tribal Council, Inc., (ACQTC), the

tribal corporation of which Thunderhorse is the Grand Sachem and

legal sovereign.    The ACQTC did not show that a statute gave it

the right to intervene or that its interests were not adequately

represented by Thunderhorse.   Accordingly, the magistrate judge

did not err by denying the ACQTC’s request to intervene as a

matter of right pursuant to FED. R. CIV. P. 24(a) or abuse her

discretion by denying permissive intervention pursuant to FED.

R. CIV. P. 24(b).   See Kneeland v. NCAA, 806 F.2d 1285, 1287-89

(5th Cir. 1987); Hopwood v. Texas, 21 F.3d 603, 606 (5th Cir.

1994).

     Thunderhorse contends that the grant of summary judgment was

improper because he was not given proper notice and did not file

all of his evidence.   He has moved for supplementation of the

record to include more than 100 pieces of physical and

documentary evidence that he did not submit to the district

court.   He additionally argues that the grant of summary judgment

was erroneous on its merits.

     The magistrate judge entered an order setting the case for a

bench trial and requiring the parties to file witness and exhibit

lists.   The order required any party wishing to file a

dispositive motion to request and receive permission to file such

a motion.   The defendants then filed motions for summary judgment
                             No. 06-40401
                                  -3-

without requesting leave to file them.      While Thunderhorse filed

responses to the motions for summary judgment, the responses did

not include a large amount of evidence that was listed on his

exhibit list for trial.    Without giving further notice to

Thunderhorse, the magistrate judge granted the defendants’

summary judgment motions and cancelled the bench trial.

     The magistrate judge was required to give Thunderhorse at

least 10 days notice that she was considering entering summary

judgment against him.     See NL Indus., Inc. v. GHR Energy Corp.,

940 F.2d 957, 965 (5th Cir. 1991).    “Federal Rule of Civil

Procedure 56 contemplates ten days advance notice to the adverse

party that the matter will be taken under advisement as of a

certain day.”   Resolution Trust Corp. v. Sharif-Munir-Davidson

Dev. Corp., 992 F.2d 1398, 1402 (5th Cir. 1993) (internal

quotation marks and citation omitted).      Any reasonable doubt

about whether notice was received must be resolved in favor of

Thunderhorse.   See NL Indus., Inc., 940 F.2d at 965.

     While the filing of a motion for summary judgment normally

gives sufficient notice, the magistrate judge’s previous order

led Thunderhorse to reasonably believe that the case was going to

trial without consideration of the summary judgment motions.       See

Capital Films Corp. v. Charles Fries Prods., Inc., 628 F.2d 387,

391-92 (5th Cir. 1980).    Given the circumstances, Thunderhorse

did not receive sufficient notice, and the magistrate judge’s
                           No. 06-40401
                                -4-

grant of summary judgment was an abuse of discretion.   See id.;

Sharif, 992 F.2d at 1400-03.

     Given the large amount of evidence that Thunderhorse did not

file, we cannot say that the error was harmless, and the

magistrate judge should consider the motions for summary judgment

in light of this evidence in the first instance.   See Simmons v.

Reliance Standard Life Ins. Co. of Tex., 310 F.3d 865, 870 (5th

Cir. 2002).   Accordingly, we vacate the grant of summary judgment

to the defendants and remand for further proceedings not

inconsistent with this opinion.   We do not reach Thunderhorse’s

arguments regarding the merits of the grant of summary judgment,

and his motion for supplementation of the record is moot.

     AFFIRMED IN PART, VACATED AND REMANDED IN PART; MOTION FOR

SUPPLEMENTATION OF THE RECORD DENIED AS MOOT.
