JONQUIL THOMAS-WEISNER V. PATRICK COVELLO, ET AL, No. 22-55835 (9th Cir. 2023)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 21 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JONQUIL THOMAS-WEISNER, AKA Jonquil Weisner, U.S. COURT OF APPEALS No. 22-55835 D.C. No. 3:19-cv-01999-JAH-BGS Plaintiff-Appellant, MEMORANDUM* v. PATRICK COVELLO, Warden; LANCE ESHELMAN, Community Resource Manager, Defendants-Appellees, and CONNIE GIPSON, Warden, Director, CDCR; M. VOONG, Chief of Appeals, Defendants. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted November 14, 2023** Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). California state prisoner Jonquil Thomas-Weisner appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a free exercise claim. We dismiss the appeal for lack of jurisdiction. We lack jurisdiction to consider Thomas-Weisner’s contentions regarding the dismissal of his action because Thomas-Weisner’s notice of appeal was untimely as to the underlying judgment. See Fed. R. App. P. 4(a)(1)(A) (a notice of appeal must be filed within 30 days after entry of the judgment appealed from); Fed. R. App. P. 4(c)(1) (inmate’s notice of appeal is deemed filed when deposited in the institution’s internal mail system if accompanied by supporting declaration or evidence). Because Thomas-Weisner’s motion for relief under Federal Rule of Civil Procedure 60(b) was filed more than 28 days after the entry of judgment, it did not toll the time to file a notice of appeal. See Fed. R. App. R. 4(a)(4)(A)(vi). To the extent Thomas-Weisner seeks to appeal the district court’s denial without prejudice of his Federal Rule of Civil Procedure 60(b) motion, that is not an appealable order. See Defs. of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir. 2000) (order declining to entertain or grant a Rule 60(b) motion while an appeal is pending is a procedural ruling and not a final determination on the merits). DISMISSED. 2 22-55835
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