FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALVADOR SOLIS, 

Plaintiff-Appellant,

v.

COUNTY OF LOS ANGELES; LOS

No. 05-56637 ANGELES SHERIFF’S DEPARTMENT;

VARGAS, Los Angeles County D.C. No.  Sheriff, CV-01-06425-RGK

Defendants, OPINION

and

MIGUEL BELTRAN, Los Angeles

County Sheriff,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted

June 13, 2007—Pasadena, California

Filed January 29, 2008

Before: Dorothy W. Nelson, Stephen Reinhardt, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Reinhardt

1433
COUNSEL

Michael H. Dore, Leila C. Orr, and Mark E. Weber, Gibson,

Dunn & Crutcher LLP, Los Angeles, California, for the

plaintiff-appellant. 

Ali Reza Sabouri, Office of the County Counsel, Los Angeles,

California, for defendant-appellee Miguel Beltran.

OPINION

REINHARDT, Circuit Judge: 

Plaintiff Salvador Solis (“Solis”), a former inmate at the

Los Angeles County jail, brought this pro se1 civil action

alleging constitutional violations stemming from Solis’s

1Pro bono counsel was appointed to represent Solis on appeal. 

COUNTY OF LOS ANGELES v. BELTRAN 1437
transfer into the jail’s “gang module,” where he was attacked

and injured by three other inmates. Solis appeals the district

court’s verdict, following a bench trial, in favor of defendant

Miguel Beltran, as well as the district court’s grant of summary judgment in favor of the remaining defendants. We

reverse the district court’s grant of summary judgment on the

ground that Solis was not given fair notice of the requirements

and consequences of a summary judgment motion, as required

by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).

We also reverse the verdict in favor of Beltran because the

district court erred in denying Solis a jury trial, and the error

was not harmless. 

I. Background 

Solis is an ex-member of a gang known as the Mexican

Mafia, or “La Eme.” He is currently serving a sentence of life

without parole as a result of his conviction of first-degree

murder. Following his arrest on that charge, Solis was placed

in the Los Angeles County jail. 

According to Solis, he informed a female intake official

during his processing at the jail that he was an ex-member of

the Mexican Mafia and was therefore a “high control risk” in

need of special protection. The official told him to notify the

deputies at his cell block once he arrived. At that time, Solis

was required to fill out a “Segregation Assessment” form so

that his housing classification could be determined. He stated

on the form that he had been affiliated with gangs and that he

had never served as a police informant or witness for the state.

In response to the question, “Do you fear for your safety

while in this facility?” Solis answered “No.” According to

Solis, he did fear for his safety but answered “No” because

active gang members were present when he was filling out the

form, and answering “Yes” would have drawn their attention

to him. Solis was placed in Module 4700, which houses “general population” inmates who are not under protective custody

and are not segregated from other inmates. 

1438 COUNTY OF LOS ANGELES v. BELTRAN
Solis asserts that, shortly after arriving in Module 4700, he

spoke informally with Deputy Miguel Beltran (“Beltran”), an

officer in the “Operation Safe Jail” (“OSJ”) unit, which was

responsible for gathering intelligence on gang activity in the

jail. Solis claims that he told Beltran he was “in trouble”

because he was an ex-gang member who should have been in

protective custody, and that he showed Beltran several documents proving that he was a gang dropout. According to Solis,

Beltran responded, “We’ll interview you.” Beltran denies ever

having had such a conversation with Solis. 

Solis asserts that on July 14, 1999, members of the OSJ

unit interviewed him along with several other prisoners from

Module 4700. He states that he believes that the primary

interviewer was named “Vargas” but that Beltran was present

as well. According to Solis, he told his interviewers that he

was an ex-member of the Mexican Mafia and showed them

the documents confirming his status. He claims that “Vargas”

then asked him to be an informant for OSJ. Solis asserts that

when he refused and requested placement in protective custody, “Vargas” threatened to put him in the “gang module,”

a unit that houses active gang members. Solis objected, but

was nevertheless transferred to the “gang module” that same

day.2

Two weeks later, around July 28, 1999, Solis was assaulted

by three inmates in the gang module. He asserts that during

the beating, one of the assailants mentioned Beltran by name,

stating, “Beltran was the one that gave you up, punk.” On

August 2, as Solis was walking to the shower area, he

reported the assault to Deputy John Gutierrez. He explained

that this was his first chance to report the beating because it

was the first time he had not been in the presence of his

assailants since the attack. Gutierrez observed that Solis had

2That Solis was transferred to the gang module is undisputed. As the

district court found, “There is no question that an event occurred, which

changed Plaintiff’s cell assignment . . . .” 

