Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1986)

MEMORANDUM^** 

Appellant filed a section 1983 action alleging deprivation of his due process rights as the result of the alleged failure of prison officials to comply with a prison rule. The district court granted defendant's motion to dismiss.

The prison rule in question provides that prison officials must notify an inmate accused of a violation of a prison regulation "within one week of the discovery of the violation or within one week of completion of investigation." In his complaint appellant alleged only that the prison officials failed to notify him within one week of the discovery of the violation. He contended that the notice was given nine days after the violation occurred. According to appellant's complaint, on December 7, 1986, prison officials told him orally that he would be charged with possession of contraband but no written notice was given until December 16. In their motion to dismiss defendants quote the pertinent provision of the prison rules and attach as an exhibit a memorandum dated December 10, 1986 setting forth the results of a test conducted that day. The results showed that a cigarette confiscated from plaintiff on December 7 contained marijuana. The district court held that the prison officials had complied with the regulation by giving notice within seven days of the completion of the investigation and that, accordingly, no deprivation of due process had occurred.

It is apparent from appellant's brief that he simply misreads the regulation. His only claim on appeal is that the notice was given nine days after the incident occurred and that notice must be given seven days after the incident. Although the regulation is attached to his brief, appellant completely ignores the alternative portion of that regulation which permits prison officials to give notice within seven days after completion of the investigation. Appellant does not deny that notice was given within the latter period. Accordingly, there is no merit whatsoever to plaintiff's complaint.

There is however a procedural difficulty with the case. In granting the motion to dismiss the district judge relied on the exhibits to defendant's motion. Under Fed. R. Civ. P. 12(b) (6) if a court intends to rely on factual matters attached to the motion it must treat the motion as one for summary judgment. In the case of pro per prisoners the court must then notify the plaintiff of the change in status of the motion and the prisoner's right to respond. Garaux v. Pulley, 739 F.2d 437 (9th Cir. 1984). Here the district court failed to give the required notice. Ordinarily we would reverse and give appellant an opportunity to respond to the material attached to the motion. In this case, however, appellant in his brief describes the nature of the December 7 incident fully. His description in no way varies from that contained in the defendant's exhibit. Similarly, appellant attaches the regulation to his brief. It is the same as the regulation attached to defendant's motion. The only item not specifically acknowledged by appellant is the fact that the investigation was concluded on December 10. However, appellant does not in any way dispute the accuracy of the investigative report or suggest that it was not completed on the date shown on its face. Nor does appellant suggest that he would introduce any evidence with respect to the date of the investigative report or any other matter were he given the opportunity to do so. To the contrary, as we have noted, appellant presents the issue as a simple matter of law--whether he is entitled to notice within seven days of the act which formed the basis of the alleged violation or whether later notice is permissible under the regulation. The answer to this question is clear. The notice may be served seven days after completion of the investigation. Under appellant's theory of his case no conceivable purpose would be served by remanding in order to permit him to respond further to defendant's motion.

For the above reasons, we affirm the district court. Nevertheless, we urge the court in all future cases to follow the procedure required by Fed. R. Civ. P. 12(b) (6) and Garaux v. Pulley, 739 F.2d 437 (9th Cir. 1984).

AFFIRMED.