Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

MEMORANDUM^** 

Larry Howard, an Arizona state prisoner, appeals pro se the district court's order granting summary judgment against him in his 42 U.S.C. § 1983 action for failure to serve and file a response to defendants' motion for summary judgment pursuant to Arizona District Court Local Rule 11(i). We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand.

Arizona District Court Local Rule 11(i) provides in pertinent part, if after either party files a motion, "the opposing party does not serve and file the required answering memorandum ... such noncompliance may be deemed a consent to the denial or granting of the motion and the court may dispose of the motion summarily." D. Ariz. R. 11(i).

Howard contends, for the first time on appeal, that the district court's grant of summary judgment was improper because prison officials failed to deliver his timely response to defendants' motion for summary judgment.

Although, as a general rule, we will not consider an issue raised for the first time on appeal, we may do so in exceptional circumstances. See Bolker v. CIR, 760 F.2d 1039, 1042 (9th Cir. 1985) (citations omitted) (exception applies where review is necessary to prevent a miscarriage of justice). Here, if Arizona prison officials prevented Howard's response from reaching the district court, the grant of summary judgment under Local Rule 11(i) for failure to respond to defendants' motion would be unjust. See id.; see also Howard v. Lewis, 905 F.2d 1318, 1324 (9th Cir. 1990). Accordingly, we remand this matter to the district court for a determination of the cause for Howard's failure to respond to defendants' motion for summary judgment.

VACATED AND REMANDED.