Unpublished Disposition, 921 F.2d 281 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1988)

David Janos RION, Plaintiff-Appellant,v.ARIZONA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

No. 88-15623.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 8, 1990.* Decided Dec. 27, 1990.

Before CHOY, DAVID R. THOMPSON and TROTT, Circuit Judges.


MEMORANDUM** 

SUMMARY

Appellant David Rion, an Arizona state prison inmate, appeals pro se the summary judgment dismissing his claims under 42 U.S.C. § 1983 that appellees deprived him of property and ignored his related grievances, and provided insufficient opportunity for outdoor exercise. The district court granted summary judgment on the grounds that appellant failed to produce evidence contradicting appellees' evidence that he received his property and often refused proffered exercise opportunities.1  We affirm in part and reverse in part, and remand for proceedings consistent with this disposition.

BACKGROUND

On January 17, 1988, appellant filed a complaint alleging that appellees, inter alia: had lost his property and ignored his related grievance; since December 10, 1987, had released him from his cell only three hours weekly for exercise, showers, telephone use, and cell cleaning;2  and were denying him general population clothing, thus preventing outdoor exercise.3 

On March 10, 1988, the district court issued an Order (entered March 14, 1988) instructing appellant to strike, as not rising to the level of constitutional violations, all allegations except, inter alia, that appellees had misplaced his property and never answered his grievance. The court warned that, if appellant failed to file his amended complaint by March 28, 1988, it would strike all but five claims, leaving the property claim, but not the exercise claim.

Appellant did not file his amended complaint by the deadline. On April 7, 1988, appellees filed their Motion to Strike all but the five claims and Motion to Dismiss the five claims pursuant to Fed. R. Civ. P. 12 or, alternatively, Rule 56. In support, they filed affidavits of Deputy Wardens John Hallahan and Dorothy Vigil attesting, inter alia, that: as a result of this suit, Hallahan had discovered that the prison had neglected to process the property grievance and had begun processing it; and appellant has been permitted to retain his general population clothing. Appended to the affidavits were, inter alia, appellant's August 18, 1987 grievance complaining of disappearance of various property (Attachment 6 to Hallahan's Affidavit), and an exercise log.4  The log revealed that, of the forty-three days covered, appellant exercised in the indoor "run" almost daily, but never exercised in the outdoor "yard" because he either did not request the yard or chose to stay indoors on fourteen days and it was closed on five days.5  The log was silent as to why Rion did not use the yard on the other twenty-four days covered. Vigil's affidavit did not refer to the exercise log.

The court ordered appellant to reply to the Motions to Strike and Dismiss by May 12, 1988, and, on April 12, 1988, contrary to its March 10 Order, the court struck the property claim but retained the exercise claim. The Motions to Strike and Dismiss addressed only the claims the March 10 Order had indicated would be retained, and therefore did not address the exercise claim.

On April 27, 1988, appellant filed his "Response to Defendants [sic] motion to strike and dismiss" requesting a stay of the motion pending discovery. He contemplated seeking clear copies of the property grievance and exercise log so as generally to disprove appellees' contentions, and he intended to serve interrogatories that "should shed light on further facts and circumstances that would support plaintiffs [sic] opposition to the defendants [sic] 'motion to strike.' " That day he also filed a Motion for copies requesting that the court provide him and appellees with copies of his various motions and his Response to the Motions to Strike and Dismiss.

On September 9, 1988, the court filed its Order granting summary judgment as to both the property and exercise claims.

STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). We review de novo a grant of summary judgment, viewing the evidence and the inferences therefrom in the manner most favorable to the nonmoving party. Franklin, 745 F.2d at 1235.

DISCUSSION

On appeal, appellant contends the district court erred in granting summary judgment because: (1) the court failed to advise appellant that it intended to convert the Motion to Dismiss into one for summary judgment; (2) the court failed to advise appellant that he must produce evidence to ward off summary judgment; (3) appellees' evidence lacked foundation; (4) genuine material issues of fact remain regarding appellant's "lost" property and inadequate exercise claims; (5) the court failed to rule on appellant's motion seeking distribution of copies of his motions to appellees and a stay pending discovery, before granting summary judgment; and (6) the Motion lacked a fact statement in violation of a local district court rule (requiring that a summary judgment motion include a fact statement).

1. Failure to notify of conversion to summary judgment motion

The district court erred in failing to notify appellant of the possibility of summary judgment as to the exercise count, but not as to the property count.

