Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 909 F.2d 1488 (9th Cir. 1990)

James CELLO-WHITNEY, Jr., Plaintiff-Appellant,v.Chase RIVELAND, Secretary, Department of Corrections,Defendant-Appellee.

No. 89-35592.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 1990.* Decided Aug. 2, 1990.

Before CYNTHIA HOLCOMB HALL, DAVID R. THOMPSON and LEAVY, Circuit Judges.

ORDER

James Cello-Whitney, Jr. ("Cello-Whitney"), a state prisoner, appeals pro se the district court's dismissal of his action under Fed. R. Civ. P. 41(b).1  We remand this case to the district court for a determination of whether Cello-Whitney's appeal was timely filed.

FACTS

On June 9, 1988, Cello-Whitney and Keith Closson filed a joint complaint against the Washington Department of Corrections for damages and injunctive relief pursuant to 42 U.S.C. § 1983. On July 5, 1989, the magistrate entered an order dismissing their action without prejudice. The district court clerk filed Cello-Whitney's notice of appeal on August 9, 1989.

DISCUSSION

Pursuant to Fed. R. App. P. 4(a) (1), Cello-Whitney had thirty days from July 5, 1989, to file his notice of appeal. This thirty-day time limit is jurisdictional. Miller v. Sumner, 872 F.2d 287, 288 (9th Cir. 1989). We have jurisdiction if Cello-Whitney's notice of appeal was filed on or before August 4, 1989.

A notice of appeal filed by a pro se prisoner is deemed filed when it is delivered to prison authorities for forwarding to the district court. Houston v. Lack, 487 U.S. 266, 270, 276 (1988). We are unable to determine from the record whether Cello-Whitney delivered his notice of appeal to the prison authorities on or before August 4, 1989. Cello-Whitney signed and dated his notice of appeal on August 2, 1989, two days prior to the deadline.2  But the district court did not file the notice of appeal until August 9, 1989.

Thus, we remand this case to the district court for it to determine the date that Cello-Whitney delivered his notice of appeal to prison authorities. Miller, 872 F.2d at 189. The district court is directed to make this required finding on or before August 31, 1990, and thereupon forward the finding to the clerk of this court.

Submission of this case is vacated pending receipt of the district court's finding. The panel of Judges Hall, Thompson and Leavy will decide this case upon completion of the action required by this remand.

REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 1

Although the notice of appeal in this case purports to include Cello-Whitney and his coplaintiff, Keith Closson, we have no jurisdiction over Closson's appeal, because he failed to sign the notice of appeal. Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986); Brady v. Smith, 656 F.2d 466, 467 n. 1 (9th Cir. 1981)

 2

The notice of appeal also shows that Cello-Whitney had the notice of appeal "submitted for copy" on August 2, 1989, and signed a certificate of service on August 7, 1989. However, neither of these facts helps establish when Cello-Whitney delivered his notice of appeal to prison authorities

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