                                                                              FILED
                           NOT FOR PUBLICATION                                APR 30 2014

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



                            FOR THE NINTH CIRCUIT


KEENAN G. WILKINS, AKA Neerah                    No. 12-16583
Brown,
                                                 D.C. No. 5:10-cv-03090-LHK
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

COUNTY OF ALAMEDA; GREGORY J.
AHERN; CARLA J. KENNEDY; JAMES
E. AYALA; ANDREW THEOBALD; P.J.
KENNEDY; D. L. SNIDER; D.
SANCHAS; G. BOWMAN; K. ARY;
PATRICK JONES; R. DELGADILLIO;
DAVE MACDONALD; JANET PETERS;
LOLITA FRANCISCO,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                      Lucy Koh, District Judge, Presiding

                        Argued and Submitted April 8, 2014
                               Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff Keenan Wilkins appeals the district court’s summary judgment as

to all claims in favor of Defendants, including the County of Alameda and officers

at the Alameda County Sheriff’s Office. Wilkins, a prisoner who litigated pro se

before the district court, alleges in a suit under 42 U.S.C. § 1983 that while he was

being held as a pretrial detainee in Alameda County, Defendants precluded him

from voting in elections in 2008, 2009, and 2010. Wilkins asserts that in doing so,

Defendants violated his fundamental right to vote, his equal protection rights, and

his due process rights. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in part, reverse in part, and remand.

      Wilkins alleges first, pursuant to 42 U.S.C. § 1983, that Defendants’ conduct

infringed upon his fundamental right to vote. To prevail on a claim under § 1983,

Wilkins needs to show that he was deprived of a federal constitutional or federal

statutory right. See Galen v. Cnty. of L.A., 477 F.3d 652, 662 (9th Cir. 2007). But

Wilkins was convicted of a felony in 1999 and thus California could (and did, for

some time) deny him the right to vote without violating the Equal Protection

Clause. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974). California has re-

enfranchised Wilkins because he completed his sentence and any parole, see Cal.

Const. art. II, § 4; Cal. Elec. Code § 2101, but we have previously held that such

re-enfranchisement is a statutory benefit conferred by the state, see Harvey v.


                                          2
Brewer, 605. F.3d 1067, 1079 (9th Cir. 2010) (holding that a state’s decision to re-

enfranchise convicted felons is a “statutory benefit . . . not a fundamental right”).

We thus conclude that Wilkins’s claim concerns the alleged deprivation of a state

statutory right, which is not actionable in a suit under § 1983. Accordingly, the

district court properly granted summary judgment in favor of Defendants on

Wilkins’s fundamental right-to-vote claim.1

      Wilkins next asserts that Defendants’ conduct violated his rights under the

Equal Protection clause, in part because at least one other inmate allegedly

received a ballot before the 2008 elections but Wilkins did not. “Even a statutory

benefit can run afoul of the Equal Protection Clause . . . if it confers rights in a

discriminatory manner or distinguishes between groups in a manner that is not

rationally related to a legitimate state interest.” Id.

      The district court erred in granting summary judgment for Defendants on

Wilkins’s equal protection claim for two reasons. First, Defendants did not move

for summary judgment on Wilkins’s equal protection claim based on allegations

that he was treated differently than other inmates. Their cursory mention that they

      1
       To the extent that Wilkins asserts that Defendants violated his substantive
due process rights by infringing upon a deeply rooted and fundamental right, see
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), then that claim is
coextensive with his fundamental right-to-vote claim and the district court properly
granted summary judgment on it as well.

                                            3
were moving “on all claims” did not suffice to alert Wilkins, a pro se litigant, that

they sought summary judgment on his equal protection claim when they neither

mentioned that claim specifically nor presented any argument on it. The district

court effectively, then, granted summary judgment on this claim sua sponte.

Because Wilkins had no notice that his equal protection claim, as distinct from his

right-to-vote claim, was at issue on summary judgment, we reverse. See

Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993); see also Greene v.

Solano Cnty. Jail, 513 F.3d 982, 985-86, 990 (9th Cir. 2008).

      Second, Wilkins was not properly provided with notice of his obligations

under Federal Rule of Civil Procedure 56, as is required by Rand v. Rowland, 154

F.3d 952 (9th Cir. 1998) (en banc). The notice the district court provided was

untimely, see Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012), and the notice

Defendants sent to Wilkins did not conform to the requirements laid out for Rand

notice sent by the moving party, see Rand, 154 F.3d at 960. It is not the case that

there are no facts on which Wilkins could prevail, and the record does not establish

that Wilkins understood the summary-judgment proceedings from some outside

source of information. The inadequate Rand notice was thus not harmless, and for

this reason too we reverse the grant of summary judgment on Wilkins’s equal

protection claim. See Woods, 684 F.3d at 941; Rand, 154 F.3d at 961-62.


                                          4
      Wilkins also asserted a violation of his procedural due process rights, a

claim under 42 U.S.C. § 1985(3) alleging a conspiracy to deprive him of his rights,

and a claim under 42 U.S.C. § 1986 alleging negligent or willful failure to prevent

such a conspiracy. Because the inadequacy of the Rand notice given to Wilkins

was not harmless, we also reverse the grant of summary judgment on these three

claims.

      Finally, Wilkins sought appointed counsel. The district court did not abuse

its discretion in denying Wilkins’s request, because Wilkins had demonstrated the

ability to present his claims adequately.2 See Wilborn v. Escalderon, 789 F.2d

1328, 1331 (9th Cir. 1986).

      In conclusion, we reverse and remand for further proceedings as to

Wilkins’s equal protection, procedural due process, 42 U.S.C. § 1985(3), and 42

U.S.C. § 1986 claims. We affirm as to all other claims.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      Each party shall bear its own costs on appeal.




      2
       We do not address whether the appointment of counsel, if sought, would be
appropriate on remand.

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