COUNTY OF LOS ANGELES v. BELTRAN 1439
bruises on his torso, forearms, neck, and eye, and escorted

him to the clinic for medical attention. That day, Solis was

transferred out of the gang module to Module 3700. 

On February 11, 2002, Solis filed a pro se complaint in federal court against Beltran, “Vargas,” Sheriff Lee Baca, the

County of Los Angeles, and the Los Angeles County Sheriff’s

Department (“Defendants”),3 alleging violations of his civil

rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988.

He argued, inter alia, that the Defendants retaliated against

him for refusing to “snitch” by placing him in the gang module with knowledge of the attendant dangers, and that such

retaliation was a custom or practice of the County.4 In his

complaint he demanded a jury trial, both in the caption and at

the end of the pleading. 

On September 20, 2004, the district court received the first

of Solis’s two requests for appointment of counsel. The court

rejected the request on the ground that no proof of service was

attached to the motion. On November 3, 2004, the court filed

an Order for Jury Trial, which set a trial date of April 5, 2005,

and contained instructions regarding discovery, pretrial settlement, and the submission of motions, instructions, and exhibits in preparation for trial. At the bottom of the section

requiring the submission of jury instructions and special verdict forms, the order stated, “Failure of counsel to strictly follow the provisions of this section . . . SHALL CONSTITUTE

A WAIVER OF JURY TRIAL in all civil cases.” 

3The complaint also included various John and Jane Does, representing

custodial and medical personnel of the Los Angeles County Sheriff’s

Department. The district court did not mention these parties in any of its

rulings. 

4A municipality may be held liable for the unconstitutional acts of its

officials if those acts were done pursuant to a “policy or custom” of the

municipality. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). 

1440 COUNTY OF LOS ANGELES v. BELTRAN
On January 19, 2005, the Defendants filed a motion for

summary judgment, to which Solis filed an opposition on

February 22. The Defendants then filed objections to Solis’s

summary judgment opposition, complaining that the opposition was filed nine days late, did not contain a separate statement of undisputed facts, and was supported only by hearsay

or documents that had not been properly disclosed. The district court accepted Solis’s untimely opposition and granted

the Defendants summary judgment as to Solis’s Monell claim

and his § 1986 claim. It also dismissed Solis’s claims against

Sheriff Baca, noting that Solis had “not shown any evidence

that Sheriff Baca should be held individually liable.” The

court did find, however, that Solis had presented enough evidence to create a genuine issue of material fact with respect

to Beltran, and thus denied summary judgment on Solis’s

§§ 1981, 1983, and 1985 claims against him. 

Two weeks later, during a March 21, 2005, pretrial conference at which Solis appeared telephonically, the district court

stated that Solis “did not file a jury demand” and had waived

jury trial “due to the non-submission of required pretrial documents.” Noting that Solis’s confinement was a “substantial

barrier to his attendance at trial,” the district court announced

that it would conduct the trial as a “Court Trial by videotape

depositions.” Solis subsequently filed a second request for

appointment of counsel, explaining that his education was

limited to an eighth-grade level, that he had no legal education and limited access to legal materials, and that the case

involved complex legal issues that required discovery of documents and depositions of a number of witnesses. He also

reiterated his demand for a jury trial. The district court denied

the request for counsel without explanation. 

Having reviewed the videotaped depositions and corresponding transcripts of Solis, Beltran, and Gutierrez, the district court issued its “Statement of Decision” on July 14,

2005. Finding that there was “no question that an event

occurred which changed [Solis’s] cell assignment and directly

COUNTY OF LOS ANGELES v. BELTRAN 1441
led to [Solis’s] injuries,” the district court criticized Beltran

for being “less than forthcoming with regard to the presentation of evidence” that should have been in his immediate control. The district court also concluded that Solis’s “version as

to many of the events seems more credible than that of Defendant’s witnesses.” Nevertheless, the district court ruled in Beltran’s favor on the ground that Solis was “unable to provide

sufficient evidence to sustain a finding of liability.” There was

no separate order setting forth the judgment apart from the

Statement of Decision. The district court ordered Solis to pay

a bill of costs in the amount of $1,115 for trial and deposition

fees. 

