Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

No. 89-16182.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and LEAVY, Circuit Judges, and STEPHENS,*  District Judge

MEMORANDUM** 

Plaintiff Reilly is a pro se prisoner. The district court dismissed his civil rights action on the ground that there was no demonstration of government action and therefore no basis for civil rights jurisdiction. We affirm.

BACKGROUND

Reilly brought this action pursuant to 28 U.S.C. § 1331 alleging the cause of action arises from violations of 18 U.S.C. §§ 1503, 1512 and 1513 and that violations of plaintiff's civil rights resulted. The complaint alleges that this Court has jurisdiction pursuant to 28 U.S.C. § 1343(3) and that plaintiff is entitled to declaratory and monetary relief. Plaintiff also moved for injunctive relief and for a Writ of Habeas Corpus Ad Testificandum. According to plaintiff's allegations, the named defendant, Debra Lynn Evans, is a United States citizen who is a ward of the Court and is currently serving a period of five years probation under the supervision of the Probation Division.

Plaintiff alleged that the district court had a jurisdictional basis for the action. However, the statute cited in the complaint, 28 U.S.C. § 1343(3), only provides for jurisdiction over claims that state officials have violated a constitutional right or a federal statute providing for equal rights. The district court dismissed the action, finding that plaintiff had failed to demonstrate that the defendant was in any way connected to or acting on behalf of the government. The court also denied the prayer for injunctive relief as well as the petition for habeas.

The court's judgment was entered on April 20, 1989. On May 1, 1989, plaintiff's notice of appeal, dated April 25, was filed. Subsequently, on May 4, 1989, appellant filed a timely motion for reconsideration, pursuant to Fed. R. Civ. P. 59(e), in the district court. See Fed. R. Civ. P. 6(e), 59(e). Thus, appellant's notice of appeal was rendered null and void. On May 9, the district court denied appellant's post judgment motion. Appellant then filed a second notice of appeal, which was dated June 6, but filed by the prison authorities on June 9, one day beyond the 30-day period prescribed by Fed. R. App. P. 4(a).

DISCUSSION

The issue presented to the panel is whether the recent Supreme Court decision in Houston v. Lack, 487 U.S. 266 (1988), applies outside of habeas cases. In Houston, the Supreme Court held that, for purposes of Fed.R.App.Pro. 4(a), a pro se prisoner will be considered to have filed his or her notice of appeal on submission to the prison authorities for mailing, because he or she had no control over the actual filing of the document. Houston specifically considered a petition for habeas corpus. At the time of the hearing, several other cases involving the Houston v. Lack issue were pending before various panels of the court.1  The panel voted to withhold a decision on the merits of the case until the jurisdictional issue was clarified.

On August 30, 1990, a panel composed of Judges Choy, Thompson, and Trott filed an opinion in Hostler v. Groves, 912 F.2d 1158, (9th Cir. 1990). The court held that Houston v. Lack did in fact apply beyond habeas corpus cases. Appellant stated under penalty of perjury that he turned over the document to the prison authorities on June 6, and this fact has not been controverted. The court therefore accepts appellant's notice of appeal, which was dated June 6, as timely. Consequently, we proceed to consider the merits of the case. Appellant has alleged that the defendant violated his civil rights by sending him a letter containing information regarding her probation. (It is unclear from the complaint exactly how the appellant considers himself to have been harmed by the actions of the defendant). However, as found by the trial court, the appellant has not shown how the defendant's actions can be construed as sufficient state action to constitute a jurisdictional basis under 28 U.S.C. § 1343(a) (3)2  or Sec. 1331.3  The appellant has apparently confused the issues of jurisdiction and state action, as he declares in his Motion for Reconsideration that so long as the action "falls under" the jurisdictional statute 28 U.S.C. § 1331, he need not show government action. The order of the district court is therefore AFFIRMED.

 *

The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the 9th Cir.R. 36-3

 1

The cases that were to consider the applicability of Houston 42 U.S.C. § 1983 actions are:

1) Hostler v. Groves, No. 88-2734 (submitted February 7, 1990)

2) Addleman v. Reed, No. 87-3897 (submitted February 20, 1990)

3) Willette v. Lewis, No. 89-15229 (submitted April 19, 1990).

 2

28 U.S.C. § 1343(a) (3) is the jurisdictional counterpart of 42 U.S.C. § 1983. To make out a cause of action under section 1983, a plaintiff must plead that (1) the defendant acting under color of state laws (2) deprived plaintiff of rights secured by the Constitution or federal statutes. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988)

 3

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) and succeeding cases, the Supreme Court has upheld the application of a federal cause of action for damages for unconstitutional conduct by federal officers. Jurisdiction in a Bivens-type action is based on 28 U.S.C. § 1331, federal question jurisdiction