Timothy Barry v. T. Felker

MEMORANDUM

Timothy Demond Barry, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging Eighth Amendment violations in connection with prison officials ordering him to kneel on the hot asphalt of the prison yard. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004), and we vacate and remand.

The record does not indicate that Barry received notice of the requirements to defeat summary judgment. See Rand v. Rowland, 154 F.3d 952, 960 (9th Cir.1998) (en banc) (pro se prisoners must be provided plain language notice of the requirements to oppose summary judgment, of their right to file counter-affidavits or other evidentiary material, that their failure to do so may result in summary judgment against them, and that loss on summary judgment terminates the litigation); see also Woods v. Carey, 684 F.3d 934, 935 (9th Cir.2012) (Rand notice must be served concurrently with motion for summary judgment “so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose”). Further, the error was…