Samuel P. Moore, a Florida prisoner, filed this civil rights action, pro se, alleging that he had been forced by prison authorities to shave his beard in violation of his First Amendment right to the free exercise of religion, and in violation of the Eighth Amendment prohibition of cruel and unusual punishment. He appeals from the trial court's grant of a summary judgment in favor of the defendants.
During his confinement at Union Correctional Institution and Zephyrhills Correctional Institution ("Zephyrhills"), Moore apparently suffered from a skin condition which was aggravated by shaving. From time to time he was issued a doctor's pass excusing him from shaving.
Soon after the denial of his motion, Moore filed a document styled "Motion to Reconsider Order or in the Alternative, Motion for Leave to Take an Interlocutory Appeal In Forma Pauperis." In this motion, he raised as a second ground for relief his First Amendment right to the free exercise of religion; as a Sunni Moslem plaintiff claimed the right to grow a beard as required by his religion.
In November of 1980, approximately eight months after Moore filed his motion to reconsider, the defendants filed their motion for summary judgment. According to an affidavit accompanying this motion, the medical pass issued to Moore did not allow him to grow a beard, but rather allowed him to use either clippers or shaving powder in lieu of a razor. At the time of the events in question, Moore had a one-inch growth of beard, in violation of the prison's Policy and Procedure Directive 4.07.04. Record at 30-31.
On February 5, 1981, the trial court granted the defendants' motion for summary judgment. In doing so, the court relied on Moore's failure to respond by affidavit to the defendants' motion for summary judgment. Accordingly, the court ruled that as to the cruel and unusual punishment claim the defendants had not required Moore to shave his beard, but had only instructed him to trim it with clippers. Further, the court did not pass upon the merits of Moore's First Amendment claim, apparently because he had not properly amended his original complaint.
On this appeal, Moore makes the following contentions: (1) that he was denied adequate notice under Rule 56(c) that the defendants' motion for summary judgment would be heard by the district court on or after a certain date; (2) that he was not notified of the need to present supporting affidavits; (3) that the district court's finding that the defendants had not forced Moore to shave his beard was clearly erroneous;
II. RULE 56 NOTICE AND HEARING
Rule 56(c) of the Federal Rules of Civil Procedure states in part:
The rule thus mandates a hearing on the summary judgment motion, and at least 10 days notice of that hearing. Further, Rule 56(e) provides that when the motion is supported by affidavits and other evidentiary materials, the adverse party "may not rest upon the mere allegations or denials of his pleading," but must respond with affidavits or materials of his own. As stated earlier, the defendants filed their motion accompanied by affidavit. Although Moore filed his own motion for summary judgment, he did not respond to defendants' motion with the appropriate counter-affidavits. Moore argues that summary judgment should not have been granted because he had not been given the required notice and a hearing.
It is now well established that Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing dictates of Rule 56. See Barker v. Norman, 651 F.2d 1107, 1119 (5th Cir.1981); Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387, 391-92 (5th Cir.1980); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976).
Generally, "the 10-day notice requirement of Rule 56(c) is strictly enforced." Herron v. Beck, 693 F.2d 125, 126 (11th Cir.1982). However, a recent panel of the former Fifth Circuit adopted what might be referred to as a "constructive notice" theory of Rule 56. In Howell v. Tanner, 650 F.2d 610 (5th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 1777, 72 L.Ed.2d 178 (1982), the appellant attacked the granting of a summary judgment against him on the ground that he had not been notified of the date upon which a decision on the motion would be forthcoming. The court affirmed the judgment, however, on the basis of a local rule "which defined a 10-day period within which all materials must be filed in order to receive consideration from the court." Id. at 614.
Thus, defendants argue, relying upon Howell, that the local rule was sufficient to put Moore on notice that the motion for summary judgment would be taken under advisement within 10 days. We disagree, finding the Howell case distinguishable because it did not involve a pro se litigant. Pro se prison inmates, with limited access to legal materials, occupy a position significantly different from that occupied by litigants represented by counsel. See Herron v. Beck, 693 F.2d at 127; Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982); Barker v. Norman, 651 F.2d 1107, 1128-29 & n. 26 (5th Cir.1981).