Solis filed a Notice of Appeal on October 18, 2005. He

argues that (1) summary judgment was improper; (2) the district court deprived him of his right to a jury by adjudicating

his claim against Beltran via a bench trial “by videotape depositions,” and that, in any event, the district court’s verdict in

favor of Beltran was wrong on the merits; and (3) the district

court abused its discretion in refusing to appoint Solis counsel. We address each issue in turn.

II. Discussion 

A. Jurisdiction

[1] As a preliminary matter, we reject the Defendants’ contention that this Court lacks jurisdiction because Solis’s notice

of appeal was untimely. Notice of appeal must be filed within

30 days “after the judgment . . . is entered,” subject to certain

exceptions. Fed. R. App. P. 4(a)(1)(A). A judgment is not

“entered” for the purposes of Rule 4(a) unless it complies

with Rules 58(a) and 79(a) of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a)(7); Beaudry Motor Co. v. Abko

Props., Inc., 780 F.2d 751, 754 (9th Cir. 1986). Rule 58(a)(1)

requires that every judgment be set forth on a separate document, with certain exceptions not applicable here. Fed. R. Civ.

P. 58(a)(1). Rule 79(a) details the civil docketing procedure

1442 COUNTY OF LOS ANGELES v. BELTRAN
to be followed by the district court clerk when entering the

judgment. Fed. R. Civ. P. 79(a). When judgment is not set

forth on a separate document as required by Rule 58(a)(1), it

is considered “entered” when 150 days have run from notation in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii). 

[2] The district court’s “Statement of Decision” was issued

on July 14, 2005, and entered on the docket, in accordance

with Rule 79(a), on July 15, 2005. The district court did not,

however, set forth the judgment on a separate document as

required by Rule 58(a)(1).5 Therefore, judgment was not “entered” until December 12, 2005, 150 days after the Statement

of Decision was noted in the civil docket. As a result, Solis’s

October 18, 2005, Notice of Appeal was timely, see Fed. R.

App. P. 4(a)(2) (“A notice of appeal filed after the court

announces a decision or order—but before the entry of the

judgment or order—is treated as filed on the date of and after

the entry.”), and we accordingly have jurisdiction to consider

Solis’s claims on appeal. 

B. Summary Judgment

Solis argues that the district court’s grant of summary judgment in favor of the Defendants (excluding Beltran) was inappropriate because he was not given fair notice of the

requirements and consequences of a summary judgment

motion, as required by Rand v. Rowland, 154 F.3d 952 (9th

Cir. 1998) (en banc). We review a district court’s grant of

5Central District of California Local Rule 58-6 states that “[n]otation in

the civil docket of entry of a memorandum of decision, an opinion of the

Court, or a minute order of the Clerk shall not constitute entry of judgment

pursuant to F.R. Civ. P. 58 and 79(a) unless specifically ordered by the

judge.” The district judge in this case did not include any language in the

Statement of Decision indicating that he was ordering the notation of the

Statement in the civil docket to constitute entry of judgment. See Radio

Television Espanola S.A. v. New World Entm’t, Ltd., 183 F.3d 922, 931-

32 (9th Cir. 1999). 

COUNTY OF LOS ANGELES v. BELTRAN 1443
summary judgment de novo. Lynn v. Sheet Metal Workers’

Int’l Ass’n, 804 F.2d 1472, 1477 (9th Cir. 1986). 

[3] In Rand, we reaffirmed the longstanding principle that

a pro se prisoner is entitled to fair notice of the requirements

and consequences of the summary judgment rule. Rand, 154

F.3d at 959. We further held that either the district court or the

summary judgment movant may provide the prisoner with

notice,6 and that “[i]f the movant provides the notice, it must

be in a separate form that the plaintiff will recognize as given

pursuant to the court’s requirement. It may not be provided

within the summary judgment motion or in the papers ordinarily filed in support of the motion.” Id. at 960. Finally, we

outlined the contents required for sufficient notice, holding

that the notice “must be phrased in ordinary, understandable

language” and that it must inform the prisoner both of his

“right to file counter-affidavits or other responsive evidentiary

materials” and, “most importantly, . . . of the effect of losing

on summary judgment.” Id.

