Unpublished Disposition, 865 F.2d 264 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 865 F.2d 264 (9th Cir. 1987)

A.L. HENDERSON, Plaintiff-Appellant,v.Frank TERRY, Major, Robert Goldsmith, Warden, Defendants-Appellees.

No. 87-1880.

United States Court of Appeals, Ninth Circuit

Submitted*  Nov. 21, 1988.Decided Dec. 30, 1988.

Before WALLACE, SNEED and POOLE, Circuit Judges.


MEMORANDUM** 

Henderson and five other inmates brought this action against officials of the Arizona State Prison under 42 U.S.C. § 1983, alleging that the officials unconstitutionally denied them access to outdoor exercise while they were in protective custody. After discovery and the receipt of a magistrate's report, the district court, on December 17, 1986, granted the defendant's motion for summary judgment.

Two procedural events occurred thereafter that require that we remand this case for a finding of fact that could render Henderson's notice of appeal from the summary judgment void. Should the notice of appeal not be found to be void, the case should be returned to this court for a proper disposition of Henderson's appeal.

The two events were these. On December 23, 1986, Henderson filed a "Motion for Rehearing and for the Appointment of Counsel." Thereafter, Henderson filed a notice of appeal on January 13, 1987, twenty-seven days after judgment had been entered against the Henderson claim. The record does not reveal when, if ever, the Motion for Rehearing was served. That is, the deficiency that requires the remand.

Why this is so requires more than a sentence. Fed. R. Civ. P. 59(e) requires that a "motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." (emphasis added). Fed. R. App. P. 4(a) (4) states, first, that the time for filing an appeal following the filing of a motion to alter and amend "shall run from the entry of the order denying" the motion, and second, that " [a] notice of appeal filed before the disposition of any of the above motions shall have no effect." It follows, therefore, that if the December 23, 1986, motion were a motion to alter and amend a judgment, i.e., a Rule 59(e) motion, and if it were "served not later than 10 days after the entry of the [December 17, 1986] judgment," then the January 13, 1987 notice of appeal would be void inasmuch as the December 23, 1986 motion was not denied until February 25, 1987. Under these circumstances, we would have no alternative but to dismiss the case for lack of jurisdiction.

But we do not know when the December 23, 1986 motion was served. Thus, a remand to determine that date is necessary, provided the December 23, 1986 motion is a Rule 59(e) motion. Other characterizations are possible. A rule 60(b) motion, for example, embraces motions that seek relief from a judgment due to (1) mistakes, (2) newly discovered evidence, (3) fraud, (4) a void judgment, (5) a satisfied judgment, and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). The somewhat capricious aspect of this possibility is that if Henderson's December 23, 1986 motion is a Rule 60(b) motion, then Fed. R. App. P. 4(a) (4) does not void Henderson's January 13, 1987 notice of appeal which was, if not voided, timely filed. Under those circumstances, the precise date of service of the December 23, 1986 motion would be irrelevant.

So the issue becomes what was the December 23, 1986 motion, a Rule 59(e) or a Rule 60(b) motion? We hold that it was a Rule 59(e) motion. In pertinent part, it reads:

Comes now your plaintiff A.L. Henderson. Respectfully moves unto this Honorable Court for a rehearing in the above entitled cause, and for the extraordinary circumstances that has a serious civil, and criminal abuse by these prison officials who has [sic ] made this false entry into plaintiffs records in medical center.

R. tab 97.

While our cases are not entirely harmonious, their strong bent is to treat motions that can be embraced by Rule 59(e), and that are served within 10 days of judgment, as tolling the time for appeal until such motions are denied. Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 387 (9th Cir. 1988) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984) and collecting cases). But see United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1045-46 (9th Cir. 1984) (post-judgment motion seeking relief due to "extraordinary circumstances" made five days after entry of judgment construed as a Rule 60 motion).

A Rule 59(e) motion is appropriate when a party seeks to alter or amend judgment. The language " 'alter or amend' means a substantive change of mind by the court." Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983). Moreover, relief from a grant of summary judgment may be sought under Rule 59(e). See Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir. 1981), overruled on other grounds, In re Wash. Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349 (9th Cir. 1987) (en banc); Saint Francis Memorial Hosp. v. Weinberger, 413 F. Supp. 323, 332, n. 2 (N.D. Cal. 1976) (defendants were "in reality" seeking relief from summary judgment rather than a new trial, so motion construed as one under Rule 59(e)).

Henderson wanted the district court to change its position with respect to the summary judgment because of the assertion that a prison doctor made false entries into his medical records. A Rule 59(e) motion would accomplish this purpose. Therefore, we should construe it as such.

Thus, we return to the uncertainty about the date this Rule 59(e) motion was served. To repeat, if it were served "not later than 10 days after the entry of the [December 17, 1986] judgment" we would have no jurisdiction to hear this appeal. Fed. R. Civ. P. 59(e). On the other hand, were it not served within the required 10 days period, we would have such jurisdiction because Henderson's motion is then a Rule 60(b) motion and his notice of appeal is timely.

We remand this case to the district court to determine if, and when, the December 23, 1986 motion was served. Once this date has been fixed, the case should be returned to this court for the appropriate disposition.

REMANDED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

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

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