dissenting:

The majority’s refusal to recognize the right of pro se litigants to be adequately informed of their procedural obligations prior to the entry of summary judgment against them rests on several false factual assumptions and on an inaccurate interpretation of the law of this and other circuits. Because I believe that our previous cases recognize the rights of all pro se litigants to the procedural protection of the court, and because I believe that affording such protection serves the interest not only of the litigants but also of the court itself, I respectfully dissent.

The majority opinion creates two classes of indigent litigants, those who are poor and law abiding, and those who are poor and not. It then affords lesser rights and protections to the former. In this respect, the majority’s actions are contrary to the view our circuit has previously expressed. Moreover, its opinion rests on two false factual assumptions: that pro se status is voluntary and that the appellant in this case received adequate notice of his obligation to respond in writing to appellee’s summary judgment motion. I address each assumption in turn.

The majority portrays a litigant’s pro se status as the product of choice, whereas such status is most often the result of necessity. The majority equates a litigant’s so-called “choice” to appear pro se with other litigants’ choice of counsel. The comparison ignores the economic reality *1368 that lies behind most pro se appearances. Given the disparity in legal skills and knowledge that exists between a layman and a lawyer, few litigants will “choose” to prosecute or defend a suit without representation if they are able to hire a lawyer.

Contrary to the majority opinion, appellant did not receive adequate notice of his duty to respond in writing to appellee’s motion for summary judgment. Other circuits have assumed that the filing of a motion for summary judgment does not provide notice of the duty to submit documentary materials, without having explicitly analyzed the language either of Federal Rule of Civil Procedure 56 or of the relevant Local Rules. See, e.g., Moore v. State of Florida, 703 F.2d 516, 520-21 (11th Cir.1983); Lewis v. Faulkner, 689 F.2d 100, 101-02 (7th Cir.1982); Ham v. Smith, 653 F.2d 628, 630-31 (D.C.Cir.1981); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975). Such an analysis merely confirms that assumption, however. The responding affidavit requirement is not set out explicitly in either Fed.R.Civ.P. 56 or in Arizona Local Rules 11(e) and 11(h), but rather must be inferred somewhat obliquely from the language and structure of those rules. Although practicing attorneys can be expected to draw the proper inferences from the language of legal rules, the court can not presume that laymen possess such interpretive skills.

The Seventh Circuit in Lems v. Faulkner, supra, supported its finding that a summary judgment motion in and of itself provides inadequate notice of the affidavit requirement with an analysis of “lay intuition” of civil procedure. Id., 689 F.2d at 102 . A layman expects that the filing of a complaint triggers an answer, after which the trial is conducted. The court refused to impute to pro se litigants “an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature, on affidavits, so that not submitting counter affidavits is the equivalent of not presenting any evidence at trial.” Id. In the present case, not only was appellant not on notice of his obligation to submit counter affidavits, but his inference from the setting of oral argument that he would be entitled to present oral argument if he appeared in court on that date was entirely reasonable. Nothing in the calendering of oral argument suggests the existence of an undisclosed condition precedent. Appellant’s appearance at court on the proper day, prepared to present his case, demonstrated his good faith reliance on the setting of oral argument as notice of the relevant legal procedure.

The majority’s reading of the law is incorrect as well. This circuit recognizes that courts have a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their case due to ignorance of technical procedural requirements. See, e.g., Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir.1984); Borzeka v. Heckler, 739 F.2d 444 , 447 n. 2 (9th Cir.1984); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977); Hansen v. May, 502 F.2d 728, 730 (9th Cir.1974); Dewitt v. Pail, 366 F.2d 682, 685 (9th Cir.1966). We have not restricted that protection to prisoner litigants. To the contrary, we justify the extension to pro se prisoner litigants of greater procedural protection than is afforded to litigants with counsel on the ground not that they are prisoners, but rather that they are unrepresented. Cf. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977) (pleadings in employee’s pro se discrimination suit must be viewed under a less stringent standard than if drafted by lawyers) with Hansen v. May, 502 F.2d 728, 730 (9th Cir.1974) (habeas corpus suit) (“Pleadings drafted by laymen, proceeding in propria persona, are to be interpreted by the application of less rigid standards than those applicable to formal documents prepared by lawyers.”). See also, Borzeka v. Heckler, 739 F.2d 444 , 447 n. 2 (9th Cir.1984) (appeal from termination of disability benefits) (“We are generally more solicitous of the rights of pro se litigants, particularly when technical jurisdictional requirements are involved.”).