[4] Here, neither the district court nor the Defendants provided the notice Rand requires. The district court issued

instructions regarding preparation for trial in its “Order for

Jury Trial.” Under the heading “Motions for Summary Judgment or Partial Summary Judgment,” the district court stated

only that “[m]otions for summary judgment or partial summary judgment shall be filed as soon as practical, however, in

no event later than the motion cut-off date.” Its order contained no instructions regarding either the requirements of

responding to or the consequences of losing on summary

judgment. Specifically, the district court’s order did not alert

Solis “to the fact that the failure to [file responsive evidentiary

materials] might result in the entry of summary judgment

against” him, Rand, 154 F.3d at 960, and it certainly did not

6

In doing so, we explicitly overruled Arreola v. Mangaong, 65 F.3d

801, 802 (9th Cir. 1995) (per curiam), which held that the notice must be

given by the district court itself. 

1444 COUNTY OF LOS ANGELES v. BELTRAN
“inform [Solis] that if the motion for summary judgment is

granted, [his] case will be over,” id. 

[5] Nor did the Defendants provide, “in a separate form” as

required by Rand, any notice describing the procedural

requirements Solis must meet in countering the summary

judgment motion or the consequences of failing to meet those

requirements, including the fact that losing on summary judgment would mean the effective termination of his case.7

See

id. at 960-61; see also id. at 962 (holding that the defendants’

two-page notice of rules relating to summary judgment,

although it alerted the pro se prisoner of his right to file

responsive materials and the consequences of failing to do so,

was nevertheless insufficient because it was not phrased in

ordinary language and did not inform the plaintiff of the effect

of losing on summary judgment). 

[6] Thus, because Solis was not given fair notice,

demanded by Rand, of the requirements and consequences of

a summary judgment motion, we reverse the district court’s

grant of summary judgment in favor of all defendants other

than Beltran and remand all claims that were dismissed at that

stage, with one exception: we agree with the district court that

Solis’s § 1986 claim was untimely,8 and therefore we affirm

7Not only did the Defendants fail to inform Solis of the proper procedures for responding to a summary judgment motion, they sought to take

advantage of Solis’s lack of understanding regarding those procedural

requirements. Defendants’ “Objections to Plaintiff’s Opposition to Summary Judgment” focused almost exclusively on Solis’s failure to meet the

procedural and evidentiary requirements of countering a summary judgment motion—it complained that Solis’s opposition was filed nine days

late, did not contain a separate statement of undisputed facts, and was supported only by hearsay or documents that had not been properly disclosed.

8Section 1986 provides that “no action under the provisions of this section shall be sustained which is not commenced within one year after the

cause of action has accrued.” 42 U.S.C. § 1986. Solis filed his federal

complaint in February 2002, nearly three years after his alleged injuries

took place. 

COUNTY OF LOS ANGELES v. BELTRAN 1445
the grant of summary judgment as to that claim. Otherwise,

we decline to conduct harmless error analysis, as “harmless

error review is inappropriate in most cases” of Rand violation,

id. at 961, and this is not the “unusual case where the harmlessness of the failure to give the required notice may be

established on the record or by judicial notice,” id. See also

id. at 960-61 (holding that harmlessness analysis may be

appropriate where the record clearly shows that the plaintiff

had received Rand notice in prior litigation or that he “has a

complete understanding of Rule 56’s requirements gained

from some other source”).9

C. Jury Trial

Solis also argues that the district court erred in holding a

bench trial “by videotape depositions” instead of a jury trial

to adjudicate his claims against Beltran, and that such error

warrants reversal of its verdict in favor of that defendant.

Whether a party is entitled to a jury trial is a question of law

we review de novo. Frost v. Agnos, 152 F.3d 1124, 1128 (9th

Cir. 1998). “The unconstitutional denial of a jury trial must be

reversed unless the error is harmless.” United States v. Cal.

Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1377 (9th Cir.

1997). 

The Seventh Amendment guarantees the right to a trial by

jury “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars.” U.S. Const. Am. VII. Like

other constitutional rights, the right to a jury trial in civil suits

can be waived. United States v. Moore, 340 U.S. 616, 621

(1951); Kulas v. Flores, 255 F.3d 780, 784 (9th Cir. 2001);

see also 8 Moore’s Federal Practice § 38.52[1][b] (3d ed.

2006). “Because the right to a jury trial is a fundamental right

9That Solis met the requirements for countering summary judgment as

to one defendant does not mean that he necessarily understood all that was

required or what the consequences would be if he did not meet those

requirements as to the others. 

1446 COUNTY OF LOS ANGELES v. BELTRAN
guaranteed to our citizenry by the Constitution,” however,

“courts should indulge every reasonable presumption against

waiver.” Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.

1981); see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393

(1937). 

