James D. Maciel, Plaintiff-appellant, v. James H. Gomez, Individually and As Director of Thedepartment of Corrections, State of Ca; Diane Butler,individually and As Chief of Classification Services,sacramento, Ca; Unknown Alexander, Individually and Asclassification Staff Representative, Sacramento, Ca;unknown Becker, Individually and As Classification Staffrepresentative, Sacramento, Ca; Jack R. Reagan,individually and As Chief Inmate Appeals, Sacramento, Ca;r. Munoz, Individually and As Appeals Examiner, Sacramento,ca; Art Calderon, Individually and As Warden of Thecalifornia Rehabilitation Center, Norco, Ca; Mark Lary,individually and As Associate Warden (acting) and Asclassification and Parole Representative for the Californiarehabilitation Center, Norco, Ca; R. Castro, Individuallyand As Associate Warden of the California Rehabilitationcenter, Norco, Ca; N. Law, Individually and As Associatewarden of the California Rehabilitation Center, Norco, Ca;p. Underwood, Individually and As Program Administrator Ofthe California Rehabilitation Center, Norco, Ca; D. Harris,individually and As Program Administrator of the Californiarehabilitation Center, Norco, Ca; Robert Tafolla,individually and As Appeals Coordinator and As Correctionalcounselor Ii of the California Rehabilitation Center, Norco,ca; Carl Owen, Individually and As Correctional Counselorii of the California Rehabilitation Center, Norco, Ca; Paulcook, Individually and As Warden (acting) of the Californiavalley State Prison, Blythe, Ca; R. Green, Individually And(as Plaintiff Believes It to Be) Classification and Parolerepresentative of the California Valley State Prison,blythe, Ca; Unknown Sapiens, Individually and Ascorrectional Counselor of the California Valley Stateprison, Blythe, Ca; Staff Members of the Classificationunit, for the Department of Corrections, Sacremento, Ca, Defendants,andd. Guerrero, Individually and As Lieutenant of Thecalifornia Rehabilitation Center Norco, Ca; E.m. Jimenez,individually and As Lieutenant for Unit Iii of Thecalifornia Rehabilitation Center, Norco, Ca; B. Welch,individually and As Program Lieutenant (acting) of Thecalifornia Rehabilitation Center, Norco Ca, Defendants-appellees.james D. Maciel, Plaintiff-appellant, v. James H. Gomez, Individually and As Director of Thedepartment of Corrections, State of California; R. Castro,individually and As Associate Warden of the Californiarehabilitation Center, Norco, Ca; Di Carlo, Individuallyand As Associate Warden of the California Institution Formen, Chino, Ca; Unknown Green, Mr., Individually and Asappeals Coordinator of the California Institution for Men,chino, Ca; D. Guerrero, Individually and As Appealscoordinator for Men, Chino, Ca; Unknown Round, Mr.,individually and As Correctional Officer of the Californiarehabilitation Center, Norco, Ca; Unknown San Marco, Ms.,individually and As Correctional Officer of the Californiarehabilitation Center, Norco, Ca; Unknown Moser, Mr.,individually and As Lieutenant of the California Institutionof Men, Chino, Ca; F. Manter, Individually and As Sergeantof the California Institution for Men, Chino, Ca; F.ciauri, Individually and As Sergeant of the Californiainstitution for Men, Chino, Ca; Unknown Mckinney,individually and As Sergeant of the California Institutionfor Men, Chino, Ca; F. Venegas, Individually and Ascorrectional Officer of the California Institution for Men,chino, Ca; Unknown Harris, Ms., Individually and Ascorrectional Officer of the California Institution for Men,chino, Ca; H.l. Collins, Individually and As Correctionalofficer of the California Institution for Men, Chino, Ca;a. Ramos, Individually and As Correctional Officer of Thecalifornia Institution for Men, Chino, Ca; B. Blankenship,individually and As Correctional Officer of the Californiainstitution for Men, Chino, Ca; J. Chavez, Individually Andas Correctional Officer of the California Institution Formen, Chino, Ca; F. Holmes, Individually and As Correctionalofficer of the California Institution for Men, Chino, Ca;j. Benthall, Individually and As Correctional Officer o, 97 F.3d 1459 (9th Cir. 1996)
Annotate this CaseBefore: FLETCHER, BRUNETTI, and NOONAN, Circuit Judges.
MEMORANDUM**
In these consolidated appeals, James D. Maciel, a California state prisoner, appeals pro se the district court's summary judgments for defendants in his 42 U.S.C. § 1983 actions alleging retaliatory transfer and deliberate indifference to serious medical needs due to exposure to environmental tobacco smoke ("ETS"). Maciel also appeals the district court's refusal to issue and serve a summons and complaint on a number of defendants.1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). We review for abuse of discretion the district court's dismissal of a complaint as frivolous. Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995) (per curiam).2 We vacate and remand.
Before entering summary judgment, district courts are obligated to advise pro se prisoner litigants that they need to submit responsive evidence to ward off summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996); Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir. 1995) (per curiam); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). A review of the district court record in each appeal reveals that the district court failed to provide Maciel with this notice. Accordingly, we vacate the district court's summary judgments and remand to allow the district court to advise Maciel of the Rule 56 requirements and to give him an opportunity to respond adequately to defendants' motions for summary judgment. See Anderson, 86 F.3d at 934.
The district court required Maciel to prepare a separate statement justifying why a summons and complaint should be issued to each defendant. In each case, the district court found that only a few of the named defendants should be served. In appeal No. 95-55950, the district court never furnished any explanation as to why the remaining defendants should not be served with a summons and complaint. In appeal No. 95-55963, the district court concluded, in the final report and recommendation of the magistrate judge, that Maciel's allegations against the unserved defendants were insufficient to state a constitutional violation.
Prior to dismissing a pro se complaint, the district court is obligated to provide a statement of the complaint's deficiencies and grant a pro se litigant with an opportunity to amend the complaint. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Accordingly, upon remand, the district court in appeal No. 95-55950 should explain the deficiencies of Maciel's complaint as to the unserved defendants and allow Maciel an opportunity to amend his complaint. In appeal No. 95-55963, Maciel should be given an opportunity to amend his complaint as to the unserved defendants to allege facts that would be sufficient to establish a constitutional violation.
On remand, the district court should consider the applicability, if any, of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), to this case.
VACATED and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); and 9th Cir.R. 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 Circuit R. 36-3
The former section 1915(c) was redesignated 1915(d) by the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"). This section states that "the officers of the court shall issue and serve all process" in those cases where the litigant has been granted in forma pauperis status unless the complaint is frivolous. 28 U.S.C. § 1915(d); Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Because the district court refused to issue a summons and complaint as to several defendants, and then entered final judgment after granting defendants' motions for summary judgment, we construe the refusal to issue a summons and complaint as a dismissal of Maciel's complaint as to those defendants. See Jackson, 885 F.2d at 640
The district court dismissed under 28 U.S.C. § 1915(d). The former section 1915(d) was redesignated 1915(e) by the PLRA. The portion of section 1915(d) which allowed for the dismissal of frivolous in forma pauperis complaints is now codified at 28 U.S.C. § 1915(e) (2) (B) (i)
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