Before a court may treat a Fed. R. Civ. P. 12(b) (6) motion accompanied by evidence as a Rule 56 motion for summary judgment and grant the latter, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b) (6). In general, before a court may so convert a Rule 12(b) (6) motion, the nonmoving party must be sufficiently aware of the conversion and receive a reasonable opportunity to present responsive evidence. Garaux v. Pulley, 739 F.2d 437, 438 (9th Cir. 1984). Where the nonmoving party is a prisoner appearing pro se, "the notice requirements of Rule 56(c) must be strictly adhered to "when such conversion is to occur." Id. at 439.

Contrary to appellant's view, the district court's failure to advise him of intent to treat the Motion to Dismiss as one for summary judgment as to the property claim did not violate the notice requirements of Rule 56(c). Because the Motion to Dismiss explicitly alternatively sought summary judgment on the property claim, appellant received adequate notice that summary judgment was possible. Thus, Garaux is distinguishable. There, in light of the court's sua sponte conversion of a motion to dismiss, the pro se entirely lacked notice of the possibility of summary judgment.

However, this analysis does not apply to the exercise claim. Because the Motion to Dismiss did not seek dismissal of or summary judgment on the exercise claim, it could not supply notice of the possibility of summary judgment.6  Accordingly, the court's failure to notify appellant of the conversion constitutes reversible error on the exercise claim.

2. Failure to advise of evidence requirements of summary judgment

A district court must advise a prisoner appearing pro se that under Rule 56(c) he must submit responsive evidence to stave off summary judgment. Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, the district court erred in failing to advise appellant of the requirements of summary judgment as required by Klingele.

Nevertheless, as to the property claim, no prejudice warranting remand occurred because the claim fails as a matter of law. Appellant cites, and thus accepts the accuracy of appellee Deputy Warden Hallahan's affidavit testimony that as a result of the instant suit, he had discovered that the prison had neglected to process appellant's property grievance and he had initiated proper handling of the grievance. Appellant has never suggested and it does not appear that the prison's grievance procedure fails to provide due process. Accordingly, even if appellant were to prove his contentions, he could not establish deprivation of property without due process, i.e., a constitutional violation, as required for a cognizable property claim under 42 U.S.C. § 1983. See Parratt v. Taylor, 451 U.S. 527, 537, 543-44 (1981) (prisoner was not deprived of property without due process where state tort law remedy could have fully compensated him for loss); Ausley v. Mitchell, 748 F.2d 224, 225 (4th Cir. 1984) (under "straightforward application" of Parratt, no deprivation of property without due process where prison grievance remedy exists); Phelps v. Anderson, 700 F.2d 147, 149 (4th Cir. 1983) (same). Where, as here, a section 1983 claim does not conceivably state a cause of action, failure to advise the prisoner pro se litigant of the summary judgment evidence requirement does not require remand. See Curry v. Brown, 440 F.2d 259, 261-62 (D.C. Cir. 1971) (cited by Garaux, 739 F.2d at 440); Winfrey v. Brewer, 570 F.2d 761, 764 (8th Cir. 1978) (also cited by Garaux, 739 F.2d at 440).7 

However, as appellant urges, the court's failure to advise him of the requirements of the summary judgment rule constitutes reversible error as to the exercise claim. Appellant's allegations of inadequate outdoor exercise might conceivably, with elaboration of the total circumstances of his incarceration on remand, state a cause of action under section 1983. See Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979) (deprivation of outdoor exercise over period of years violates eighth amendment where prisoners in continuous segregation, permitted little out-of-cell movement or corridor exercise, had minimal contact with other people, and lived in an atmosphere of fear and degradation without rehabilitative programs); Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir. 1984) (in review of preliminary injunction, findings that prisoners denied outside exercise while incarcerated for over one year in conditions similar to those in Spain raised substantial constitutional question).

Because we do not rely on the inventory sheet in affirming summary judgment as to the property claim, we need not consider whether any lack of authentication of the sheet was reversible error.8  Also, in light of our decision as to the exercise claim, we need not address whether any lack of authentication of the exercise log was reversible error.9 

4. Whether genuine issues of material fact remain

As we indicate above, no genuine issue of material fact remains as to the property claim. Even if appellant proved his contentions, he would not state a due process violation. Because appellant never had an opportunity to submit responsive evidence as to the exercise claim, it is premature to consider whether genuine issues exist as to this claim.10 

5. Failure to rule on motions for stay pending discovery and for copies

As appellant's property loss allegation does not state a constitutional violation, discovery would not have yielded evidence precluding summary judgment. Therefore, as to the property claim, no prejudice arose from the court's failure to rule on appellant's motion for a stay pending discovery. See Klingele, 849 F.2d at 412 (summary judgment appropriate where discovery could not elicit evidence raising genuine issues of material fact). In light of our decision as to the exercise claim, we need not address whether the court erred in failing to rule on the motion for discovery as it affected this claim.11 

The court's failure to provide copies of appellant's papers to appellees did not prejudice appellant, and hence did not constitute reversible error. Appellant filed his amended complaint after appellees had filed their motions to strike and dismiss.

