95 F. 3d 1157 - Johnson v. E Martin
95 F3d 1157 Johnson v. E Martin
95 F.3d 1157
Michael JOHNSON, Plaintiff-Appellant,
v.
E. MARTIN; James Williams; J. Anaya; F. Foulk; R.A.
Ballard, Corrections Officers at Calipatria State
Prison, Defendants-Appellees.
No. 95-55497.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 12, 1996.*
Decided Aug. 23, 1996.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: BROWNING, SCHROEDER and RYMER, Circuit Judges.
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MEMORANDUM**
Michael Johnson, a California state prisoner, appeals pro se the district court's summary judgment for defendant prison officials in his 42 U.S.C. § 1983 action. Johnson contends that the district court erred because the defendants: (1) were deliberately indifferent to Johnson by permitting another prisoner to initiate a fight with him, and (2) acted maliciously and sadistically by shooting Johnson in the right buttock during the fight. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), and vacate and remand.
"District courts are obligated to advise prisoner pro per litigants of [Fed.R.Civ.P.] 56 requirements." Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988); see also Arreola v. Mangaong, 65 F.3d 801, 802 (9th Cir.1995) (per curiam) (court must advise plaintiff of Klingele, not enough if defendants advise plaintiff). A review of the district court record reveals that the district court never advised Johnson that, under Fed.R.Civ.P. 56(e), he had to submit responsive evidence to survive defendants' motion for summary judgment. Accordingly, we vacate the district court's summary judgment and remand with instructions to the district court to advise Johnson of the Rule 56 requirements. See Klingele, 849 F.2d at 411-12; Arreola, 65 F.3d at 802.
Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), to this appeal.
VACATED and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Johnson's request for oral argument is denied
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