Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-91-00111-DAE. David A. Ezra, District Judge, Presiding.
Before: Cecil F. Poole, Charles Wiggins, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Wiggins.
Defendants-appellants appeal the district court's denial in part of their motion for summary judgment. Plaintiff-appellee brought suit under 42 U.S.C. § 1983. The district court found that defendants-appellants were not entitled to qualified immunity with regard to five of plaintiff-appellee's eleven causes of action. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). We find defendants-appellants are not entitled to qualified immunity on two causes of action. We affirm in part and reverse in part.
I. FACTS AND PRIOR PROCEEDINGS
Plaintiff-appellee, 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 § 1983, contending that his First, Eighth and Fourteenth Amendment rights were violated. Defendants-appellants 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.*fn1 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.
Appellants 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.*fn2 Second, Schroeder imposed an excessive burden on the correctional staff by constantly demanding access to the law library and continuously requesting legal materials.*fn3 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 appellants 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.*fn4 Furthermore, the district court granted summary judgment to one defendant, but denied summary judgment to the other defendants, on two additional causes of action.*fn5 Finally, the district court denied defendants summary judgment on the remaining three causes of action.*fn6 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.
At the time defendants filed their notice of appeal, Rule 4(a)(4)*fn7 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, 74 L. Ed. 2d 225, 103 S. Ct. 400 (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,*fn8 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.) ("The essence of a 'collateral' order is the absence of a final judgment on a separate document."), cert. denied, 479 U.S. 1017, 93 L. Ed. 2d 721, 107 S. Ct. 669 (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; ...