Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

MEMORANDUM

Rudulph, a California state prisoner, filed a 42 U.S.C. § 1983 action against prison officials. He alleged that prison doctors had violated his eighth and fourteenth amendment rights by mistreating his head injuries and by prescribing harmful medication. The district court dismissed the action without prejudice for Rudulph's failure to comply with its order that he amend his complaint to eliminate vague and conclusory allegations. The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We affirm.

We first address whether we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir. 1990) (Hostler), cert. denied, 59 U.S.L.W. 3581 (U.S. Feb. 26, 1991). Federal Rule of Appellate Procedure 4(a) (1) requires that notices of appeal "be filed with the clerk of the district court within 30 days after the date of entry of the judgment." Fed. R. App. P. 4(a) (1). Here, the district court judgment was entered on February 13, 1990, and Rudulph's notice of appeal was not filed until March 16, 1990. The Supreme Court has held, however, that a pro se prisoner's notice of appeal from a denial of a habeas corpus petition is deemed filed for purposes of Rule 4(a) (1) at the moment the prisoner delivers the notice to prison authorities for forwarding to the district court. Houston v. Lack, 487 U.S. 266 (1988). We have held that Houston applies as well to notices of appeal filed by pro se prisoners in section 1983 actions. Hostler, 912 F.2d at 1160-61. Uncontroverted evidence indicates that Rudulph gave his notice of appeal to prison authorities on March 11, 1990. Because Rudulph delivered the notice to prison authorities within 30 days after entry of the district court judgment, we have jurisdiction over this appeal.

Rudulph first alleges that the district court must be reversed for refusing his request for appointment of counsel. "Motions for the appointment of counsel under section 1915 are addressed to the sound discretion of the trial court and are granted only in exceptional circumstances." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981), cert. denied, 455 U.S. 958 (1982). The district court concluded that such "exceptional circumstances" did not exist, and denied Rudulph's request. On appeal, Rudulph does not argue that any exceptional circumstances justified the appointment of counsel; he merely asserts that the district court was wrong in denying his request. We conclude that the district court did not abuse its discretion in concluding that circumstances did not justify the appointment of counsel.

Rudulph also argues that the district court should not have dismissed his action. By order filed November 17, 1989, the district court dismissed Rudulph's complaint and gave him 30 days in which to file an amended complaint. The 30-day period expired without Rudulph filing an amended complaint, and the magistrate filed a recommendation that Rudulph's action be dismissed without prejudice. The magistrate's findings and recommendation were served on Rudulph, and contained notice that any objections to the report should be filed in the district court within 30 days. Rudulph failed to file any objections within that time period, and the district court dismissed Rudulph's action without prejudice pursuant to Fed. R. Civ. P. 41(b). We review a district court's order dismissing an action for failure to prosecute for abuse of discretion. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Rudulph has presented no valid reasons why he failed to file either an amended complaint or objections to the magistrate's findings and recommendation. We therefore conclude that the district court did not abuse its discretion in dismissing Rudulph's action without prejudice.

AFFIRMED.