[7] Federal Rule of Civil Procedure 38(b) requires a party

wishing to assert the right of trial by jury to “demand a trial

by jury . . . by (1) serving upon the other parties a demand

therefor in writing at any time after the commencement of the

action and not later than 10 days after the service of the last

pleading directed to such issue, and (2) filing the demand as

required by Rule 5(d).” The rule also specifies that “[s]uch

demand may be indorsed upon a pleading of the party.” Fed.

R. Civ. P. 38(b).10 A party’s failure to serve and file the

demand in the manner specified in Rule 38(b) constitutes a

waiver of the right to a trial by jury. Fed. R. Civ. P. 38(d).

Once a demand for jury trial has been properly made, however, it “may not be withdrawn without the consent of the parties.” Id. “Rule 39(a) . . . sets forth the manner in which this

consent may be granted.” Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1304 n.20 (9th Cir. 1983). It

requires consent to be made “by written stipulation filed with

the court or by an oral stipulation made in open court and

entered in the record.” Fed. R. Civ. P. 39(a)(1).11

10In the Central District of California, Local Rule 38-1 further provides

that “[i]f the demand for jury trial is included in a pleading, it shall be set

forth at the end thereof and be signed by the attorney for the party making

the demand. The caption of such a pleading shall also contain the following: ‘DEMAND FOR JURY TRIAL.’ ” 

11Effective December 1, 2007, the language of Rules 38 and 39 were

“amended as part of the general restyling of the Civil Rules to make them

more easily understood and to make style and terminology consistent

throughout the rules.” Fed. R. Civ. P. 38 & 39 advisory committee notes.

Rule 38(b) now states that a party “may demand a jury trial by: (1) serving

the other parties with a written demand—which may be included in a

pleading—no later than 10 days after the last pleading directed to the issue

is served; and (2) filing the demand in accordance with Rule 5(d)”; Rule

COUNTY OF LOS ANGELES v. BELTRAN 1447
The district court stated two reasons for its decision to conduct a bench trial rather than a jury trial with respect to Solis’s

claim against Beltran. First, the district court found that Solis

“did not file a jury demand.” Second, the district court stated

that Solis had waived his right to a trial by jury “due to the

non-submission of required pretrial documents.” We hold that

both of the district court’s reasons for denying Solis a jury

trial were faulty: Solis clearly demanded a jury trial and never

withdrew that demand, and the district court’s imposition of

a penalty of forfeiture of that right for failing to comply with

a procedural pre-trial requirement was invalid. Because the

district court’s denial of a jury trial was not harmless error, we

reverse the district court’s verdict against Solis and remand

for a new trial, this time by jury. 

1. Solis demanded a trial by jury.

[8] The district court’s finding that Solis “did not file a jury

demand” was plainly in error. Solis included the words “DEMAND FOR JURY TRIAL” in the caption of his complaint

as well as on the last page, which also contained the unambiguous statement, “Plaintiff hereby requests a trial by jury.”

Thus, it is clear that Solis complied with both the spirit and

the letter of Federal Rule 38(b), as well as Local Rule 38-1,

by unequivocally demanding a jury trial in both the caption

and at the end of his pleading. 

[9] Moreover, there can be no question that both the district

court and the Defendants were aware of Solis’s demand for a

jury trial: the district court entered an “Order for Jury Trial,”

38(d) now states that a “proper demand may be withdrawn only if the parties consent”; and Rule 39(a)(1) now states that, once a demand is made,

the trial “must be by jury unless . . . the parties or their attorneys file a

stipulation to a nonjury trial or so stipulate on the record.” These changes

to the rules’ wording were “intended to be stylistic only,” Fed. R. Civ. P.

38 & 39 advisory committee notes, and have no effect on the substance

of our decision. 

1448 COUNTY OF LOS ANGELES v. BELTRAN
the case was docketed for jury trial, and the Defendants filed

proposed jury instructions with the court. Indeed, the Defendants do not dispute on appeal that they were aware of Solis’s

request. Therefore, because Solis’s jury demand was “sufficiently clear to alert” both the Defendants and the district

court “that a jury trial [wa]s requested,” Lutz v. Glendale

Union High Sch., 403 F.3d 1061, 1064 (9th Cir. 2005), the

district court’s finding that Solis “did not file a jury demand”

was clearly erroneous. 

2. Solis did not waive his right to a jury trial.

The district court also found, as a separate ground for denying Solis a jury trial, that Solis had waived his right to a trial

by jury “due to the non-submission of required pretrial

documents”—specifically, Solis’s failure to file proposed jury

instructions and special verdict forms, despite the district

court’s warning in its Order for Jury Trial that failure to do

so would “CONSTITUTE A WAIVER OF JURY TRIAL in

all civil cases.” 