As to the property claim, the district court was within its broad discretion in its application of Local Rule 11(i)1 of the United States District Court of Arizona (requiring that a summary judgment motion include a fact statement). See United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979) (Ninth Circuit rarely questions district court's exercise of discretion in applying local rule). Although the Motion to Dismiss did not contain a separate fact section, it and the affidavits identified the facts on which appellees relied. Accordingly, appellant was not prejudiced by the lack of a fact statement. Again, in light of our decision as to the exercise claim, we need not consider this issue as to it.

Accordingly, we affirm summary judgment on the property claim, reverse it on the exercise claim, and remand for further proceedings consistent with this disposition.

AFFIRMED in part, REVERSED in part, and REMANDED.12 

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3

 1

The Order appealed also granted summary judgment as to appellant's many other section 1983 claims, and denied appellant's Motion for Reconsideration of the court's Order striking all but five allegations in his complaint and Motion for Leave to File Supplemental/Amended Complaint. However, the only grounds for appeal urged by appellant in his briefs are those discussed above

 2

The three hours were augmented with time out for a one-hour visit and law library use

 3

At paragraph 9 of his weekly cell release complaint, he states that he has "been denied the clothing which is issued to general population inmates. Because of this I've been unable to go outside for recreation...." At paragraph 15, he states that "because I don't have adequate clothing and because it is dark when I'm let out of my cell I can't go outside to use the [exercise] pen."

 4

The log covered the period August 26, 1987, through March 19, 1988, in which appellant was absent from the prison to attend court September 30 through December 12, 1987

 5

The grievance complained of disappearance of, inter alia, a radio and necklace. These items were not listed on the August 23, 1987 inventory. Although we thus disagree with the district court that appellant's property was restored by the latter date, we nevertheless affirm summary judgment on the property claim on other grounds, as discussed below

 6

Presumably, appellees in the Motion to Dismiss did not address the exercise claim because they anticipated that the court would strike that claim as contemplated by the March 10, 1988 Order. Nevertheless, even if inadvertently done, the court preserved the exercise claim. We note that, also contrary to the Order, the court struck the property claim. We consider it, however, because the Order led appellant to believe that the claim would survive even if appellant did not timely file an amended complaint. Also, the court in fact proceeded as if it had preserved this claim

 7

Harris v. Pate, 440 F.2d 315 (7th Cir. 1971), cited by Garaux, 739 F.2d at 440, does not dissuade us from our view that this harmless error exception to Klingele exists. In Harris, the Seventh Circuit states that a district court may not deny a plaintiff the right to respond to a summary judgment motion merely because its claim is frivolous. 440 F.2d at 319. However, for this proposition, Harris cites Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960). In Cohen, we emphasized that the complaint stated a cognizable cause of action in holding that the district court's failure to allow the nonmovant to submit evidence on a converted 12(b) (6) motion was reversible error

 8

Further, appellant waived his objection on this ground by failing to raise it below. See Allen v. Scribner, 812 F.2d 426, 435 n. 18 (9th Cir. 1987)

 9

However, we note that the affidavit to which the log was attached did not even refer to it, much less attest to the facts stated in Fed. R. Civ. P. 44(a) (1), and therefore did not comply with Rule 56(e) and was an improper basis for summary judgment. See United States v. Childs, 429 F.2d 601-02 (9th Cir. 1970)

 10

At this point, genuine issues appear to exist, in particular as to the reasons appellant never exercised outdoors (in the "yard"). Even if authenticated, the log indicates that appellant did not use the yard because it was closed on five days, and because he did not request it or chose to stay indoors on fourteen days, but the log is silent as to why appellant did not use the yard on the other twenty-four days recorded. Thus, contrary to appellees, and the district court's view, it does not show that appellant regularly refused proffered use of the yard. However, the affidavit testimony that appellant was allowed to keep his general population clothing does tend to rebut appellant's allegation in paragraph 9 of his complaint that he could not exercise outdoors because he lacked the warm clothing available to general population prisoners. Any renewed summary judgment effort on remand should address such issues

 11

On remand, appellant may again seek a stay pending discovery of any new summary judgment motion that appellees may bring. We note that the party seeking thus to stay summary judgment bears the burden of showing what material facts discovery would produce that would preclude summary judgment. See Klingele, 849 F.2d at 412

 12

The parties are to bear their own costs on appeal, and Rion's motion for sanctions is denied