We already require a court to advise a pro se litigant of its intention to convert *1369 sua sponte a motion to dismiss into a summary judgment motion. Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir.1984). We emphasized in Garaux that “[district courts must take care to insure that pro se litigants are provided with proper notice regarding the complex procedural issues involved in summary judgment proceedings.” Id., 739 F.2d at 439. The need to provide pro se litigants with proper notice of summary judgment procedures is just as great when the opposing party moves for summary judgment as when the court sua sponte converts a motion to dismiss into a motion for summary judgment, since a party’s motion for summary judgment does not in and of itself provide notice of the affidavit requirement, and the risk that “enforcing” a “highly technical requirement[ ] ... might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits,” id., is identical in both procedures.

The reasoning of Garaux compels us to acknowledge a pro se litigant’s right to effective notice of summary judgment procedures when the opposing party moves for summary judgment. The majority attempts unsuccessfully to distinguish Garaux on the ground that we there required notice only “of what the motion now is,” whereas appellant asks us to require notice of “what the motion must mean,” supra, at 1365, (emphasis in original). The distinction is artificial. In Garaux , we required that a pro se plaintiff receive “specific notice, and a fair opportunity to respond,” id., 739 F.2d at 440, in order to insure that such plaintiffs do not inadvertently forfeit their right to a judicial hearing. That purpose would be thwarted if the district court merely labeled the summary judgment motion as such. As the Seventh Circuit noted in Lewis v. Faulkner, 689 F.2d at 102 , “[a] reasonable opportunity to respond [to a motion for summary judgment] presupposes notice. Mere time is not enough, if knowledge of the consequences of not making use of it is wanting.” Implicit in Garaux’s notice requirement, therefore, is a requirement that the court instruct a pro se litigant on the consequences of a summary judgment motion.

Other circuits have recognized that a pro se litigant is entitled to notice of the consequences of failure to submit evidentiary material in response to a motion for summary judgment. See, e.g., Roseboro v. Garrison, supra, Moore v. State of Florida, supra, Lewis v. Faulkner, supra, Ham v. Smith, supra. Although the litigants in these cases were all prisoners, the holdings are not strictly confined to prisoner litigants, with the possible exception of the D.C. Circuit. The Fourth Circuit in Roseboro framed its notice rule in terms of all “pro se plaintiff[s].” Roseboro, 528 F.2d at 310 . The Seventh Circuit in Lewis discussed summary judgment procedure in terms of general “lay intuition.” Lewis, 689 F.2d at 102 . The Eleventh Circuit in Moore cited as “controlling” precedent a case requiring that a nonprisoner litigant be notified of the duty under a local rule to respond to a motion to dismiss. Moore, 703 F.2d at 520 (citing Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir.1982)). Moore supported its ruling with another nonprisoner case from the Fifth Circuit requiring the district court to afford a pro se civil rights litigant a meaningful opportunity to remedy defects in summary judgment materials. Id. (citing Barker v. Norman, 651 F.2d 1107, 1129 (5th Cir.1981)).

The majority’s fear that the impartiality of the district court would be compromised were it to notify, or require notification to, pro se litigants of the written response requirements of Fed.R.Civ.P. 56 is wholly without merit. A court may legitimately assume that the attorneys who appear before it have been trained in legal procedure, and may just as legitimately assume that lay litigante have not. Courts, no less than the parties to a dispute, have an interest in the quality of justice. In assuring that notice is given a pro se litigant of the requirements of summary procedure, the court merely redresses a categorical disparity between the parties’ abilities to obtain a just resolution to their dispute. The court does not thereby “becom[e] a player in the adversary process,” supra, at 1366, but *1370 rather ensures that the adversary process functions properly. “Summary judgment is not a catch penny contrivance to take unwary litigants into its foils and deprive them of a fair trial.” Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940) (quoted in Barker v. Norman, 651 F.2d at 1129 n. 26).

The majority’s concern that a notice requirement would “invite an undesirable, open-ended participation by the court in the summary judgment process,” supra, at 1365, is also without merit. Other circuits have trusted district courts to evaluate what form of notice is proper in light of a pro se litigant’s capacities. See, e.g., Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.Cir.1968) (“[B]efore entering a summary judgment against [a pro se litigant], the District Court, as a bare minimum, should [provide] him with fair notice of the requirements of the summary judgment rule. We stress the need for a form of notice sufficiently understandable to one in [the pro se litigant’s] circumstances fairly to apprise him of what is required.”) (quoted in Barker v. Norman, 651 F.2d at 1129 n. 26). See also Roseboro v. Garrison, 528 F.2d at 310 (the pro se litigant should “be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.”) This circuit has no reason not to likewise trust the courts below to exercise their discretion in this area appropriately.

Because I believe that both the law of this circuit and the interests of justice require that pro se litigants be notified of their procedural obligations under Rule 56, I respectfully dissent from Part I of the majority’s opinion.