David S. Harrison, Plaintiff-appellant, v. Larry A. Burns; Alan Scott Pace, Does 1-25; United Statesof America; James W. Brannigan; R. Scottparkhurst; Jim Allison, Defendants-appellees, 108 F.3d 337 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 108 F.3d 337 (9th Cir. 1997) Submitted Feb. 7, 1997. *Decided Feb. 11, 1997

Before: BEEZER and KOZINSKI, Circuit Judges, and INGRAM,**  District Judge.


Before granting summary judgment against a pro se prisoner litigant, a district court must give even a sophisticated prisoner notice of the requirements of Fed. R. Civ. P. 56(e). See Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988). As the district court admitted its failure to comply with Klingele, the summary judgment in favor of appellee Burns is VACATED. We also VACATE the dismissal with prejudice of appellant's Sixth Amendment claim, but note that, even if appellant prevails at summary judgment, his claim must be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam).

The remainder of the judgment of the district court is AFFIRMED substantially for the reasons stated in that court's orders.1 


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


The Honorable William A. Ingram, Senior United States District Judge for the Northern District of California, sitting by designation


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.R. 36-3


Appellant's motion to file an untimely, oversized reply brief is GRANTED