Opinion
Because the panel unanimously finds this case suitable for decision without oral argument, Dunlap's request for oral argument is denied. See Fed. R.App. P. 34(a).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding.
Before CANBY, O'SCANNLAIN and WARDLAW, Circuit Judges.
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.
Timothy Allan Dunlap, an Idaho state prisoner, appeals pro se the district court's summary judgment in favor of the State of Idaho in his 42 U.S.C. § 1983 action alleging that the conditions of confinement on death row violate his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.1996), and we vacate and remand.
The district court converted defendant's Fed.R.Civ.P. 12(b)(6) motion to dismiss into a summary judgment motion by considering material outside the pleadings. See Fed.R.Civ.P. 12(b); Anderson, 86 F.3d at 934-35.
A review of the record reveals that the district court did not explain to Dunlap that it was converting defendant's motion into a summary judgment motion, and did not give Dunlap sufficient notice of his rights and obligations under Fed.R.Civ.P. 56. See Anderson, 86 F.3d at 935; see also Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir.1998) (en banc) (explaining what information must be included in the notice); id. at appendix "A" (model notice). Accordingly, we vacate and remand.
Each side to bear its own costs on appeal.
VACATED and REMANDED.