878 F2d 1438 Ferdik v. So Richardson

878 F.2d 1438

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael Henry FERDIK, Plaintiff-Appellant,
v.
Bill S.O. RICHARDSON, Former Sheriff, Defendant,
and
Joe Bonzelet, Sheriff, of Mojave County, Jerry Holt, Jim
Schultz, Jack Rose, Defendants-Appellees.

No. 88-2660.

United States Court of Appeals, Ninth Circuit.

Submitted May 26, 1989.*
Decided July 7, 1989.

William P. Copple, Senior District Judge, Presiding.

Before BROWNING, FARRIS, and WILLIAM A. NORRIS, Circuit Judges.


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1

MEMORANDUM**

2

Michael Henry Ferdik ("Ferdik") contends on appeal that the district court abused its discretion in treating Bonzelet's motion as a motion for summary judgment.

3

Under Rule 12(c), when the district court has before it a motion for judgment on the pleadings, and matters outside the pleadings have been presented and are not excluded by the court, the court must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(c). The motion must then be disposed of as provided in Rule 56 and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id.

4

Similarly, when matters outside the pleadings have been presented and considered, a district court must treat a motion to dismiss a complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) as a motion for summary judgment. This court held in Garaux v. Pulley, 739 F.2d 437 (9th Cir.1984), that when the district court treats a motion to dismiss a pro se litigant's complaint as a motion for summary judgment, the court must notify the plaintiff of the change in status of the motion, and the plaintiff's right to respond. Garaux, 739 F.2d at 440. This holding was based on the final clause of Rule 12(b) which states that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See id. at 438. Because this clause is identical to the final clause of Rule 12(c), it follows that the rule in Garaux applies when a court decides to treat a motion for a judgment on the pleadings as a motion for summary judgment. See Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir.1983) (per curiam) (Rule 12(c) motion may only be treated as motion for summary judgment if all parties have adequate notice).

5

Furthermore, before dismissing a pro se prisoner's complaint based on a motion for summary judgment, the district court must provide the prisoner with fair notice of the requirements of the summary judgment rule. Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir.1988).

6

The district court's dismissal order stated that the court was treating Bonzelet's motion as a motion for summary judgment and granting it. The court granted the motion without explanation and without warning Ferdik that the motion would be treated as a summary judgment motion or notifying him of the requirements of Rule 56. Accordingly, the judgment is REVERSED and the case is REMANDED to give Ferdik specific notice and a fair opportunity to respond to the summary judgment motion. See Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir.1988); Garaux v. Pulley, 739 F.2d 437, 440 (9th Cir.1984).

*

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


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**

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 Rule 36-3