In the October, 1993, issue of PLN we reported Schroeder v. McDonald, 823 F. Supp. 750 (D HI 1993) in which a Hawaii prisoner filed suit over a retaliatory transfer from a minimum to a medium security prison. The district court held that the defendants were not entitled to qualified immunity and denied their motion for summary judgment. The defendants appealed and the ninth circuit court of appeals reversed in part, affirmed in part and remanded the case.

Shortly after arrival at the minimum security prison Schroeder began to complain about the lack of law library access. He sent complaints to Hawaii DOC officials and to all federal judges in the state. Prison staff told him they did not appreciate his sending complaints outside of the DOC or to DOC officials. The court held this indicated that a retaliatory intent was present on the part of the defendants.

Turning to the question of qualified immunity, the court noted that "The qualified immunity test requires a two part analysis: (1) Was the law governing the official's conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful? Act-Up/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)."

Analyzing Schroeder's claims, the court held "First, the law governing defendants' conduct was clearly established. Specifically, the law clearly established that defendants cannot transfer a prisoner from one correctional institution to another in order to punish the prisoner for exercising his First Amendment right to pursue civil rights litigation. See: Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Because the law governing defendants' conduct was clearly established, we must determine whether a reasonable prison official could have believed the conduct was lawful."

The second prong of the court's inquiry into the qualified immunity was whether "A reasonable prison official could have believed the transfer was lawful if he were advancing a legitimate penological goal and his means were narrowly tailored to achieve that goal Rizzo, 778 F.2d at 532. Legitimate goals of a correctional institution include the preservation of internal order and discipline and the maintenance of institutional security." The court noted that Schroeder had received seven infractions in sixteen days at the minimum security prison. Further more, his security level was such that he should not have been transferred to minimum security to begin with. "Consequently, we conclude that defendants are entitled to the defense of qualified immunity with regard to the retaliation claim."

Readers will note that the court's ruling on this issue is highly fact specific. Namely, the fact that there were disciplinary charges supporting the transfer rather than a transfer that does not involve allegations of misconduct, etc. Even though the defendants were entitled to qualified immunity that should not moot claims for injunctive and declaratory relief. It appears that Schroeder sought only money damages.

Schroeder also claimed his due process rights were violated when he was transferred back to medium security with a security classification of 9, when Hawaii prison regulations required a level of at least 21. The court affirmed the lower court ruling that Hawaii prison regulations create a due process liberty interest that can be enforced via § 1983. Analyzing the defendant's qualified immunity claim under the two prong Act- Up/Portlanad test, the court concluded that the law on this issue was well established. "Specifically, the law clearly established that defendants must follow mandatory prison regulations. Second, could a reasonable prison official have believed the conduct was lawful? We conclude that a reasonable prison official could not have believed the conduct was lawful. Specifically, when defendants transferred Schroeder back to the medium security prison, Schroeder had a score of 9. Defendants knew that Schroeder had to have a score of 21 to increase his security classification. Thus, defendants acted in complete disregard for clearly established prison regulations."

"Accordingly, defendants fail the second part of the qualified immunity test. Consequently, we conclude that defendants are not entitled to the defense of qualified immunity with regard to the due process claim." See: Schroeder v. McDonald, 41 F.3d 1272 (9th Cir. l994), amended at 55 F.3d 454 (9th Cir. 1995).

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