                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 06 2010

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




                             FOR THE NINTH CIRCUIT

CHRISTOPHER A. JONES,                            No. 08-17677

               Plaintiff - Appellant,            D.C. No. 2:07-cv-01088-JCM-
                                                 GWF
  v.

DWIGHT NEVEN; et al.,                            MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                           Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS, and THOMAS, Circuit Judges.

       Christopher A. Jones (“Jones”), a Nevada state prisoner, appeals pro se from

the district court’s summary judgment for defendants in his 42 U.S.C. § 1983

action alleging that they violated his Eighth Amendment rights by exposing him to



          *
             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).

                                                                                  08-17677
unsafe levels of environmental tobacco smoke (“ETS”), forcing him to sleep on a

cell floor with constant illumination and noise from a light fixture, and failing to

inform him that he had tested positive for hepatitis C.

      The district court converted the defendants’ motion to dismiss into a

summary judgment motion, but the defendants failed to serve on Jones any of the

evidence they submitted in camera in support of the motion. In addition, the

district court did not afford Jones an adequate opportunity to obtain and submit

rebuttal evidence. In particular, documents that the district court ordered attached

to Jones’s verified Amended Complaint do not appear in the district court’s record.

Moreover, the district court denied Jones’s motion to stay resolution of summary

judgment pending an opportunity for discovery under Rule 56(f) of the Federal

Rules of Civil Procedure. Consequently, Jones had no meaningful opportunity to

oppose summary judgment. See Program Eng’g, Inc. v. Triangle Publ’ns, Inc.,

634 F.2d 1188, 1193 (9th Cir. 1980) (“Generally where a party has had no previous

opportunity to develop evidence and the evidence is crucial to material issues in

the case, discovery should be allowed before the trial court rules on a motion for

summary judgment.”); see also Fed. R. Civ. P. 56(f); Rand v. Rowland, 154 F.3d

952, 960-61 (9th Cir. 1998) (en banc) (setting forth rights of a pro se prisoner faced

with summary judgment motion, including right to present rebuttal evidence).


                                           2                                     08-17677
      The district court concluded, alternatively, that Jones’s claims do not set

forth violations of constitutional rights that were clearly established and that

therefore defendants were entitled to qualified immunity. The Eighth Amendment

rights Jones claims defendants violated, however, were clearly established. See

Helling v. McKinney, 509 U.S. 25, 34-35 (1993) (ETS exposure can be actionable

under § 1983); Keenan v. Hall, 83 F.3d 1083, 1089-92 (9th Cir. 1996) (same re

excessive noise, 24-hour illumination, and inadequate ventilation); Broughton v.

Cutter Labs., 622 F.2d 458, 459-60 (9th Cir. 1980) (per curiam) (same re hepatitis

treatment); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (“medically

unacceptable” treatment delay can establish deliberate indifference). We decline to

consider, in the first instance, “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” See Saucier v. Katz,

533 U.S. 194, 202 (2001).

      With the exception of the district court’s dismissal without prejudice of

Jones’s claim for professional negligence, which we affirm, we vacate the district

court’s order. On remand, the district court shall ensure that the defendants serve

on Jones a photocopy of each page of documentary evidence submitted for the

district court’s consideration. Such service on Jones shall be contemporaneous

with the submission of documentary evidence to the district court and shall be


                                           3                                       08-17677
subject to any protective order the district court may choose to enter. The district

court should also grant Jones an opportunity to conduct discovery before it

resolves any summary judgment motion.

      The clerk shall file Jones’s motion to cure deficiency in the record, which is

denied as moot.

      VACATED in part, AFFIRMED in part, and REMANDED.




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