Unpublished Disposition, 872 F.2d 432 (9th Cir. 1987)

MEMORANDUM^** 

Charles Shannon Watson, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action. Watson alleged that 79 Arizona prison officials violated his constitutional rights. The district court dismissed the action for Watson's failure to comply with Fed. R. Civ. P. 8(a).

Watson did not file his notice of appeal within 30 days of the judgment of dismissal, see Fed.R.App. 4(a), yet he may have filed a timely motion under Fed. R. Civ. P. 59(e). Such a motion would have tolled the time limit for filing a notice of appeal. See Fed. R. Civ. P. 59(e); Fed. R. App. P. 4(a) (iii). In any event, based upon the authority of Wolder v. United States, 807 F.2d 1506 (9th Cir. 1987), we do not determine the jurisdictional question but affirm on the merits and hold that the district court did not abuse its discretion by dismissing Watson's complaint.

Background

On March 31, 1987, Watson filed a 42 U.S.C. § 1983 action against 79 Arizona prison officials. The complaint included seven single-spaced typewritten pages describing over 100 incidents which involved Watson and the officials over a two year period. In addition, Watson filed a petition for a temporary restraining order and for preliminary injunction.

On April 23, 1987, the district court sua sponte dismissed the complaint for failure to comply with Fed. R. Civ. P. 8(a), which requires a "short and plain statement" of the plaintiff's claim. The court gave Watson 30 days to file an amended complaint. On June 4, 1987, Watson filed an amended complaint which still named 79 defendants, but which contained a shorter and more general description of the alleged incidents.

On June 9, 1987, the district court sua sponte dismissed the action for the reasons stated in its earlier order. On July 7, 1987, Watson filed a motion "to vacate the judgment" under Fed. R. Civ. P. 59(e). The record does not indicate when or if Watson served the motion. The court denied the motion on July 10, 1987, and Watson filed a notice of appeal on July 23, 1987.

DISCUSSION

"The requirement of a timely notice of appeal is mandatory and jurisdictional." Munden v. Ultra-Alaska Associates, 849 F.2d 383, 386 (9th Cir. 1988). Moreover, regardless of whether the parties raise the issue of jurisdiction, this court must determine sua sponte whether the court has jurisdiction. In Re Christian Life Center, 821 F.2d 1370, 1373 (9th Cir. 1987).

A party in a civil action must file a notice of appeal within 30 days of the entry of the judgment or order from which the party is appealing. Fed. R. App. P. 4(a) (1). The district court entered judgment against Watson on June 11, 1987. Hence, Watson had 30 days or until July 13, 1987 to file his notice of appeal.¹  Watson did not file his notice of appeal until July 23, 1987, 42 days after the entry of the judgment. Accordingly, his notice of appeal from that judgment was untimely.

A party may toll the time to appeal by filing a timely motion to amend or alter the judgment under Fed. R. Civ. P. 59(e). In such a case, the time for filing the notice of appeal begins running only after the district court disposes of the Rule 59(e) motion. Fed. R. App. P. 4(a) (4) (iii). This tolling provision only applies, however, if the Rule 59(e) motion was timely. Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986). To be timely, the motion must be served within 10 days of the district court judgment. Fed. R. Civ. P. 59(e).

Watson's Rule 59(e) motion was due on June 25, 1987. See Fed. R. App. P. 4(a) (4) (iii).²  The district court received and filed Watson's "motion to vacate judgment" on July 7, 1987. Nevertheless, it is the date of service, not the date of filing, which controls the timeliness of a Rule 59(e) motion. See Fed. R. App. P. 4(a) (iii). Watson's motion is dated June 21, 1987, which is within the statutory period. Because Watson did not file a certificate of service, however, the record does not reveal whether Watson actually served his motion within the 10-day period. Watson may, however, have given the motion to prison officials between June 21 and June 25, thus satisfying the timeliness requirement. See Houston v. Lack, 108 S. Ct. 2379, 2385 (1988) (pro se prisoner's notice of appeal is timely if prisoner gave notice to prison authorities within time period, regardless of whether notice was actually filed within time period).

In any event, the district court would "not authorize expenditures for the cost of service of what appears to be a complete list of every staff member employed in plaintiff's unit whether named in the allegations of wrongdoing or not." We agree with this approach where as here, a pro se prisoner plaintiff has filed a frivolous complaint naming 79 prison officials as defendants. Because of the factual complexity and lack of adequate record we do not determine the jurisdictional issue as to the timeliness of the notice of appeal, Wolder v. United States, supra, but turn to the merits of the appeal to dispose of this case.

Watson moved the court below for a temporary restraining order to enjoin 79 named defendants from: (1) placing plaintiff in administrative segregation; (2) taking plaintiff's privileges; (3) taking plaintiff's "good time"; and, (4) harassing and "writing up" plaintiff. Watson further moved for an order to "expunge any and all negative or derogatory entries made in plaintiff's corrections file," and release himself from segregation with restoration of all privileges. Watson argues that such relief is required because "he is a true believer of a recognized religion, Sikh of the Arnrit sect," and his named defendants have discriminated against him "due to his religious beliefs."

Watson's amended complaint seemingly names every official he has encountered while incarcerated and many others. The amended complaint does not comply with Rule 8(a) Fed. R. Civ. P. which requires a short and plain statement of claims showing that the pleader is entitled to relief. Rule 8(e) (1) requires pleading averments to be "simple, concise, and direct." Watson's amended complaint is confusing, conclusory, and does not meet the requirements of Rule 8(a) and (e). See Nevijelu North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).

A district court may dismiss an action for a pro se party's failure to comply with Rules 8(a) and (e), provided that meaningful less drastic alternatives have been explored. Nevijel, 651 F.2d at 673-74. The district court satisfied this requirement by giving Watson 30 days to file an amended complaint. (Watson's original complaint included seven single spaced typewritten pages describing over 100 incidents which involved Watson and prison officials over a period of two years.) In addition, the district court informed Watson that it would not authorize expenditures for the cost of service "on what appears to be a complete list of every staff member employed in plaintiffs' unit whether named in the allegations of wrongdoing or not." Nonetheless, Watson's amended complaint still named 79 defendants, and merely contained a more general description of alleged incidents. We hold that the district court did not abuse its discretion in dismissing Watson's complaint for failure to comply with Fed. R. Civ. P. 8(a).

AFFIRMED.