Unpublished Disposition, 904 F.2d 40 (9th Cir. 1989)

MEMORANDUM^*** 

This is an appeal by a state prisoner from dismissal of his civil rights action brought pursuant to 42 U.S.C. § 1983. In his complaint, Cuffle charged Arizona prison officials with several violations of civil rights, including invasion of his right of privacy and the infliction of cruel and unusual punishment. Cuffle claimed that the defendants denied him the "right" to see a male doctor rather than a female doctor for the purpose of having his "lower body parts" examined, that he is often exposed to nude viewing by female nurses and guards, and that the defendants obstructed his access to the courts by refusing to give him the names of two female nurses who may have seen him nude and whom he wishes to sue.

The district court dismissed the complaint and the action, denying damages and injunctive relief, on December 6, 1988. On December 21, 1988, fifteen days after the lower court's order and judgment were entered, Cuffle filed a motion to vacate judgment. The court denied the motion to vacate on March 22, 1989, and the plaintiff filed his notice of appeal on March 29, 1989.

This court lacks jurisdiction over Cuffle's attempted appeal. Rule 59(e), Fed. R. Civ. P. states that a motion to vacate must be filed "not later than 10 days after entry of the judgment." Thus, Cuffle's motion to vacate filed on December 21, 1988, fifteen days after entry of judgment, was not timely. A timely motion to vacate tolls the running of time to file a notice of appeal, but an untimely motion under Rule 59(e) has no such tolling effect. Rule 4(a), Fed. R. App. P., states that a party's notice of appeal must be filed within thirty days of the date of judgment. Thus, in order to effectuate an appeal from the judgment, Cuffle was required to file his notice of appeal within thirty days after December 6, 1988. This he failed to do.

Although the district court should have denied the motion to vacate as untimely, it considered the motion and ultimately entered an order denying it on other grounds on March 22, 1989. Cuffle filed a notice of appeal within thirty days after entry of that order. Nevertheless, the requirement that a notice of appeal be filed within thirty days of entry of judgment is jurisdictional and this court never obtained jurisdiction over Cuffle's attempted appeal.

Since there is no exception to Rule 4(a) for prisoners proceeding pro se, this court is without jurisdiction to hear this case barring "unique circumstances" warranting a contrary findings. Malone v. Avenenti, 850 F.2d 569, 574 (9th Cir. 1988). The "unique circumstances" doctrine allows courts to--

permit an appellant to maintain an otherwise untimely appeal in unique circumstances in which the appellant reasonably and in good faith relied upon judicial action that indicated to the appellant that his assertion of his right to appeal would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity.

Id. (Quoting United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1268 (9th Cir. 1985) (citation omitted) (emphasis in original)).

If the district court had immediately denied the motion to vacate because of untimeliness, there might still have been time for Cuffle to file a notice of appeal before thirty days had expired after entry of judgement. The district court apparently overlooked the fact that Cuffle's Rule 59(e) motion was untimely and erroneously entertained it. Even so, the only relevant "judicial action" in this case--of an affirmative nature--was the judge's denial of a motion for extra time to file affidavits issued on March 1, 1989, and his denial of the motion to vacate issued on March 22, 1989. These "actions" fall well outside the thirty days provided in Rule 4(a), and thus the "unique circumstances" doctrine is inapplicable to this case.

The appeal is DISMISSED for lack of jurisdiction.