Schroeder v. McDonald, 93-15169

• Decision Date: 19 May 1995
• Docket Number: No. 93-15169,93-15169
• Parties: Eric SCHROEDER, Plaintiff-Appellee, v. Pete McDONALD, Branch Administrator; Susan Segawa, Social Worker; Ron Mico, Social Worker; George W. Sumner, DPS Director; Roland Leong, Prison Guard, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 454

55 F.3d 454

32 Fed.R.Serv.3d 196

Eric SCHROEDER, Plaintiff-Appellee, v. Pete McDONALD, Branch Administrator; Susan Segawa, Social

Worker; Ron Mico, Social Worker; George W.

Sumner, DPS Director; Roland Leong,

Prison Guard, Defendants-Appellants.

No. 93-15169.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1993.

Decided May 19, 1995.

Steven S. Michaels, Deputy Atty. Gen., Honolulu, HI, for defendants-appellants.

Eric A. Seitz and Edie A. Feldman, Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: POOLE, WIGGINS, and T.G. NELSON, Circuit Judges.

WIGGINS, Circuit Judge:

Defendants-appellants ("defendants") appeal the district court's denial in part of their motion for summary judgment. Plaintiff-appellee ("plaintiff") brought suit under 42 U.S.C. Sec. 1983. The district court found that defendants were not entitled to qualified immunity with regard to five of plaintiff's eleven causes of action. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We find defendants are entitled to qualified immunity on four of the five remaining causes of action. We reverse in part and remand for further proceedings on plaintiff's final cause of action.

I. FACTS AND PRIOR PROCEEDINGS

Plaintiff, Eric Schroeder, is a state prisoner serving a twenty-year sentence for first-degree robbery and kidnapping. Schroeder filed a pro se, in forma pauperis complaint in district court, alleging eleven causes of action. He is suing state prison officials under Sec. 1983, contending that his First, Eighth, and Fourteenth Amendment rights were violated. Defendants each played some role in transferring Schroeder from a minimum security facility back to the medium security facility where he was originally assigned and had begun serving his sentence. Schroeder seeks compensatory damages of $725,000, punitive damages of $116,000, declaratory relief, and equitable relief.

Schroeder primarily alleges that the transfer was in retaliation for his having earlier filed a separate civil rights action against a prison guard. ¹ Schroeder further alleges that the transfer was in retaliation for his having complained, in a letter dated January 1, 1991, to defendant McDonald that the minimum security facility was in violation of several state and federal laws regarding the infrastructure and maintenance of prisons. Finally, Schroeder alleges that the transfer was in retaliation for his having mailed a motion to all of the district court judges for the District of Hawaii, asking for injunctive relief to permit him access to the courts while he was incarcerated at the minimum security facility.

Defendants counter that the transfer back to the medium security facility was justified. First, Schroeder committed seven rule violations in only his first sixteen days at the minimum security facility. ² Second, Schroeder imposed an excessive burden on the correctional staff by constantly demanding access to the law library and continuously requesting legal materials. ³ Third, Schroeder violated his promise not to file grievances or court actions against the staff at the minimum security facility. Fourth, Schroeder had used force or threats of force upon a correctional worker while at the medium security facility, a fact defendants did not know when they accepted Schroeder as a transfer. Finally, Schroeder's custody level did not warrant the transfer from the medium security facility to the minimum security facility in the first place, especially given that he had already committed numerous rule violations while incarcerated at the medium security facility.

Defendants moved for summary judgment on qualified immunity grounds. A magistrate recommended that defendants' motion for summary judgment be granted. On December 3, 1992, the district court entered an order adopting in part and modifying in part the magistrate's recommendations. Specifically, the district court granted summary judgment to all defendants on six of the eleven causes of action. ⁴ Furthermore, the district court granted summary judgment to one defendant, but denied summary judgment to the other defendants, on two additional causes of action. ⁵ Finally, the district court denied defendants summary judgment on the remaining three causes of action. ⁶ The December 3, 1992, order was never set forth on a separate document. See generally Fed.R.Civ.P. 58.