[10] When a party properly files a jury demand under the

requirements of Rule 38(b), he has satisfied all that is required

by the Rules to avoid waiver, and his jury demand “may not

be withdrawn without the consent of the parties.” Fed. R. Civ.

P. 38(d); see also Pradier, 641 F.2d at 810. The district

judge’s waiver provision required Solis to satisfy additional

procedural requirements beyond filing a jury demand—

namely, the filing of jury instructions and special verdict

forms—or to forfeit his jury trial right. This rule was clearly

inconsistent with Rule 38(d)’s limitation of waiver to the failure to file a jury demand and consequently cannot be

enforced. See Pradier, 641 F.2d at 810 (“[I]f Local Rule 22

is inconsistent with Fed. R. Civ. P. 38(b), it cannot be

enforced.”); Rutledge v. Elec. Hose & Rubber Co., 511 F.2d

668, 674 (9th Cir. 1975) (holding a local rule valid where its

“requirements . . . do not conflict with any of the provisions

of Rule 38”). 

COUNTY OF LOS ANGELES v. BELTRAN 1449
[11] “The demand for a jury trial having been properly

made under Fed. R. Civ. P. 38(b), the failure to fulfill an additional requirement of a local rule . . . cannot constitute a

waiver of a trial by jury.” Pradier, 641 F.2d at 811. Solis

properly demanded a jury trial pursuant to the requirements of

Rule 38(b). The district court’s determination that his failure

to file proposed jury instructions and special verdict forms

constituted a waiver of his right to a trial by jury was therefore erroneous. 

3. Solis did not consent to the withdrawal of his jury

demand.

The Defendants argue, nevertheless, that by “participat[ing]

in the [bench trial], inform[ing] the court of the witnesses he

intended to call, and . . . not contest[ing] or object[ing] to the

court’s finding of a waiver of jury trial,” Solis effectively consented to the bench trial. We find this argument without merit.

Rule 38(d) states unequivocally that a “demand for trial by

jury . . . may not be withdrawn without the consent of the parties,” Fed. R. Civ. P. 38(d) (emphasis added), and Rule 39(a)

specifies that such consent must be made by written or oral

stipulation. There is no dispute that Solis did not stipulate,

either orally or in writing, to consent to a bench trial. Thus,

it is clear that, under Federal Rules 38 and 39, Solis never

withdrew his jury trial demand. 

[12] Nevertheless, this court has held that “knowing participation in a bench trial without objection is sufficient to constitute a jury waiver,” the literal requirements of Rule 39(a)

notwithstanding. White v. McGinnis, 903 F.2d 699, 703 (9th

Cir. 1990) (en banc). We have made clear, however, that this

narrow exception to the formal requirements of Rules 38 and

39 applies only when the party claiming the jury trial right is

attempting to act strategically—participating in the bench trial

in the hopes of achieving a favorable outcome, then asserting

lack of consent to the bench trial when the result turns out to

1450 COUNTY OF LOS ANGELES v. BELTRAN
be unfavorable to him. See Fuller v. City of Oakland, 47 F.3d

1522, 1531 (9th Cir. 1995) (stating that a primary rationale

behind White is the principle that “a party ought not to have

two bites at the procedural apple”). In White, for example,

although the district court set the case for a bench trial despite

the appellant’s timely jury trial demand, the appellant “never

brought his prior jury demand to the district court’s attention

during the five and one-half month period between the bench

trial notice and the trial,” “sat through the entire bench trial

and never once objected to the absence of a jury while his

counsel vigorously argued his case to the judge,” and did not

“notify the court of its mistake before it entered judgment

against him.” White, 903 F.2d at 700. We held that the appellant’s “vigorous participation in [the] bench trial, without so

much as a mention of a jury” constituted a “knowledgeable

relinquishment of the prior jury demand.” Id. at 703. In avoiding an overly rigid application of Rule 39, we emphasized the

equities involved, stressing that because the appellant “chose

to argue his case fully before the district judge,” it was “not

unjust to hold him to that commitment.” Id.

