Timothy Demond Barry v. T. Felker;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY DEMOND BARRY,
Plaintiff - Appellant,
v.
T. FELKER; et al.,
Defendants - Appellees.
No. 11-17817
D.C. No. 2:08-cv-01722-PMP-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Philip M. Pro, District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
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
FILED
OCT 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-17817 2
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 not harmless because
it is not clear from the record that there are no facts that would permit Barry to
prevail. See Woods, 684 F.3d at 941 (failure to provide adequate notice “is a
ground for reversal unless it is clear from the record that there are no facts that
would permit the inmate to prevail”).
Each party shall bear its own costs on appeal.
VACATED and REMANDED.

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