On December 18, 1992, the district court received and stamped "filed" a motion for reconsideration submitted by Schroeder. Schroeder challenged the district court's grant in part of summary judgment to defendants. On December 30, 1992, while Schroeder's motion for reconsideration was still pending, defendants filed a notice of appeal. Defendants challenge the district court's denial in part of their motion for summary judgment. On January 11, 1993, the district court denied Schroeder's motion for reconsideration.

II. JURISDICTION

At the time defendants filed their notice of appeal, Rule 4(a)(4) ⁷ plainly stated that a notice of appeal filed during the pendency of a Rule 59 motion "shall have no effect." In Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam), the Supreme Court held that a notice of appeal filed during the pendency of a Rule 59 motion is a nullity. See also Allah v. Superior Court, 871 F.2d 887, 889 (9th Cir.1989). However, Rule 4(a)(4) was amended, effective December 1, 1993, ⁸ to provide that when a notice is prematurely filed, it shall be in abeyance and become effective upon the date of entry of an order disposing of the Rule 59(e) motion.

First, we must decide whether Schroeder's motion for reconsideration was, in fact, a Rule 59(e) motion. Although Schroeder indicated that he was bringing his motion under Local Rule 220-10 of the District Court for the District of Hawaii, the fact that Schroeder labeled his motion as a local rule motion is not dispositive. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42 (9th Cir.1991) (holding motion for reconsideration brought pursuant to local rules may be treated as one brought pursuant to Rule 59(e) or Rule 60(b)).

We find that Schroeder did, in fact, file a timely Rule 59(e) motion. A "timely filed motion for reconsideration under a local rule is a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e)." Bestran Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019, 1019 (9th Cir.1983). The motion was timely because Schroeder served it within ten days after entry of judgment. There are two possibilities as to when judgment was entered. Judgment may have been entered on December 3, 1992, the date the district court issued its order. See Carson v. Block, 790 F.2d 562, 564 (7th Cir.) ("[T]he essence of a 'collateral' order is the absence of a final judgment on a separate document."), cert. denied, 479 U.S. 1017, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). Or, judgment may have never been entered because the order was never set forth on a separate document. See Fed.R.Civ.P. 58; Britt v. Whitmire, 956 F.2d 509, 510 (5th Cir.1992) (noting that Rule 58 mandates that a district court's partial grant of summary judgment be set forth on a separate document). Either way, Schroeder filed in a timely manner.

If judgment were entered on December 3, 1992, then Schroeder was required to serve his motion for reconsideration by December 17, 1992, which was the tenth day for serving purposes after the entry of judgment on December 3, 1992. See Fed.R.Civ.P. 6(a). ⁹ "[A]n incarcerated pro se litigant completes 'service' under Fed.R.Civ.P. 5(b) upon submission to prison authorities for forwarding to the party to be served." Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir.1993); see Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (holding that the Houston filing rule that an incarcerated pro se litigant files a notice of appeal on the day he delivers it to prison authorities for forwarding to the district court applies equally to other filings, including Rule 59(e) motions); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (holding that the Houston filing rule applies to Rule 59(e) motions). Schroeder submitted his documents to prison authorities for mailing on December 13, 1992. Schroeder was still a pro se litigant at this time. Accordingly, Schroeder served the motion on December 13, 1992, which was within the ten-day period set by Rule 59(e).

If, on the other hand, judgment was never entered because the order was never set forth on a separate document, Schroeder still filed his motion within ten days because the clock never started to run. Therefore, Schroeder necessarily served the motion within the ten-day period set by Rule 59(e).

Accordingly, Schroeder filed a timely Rule 59(e) motion and defendants filed a notice of appeal before the disposition of that motion. Thus, the issue before us is whether defendants' notice of appeal may be resurrected by a retroactive application of the amended version of Rule 4(a)(4). See Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Leader Nat'l Ins. Co. v. Industrial Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (holding amended Rule 4(a)(4) applies retroactively unless it would work an injustice) (per curiam).

The Supreme Court has ordered that the amended Rules of Appellate Procedure "shall govern all proceedings in appellate cases [commenced after December 1, 1993] and, insofar as just and practicable, all proceedings in appellate cases then pending." 61 U.S.L.W. 5365 (U.S. Apr. 27, 1993). The defendants' appeal was pending on December 1, 1993; thus, if the application of the 1993 amendment to this case is "just and practicable," we have...