[13] Not every participation in a bench trial constitutes consent to the waiver of a jury trial, however. When a party participates in the bench trial ordered by the trial court while

continuing to demand a jury trial, his “continuing objection”

is “sufficient to preserve his right to appeal the denial of his

request for a jury.” United States v. Nordbrock, 941 F.2d 947,

950 (9th Cir. 1991); see also California Mobile Home, 107

F.3d at 1380 (noting that “no Court has expanded [White] to

find a waiver of a right to a jury trial where a plaintiff actively

contests the district court’s decision to refuse the demand”);

White, 903 F.2d at 703 (holding that “knowing participation

in a bench trial without objection” constitutes a jury waiver)

(emphasis added). This is because the party in such a case is

not seeking “two bites at the procedural apple” like the appellant in White. Fuller, 47 F.3d at 1531. Rather, when a trial

court denies a party a jury trial despite the party’s continuing

demand, the party has little choice but to accede to the trial

COUNTY OF LOS ANGELES v. BELTRAN 1451
court’s ruling and participate in the bench trial. See Nordbrock, 941 F.2d at 950 (“His assent to the [bench trial] was

reasonable in light of the court’s earlier ruling that implicitly

denied the demand for a jury trial.”). Reluctant participation

in a bench trial does not waive one’s Seventh Amendment

right to a jury trial under White’s narrow exception to Rule

39(a). 

[14] In this case, it is clear that Solis was not seeking “two

bites at the procedural apple” by “participating” in the “Court

Trial by videotape depositions.” Once the district court found,

erroneously, that Solis had waived his right to a jury trial,

Solis had little option but to make his objection known and go

forward with the bench trial as best he could. That he did so

does not constitute “knowledgeable relinquishment of the

prior jury demand.” White, 903 F.2d at 703. Like the appellant

in Nordbrock, Solis did bring his prior jury demand to the district court’s attention during the “period between the bench

trial notice and the trial.” White, 903 F.2d at 700. He noted

that demand in his second motion for counsel, filed after the

district court found that he had waived his jury right.12 Furthermore, in contrast to the appellant in White, Solis’s “participation” in the bench trial was far from “vigorous,” see id. at

703—the “trial” consisted solely of the court’s review of videotaped deposition testimony, during which the parties were

not even present. Therefore, indulging “every reasonable presumption against the waiver of the jury trial,” Nordbrock, 941

F.2d at 950 (citing Pradier, 641 F.2d at 811), as we are bound

to do, we hold that Solis did not, by participating in the dis12Although Solis included his statement that he had “demanded a jury

trial” in his motion for counsel, rather than in a separate filing, we construe it as a “continuing demand” under Nordbrock pursuant to our “policy

of liberal construction in favor of pro se litigants,” Rand, 154 F.3d at 957;

see also Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002) (“[W]e have

consistently held that procedural requirements should be more liberally

construed for pro se litigants.”). Moreover, it appears that at that time

Solis believed that he was still entitled to and would receive a trial by jury.

1452 COUNTY OF LOS ANGELES v. BELTRAN
trict court’s bench trial by videotape depositions, consent to

the withdrawal of his prior jury demand. 

4. The district court’s erroneous denial of a jury trial was

not harmless.

[15] Having concluded that the district court erred in denying Solis a jury trial, we must determine whether that error

was harmless. See Fuller, 47 F.3d at 1533. “The denial will

be harmless only if ‘no reasonable jury could have found for

the losing party, and the trial court could have granted a

directed verdict for the prevailing party.’ ” Id. (quoting Davis

& Cox v. Summa Corp., 751 F.2d 1507, 1517 (9th Cir. 1985)).

We hold that the district court’s denial of Solis’s jury trial

right was not harmless. Solis needed to prove the constitutional violation he asserted—namely, that Beltran acted with

deliberate indifference in failing to protect him from attacks

by other inmates, in violation of the Eighth Amendment, see

Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)—by

only a preponderance of the evidence. See Tatum v. City &

County of San Francisco, 441 F.3d 1090, 1094 (9th Cir.

2006). Deliberate indifference occurs when “the official acted

or failed to act despite his knowledge of a substantial risk of

serious harm.” Farmer v. Brennan, 511 U.S. 825, 841 (1990).

Solis testified that he twice told Beltran that he was a gang

drop-out and that he presented documentary evidence to Beltran establishing his status as an ex-Eme member, thereby

putting Beltran—who himself testified that he had authority

to change Solis’s housing assignment—on notice that a transfer to the gang module could foreseeably result in Solis being

attacked. Solis also testified that one of the inmates who

assaulted him implicated Beltran directly in Solis’s transfer to

the gang unit, stating that “Beltran was the one that gave

[him] up.” Beltran, in turn, offered no explanation for Solis’s

transfer; his defense amounted to little more than a bald denial

of any knowledge of or interaction with Solis. The district

court itself found Beltran’s presentation of evidence “less than

COUNTY OF LOS ANGELES v. BELTRAN 1453
forthcoming,” and determined that Solis’s “version as to

many of the events seem[ed] more credible than that of [Beltran’s] witnesses.” 