In Mitchell v. Inman, 682 F.2d 886 (11th Cir.1982), this court referred to a local rule requiring a timely response to a motion to dismiss, and held "that it should not serve as a basis for dismissing a pro se civil rights complaint where, as here, there is nothing to indicate plaintiff was ever made aware of it prior to dismissal." Id. at 887. Finding no reason to distinguish between a local rule requiring a timely response to a motion to dismiss and a local rule requiring timely opposition to a motion for a summary judgment, we conclude that our recent Mitchell v. Inman decision is controlling. We hold that the instant local rule does not constitute constructive notice to Moore, a pro se prison inmate, that the motion for summary judgment would be taken under advisement within 10 days.
Our conclusion is supported by the well established rule in this circuit that the 10-day notice requirement of Rule 56(c) is strictly enforced for all litigants, and also by the rule that "a court should be particularly careful to ensure proper notice to a pro se litigant." Herron v. Beck, 693 F.2d at 127. See also Barker v. Norman, 651 F.2d 1107, 1129 (5th Cir.1981) (holding that the district court abused its discretion, under the particular circumstances in that case, in failing to afford a pro se civil rights litigant a meaningful opportunity to remedy the defects in his summary judgment materials).
Our conclusion is also consistent with cases from other circuits. In Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir.1968), the court held:
Id. at 1094; accord Ham v. Smith, 653 F.2d 628, 629, 630 (D.C.Cir.1981). In Davis v. Zahradnick, 600 F.2d 458 (4th Cir.1979), the Fourth Circuit held that:
Id. at 460; accord Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975). In Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), the Seventh Circuit held:
Id. at 102; accord Muhammad v. Rowe, 638 F.2d 693, 696 (7th Cir.1981).
Accordingly, we hold that the instant local rule was not constructive notice to Moore that defendant's summary judgment motion would be taken under advisement as of a certain time. Since there is no other indication in the record that Moore received such notice, the district court's grant of summary judgment in favor of the defendants must be reversed, and on remand Moore must be given the required 10-day notice and an opportunity to respond to the motion with appropriate affidavits and otherwise.
III. THE FIRST AMENDMENT CLAIM
In his original complaint and motion for restraining order, Moore referred only to the alleged infliction of cruel and unusual punishment. Record at 10. After the temporary restraining order was denied, Moore filed his motion to reconsider. In this motion, he referred specifically to his religious right, as a Sunni Moslem, to grow a beard. See note 4, supra. At no time did the defendants attempt to rebut Moore's factual contention as to his religious right. Rather, the defendants moved to strike the religious claim on the basis that it had not been alleged in either the original complaint or a properly amended complaint. Likewise, the trial court's order granting summary judgment seems not to have addressed Moore's religious claim. See note 8, supra.
The pleadings of pro se litigants are generally subject to less stringent rules. "The prisoner's pro se complaint, however inartfully drafted, must be held to less rigorous standards than the formal pleadings prepared by lawyers." Woodall v. Foti, 648 F.2d 268, 271 (5th Cir.1981); see Richardson v. Fleming, 651 F.2d 366, 368 (5th Cir.1981). At the time Moore filed his motion to reconsider, defendants had yet to file a responsive pleading. Thus, the motion to reconsider was filed during that period in which a litigant is entitled to amend his pleading once "as a matter of course." Fed.R.Civ.P. 15(a).
REVERSED AND REMANDED.
Record at 9.
Record at 17. There was absolutely no reference to a First Amendment claim in Moore's original complaint.
Record at 31 (Exhibit B).
Record at 49.
650 F.2d at 614. The court held that the litigant's Rule 56 interests were adequately protected by this local rule.
Brief for Appellees, at 15-16; Brief for Appellant, at 19.