Andrew Lopez v. S. Cook

concurring in part and dissenting in part:

I concur entirely in the majority disposition, with one exception: the harmlessness of the Rand error. As I have previously stated, I am not particularly enthused about the Rand/Klingele rule. Rand v. Rowland, 154 F.3d 952, 964 (9th Cir.1998) (en banc) (Thomas, J., concurring); see also Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir.1988). Although I believe providing a Rand-type notice is laudable as a best practice, I believe that, in practice, application of the Rand rule has become overly technical and overly rigid. Nonetheless, it is a rule that binds us, and it is quite restrictive as to the use of harmless error.

The harmless error rule articulated in Rand was confined to “exceptional” cases, id. at 962 , and not “where the harmfulness could not be fully assessed on the record,” id. at 961 . The Rand harmless error inquiry is focused not on the merits of the motion, but on whether “[t]he record, objectively viewed, shows that [the plaintiff] knew and understood the information in the Rand notice before he received it.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir.2013). Placing the burden on the plaintiff to…

FILED

NOT FOR PUBLICATION JUL 17 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW RICK LOPEZ, No. 11-16929

Plaintiff - Appellant, D.C. No. 2:03-cv-01605-KJM-

DAD

v.

S. COOK, Captain; M. GARATE, MEMORANDUM*

Sergeant; R. MCKEAN, C/O; C. ADAMS, Lieutenant; R. JOHNSON; J. HARRISON;

P. STATTI; D. SHAVER; A.

NERGENAH; N. MCCLURE;

VANDERVILLE; J. GILLAM; S.

BABBICH; T. BARTOS; JACKSON; D.

MORTON,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted April 18, 2013 San Francisco, California

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Plaintiff Andrew Lopez alleges that prison officials, in validating him as a

gang member and placing him in the Security Housing Unit, violated his due

process rights and unconstitutionally retaliated against him for his…

MEMORANDUM *

Plaintiff Andrew Lopez alleges that prison officials, in validating him as a gang member and placing him in the Security *764 Housing Unit, violated his due process rights and unconstitutionally retaliated against him for his prison litigation activities. The district court dismissed or granted summary judgment in favor of several defendants, and the remaining causes resulted in a jury verdict in favor of the defendants. We affirm in part, reverse in part, and remand.

The district court did not give timely notice to Lopez as required by Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc), after the defendants filed their motion for summary judgment. See Woods v. Carey, 684 F.3d 934, 940-41 (9th Cir.2012). It is clear from the record, however, that there are no facts that would have permitted Lopez to prevail against additional parties on the motion for summary judgment, because he submitted several declarations on his motion for summary judgment, and the district court considered this material in ruling on the defendants’ summary judgment motion. There was therefore no reversible error in granting summary judgment in favor of those defendants. See id. at 941…