[16] Given the relative credibility of the witnesses, a reasonable jury could have found that Solis, through his documents establishing his ex-gang member status as well as

through his testimony that Beltran was aware of that status,

proved by a preponderance of the evidence that Beltran acted

with deliberate indifference in transferring him to the gang

module. Compare Frost, 152 F.3d at 1131. Therefore, the district court’s erroneous denial of a jury trial was not harmless

and, consequently, we remand for retrial of Solis’s case

before a jury.13

D. Request for appointment of counsel

Finally, Solis argues that the district court abused its discretion in denying his request for the appointment of counsel.

Title 28 U.S.C. § 1915(e)(1) permits the district court, in its

discretion, to “request an attorney to represent any person

unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also

Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.

2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S.

1128 (2005). In this case, Solis twice requested the appointment of counsel. The district court rejected Solis’s first

request on the ground that no proof of service was attached.

In denying Solis’s second request, the district court stated

only that “[t]he Court has reviewed the motion for appoint13Solis requests that we reverse the district court’s finding in favor of

Beltran and direct a verdict for him. Although we believe that a reasonable

jury could have found for Solis on the evidence presented, we do not

believe that his evidence was so strong that no reasonable jury could have

found for Beltran, see Ritchie v. United States, 451 F.3d 1019, 1023 (9th

Cir. 2006) (“[J]udgment as a matter of law is appropriate only if no reasonable jury could find in favor of the non-moving party.”), and therefore

we decline to direct a verdict in Solis’s favor. 

1454 COUNTY OF LOS ANGELES v. BELTRAN
ment of counsel, filed by plaintiff on April 28, 2005. The

motion is denied.” 

[17] We note that a jury trial will occur in this case, and

that Solis is incarcerated in a penal institution and is without

legal training. In fact, his education ended at the eighth grade

level. He is ill-suited to conduct a trial. We also note that

there may well be merit to his claims. However, because the

district court failed to articulate its reasons for denying Solis’s

request, we cannot determine on appellate review whether its

denial constituted an abuse of discretion. See United Nat’l Ins.

Co. v. R & D Latex Corp., 141 F.3d 916, 919 (9th Cir. 1998)

(“[M]eaningful appellate review for abuse of discretion is

foreclosed when the district court fails to articulate its reasoning.”); United States v. 30.64 Acres of Land, 795 F.2d 796,

804 (9th Cir. 1986) (holding that the district court “does not

discharge [its] duty [under § 1915(e)(1)] if it makes no

attempt to request the assistance of volunteer counsel or,

where the record is not otherwise clear, explain its failure to

do so”). Accordingly, we reverse the district court’s order

denying Solis’s motion to appoint counsel and instruct the

district court on remand to reconsider his request. If the district court should, after considering all the relevant factors,

including those mentioned above, decide once again to deny

Solis’s motion for appointment of counsel, it must provide an

adequate explanation of its reasons such that its decision may

be reviewed by us on appeal.

III. Conclusion

Because Solis was not provided notice of the requirements

and consequences of summary judgement, as required by

Rand, we reverse the district court’s grant of summary judgment in favor of the defendants other than Beltran and remand

all dismissed claims involving them (except for Solis’s

untimely § 1986 claim). We also reverse the district court’s

verdict in favor of Beltran and remand for a new trial before

a jury. The district court erred in denying Solis a jury trial: he

COUNTY OF LOS ANGELES v. BELTRAN 1455
properly demanded such a trial; his failure to submit specified

pretrial documents cannot constitute a waiver of the jury

right; and his “participation” in the bench trial did not amount

to consent to a waiver of his prior jury demand. The failure

to afford Solis a jury trial was not harmless error, as a reasonable jury could have found that Beltran violated Solis’s constitutional rights. Finally, we reverse the district court’s denial

of Solis’s request for appointment of counsel and remand on

that issue as well. Because our reversal means that Beltran is

no longer the “prevailing party,” we vacate the bill of costs

ordered against Solis. See Fed. R. Civ. P. 54(d). 

The case is REVERSED and REMANDED, and the bill of

costs is VACATED. 

1456 COUNTY OF LOS ANGELES v. BELTRAN