Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

ORDER OF LIMITED REMAND

Mary Adelia Evans, an Oregon state prisoner, appeals pro se the dismissal of her civil rights action against Oregon parole and prison officials for failure to prosecute. We remand this case to the district court for a determination of whether Evans' appeal was timely filed.

After the Oregon Board of Parole denied Evans' parole in June 1988 based on the results of a psychological evaluation, Evans filed a complaint in district court for release on parole from prison and $500,000 in punitive damages. The magistrate ordered the case dismissed for failure to prosecute. A judgment of dismissal was entered August 21, 1989. The district court clerk filed Evans' notice of appeal on September 25, 1989.

Civil appeals must be filed within thirty days after the date of entry of the judgment or order from which a party appeals. Fed. R. App. P. 4(a) (1). Evans asserts, and the defendants cannot dispute, that she mailed her notice of appeal to the district court on September 19, 1989, within the thirty-day period.

Evans' initial complaint appears to be both a civil rights claim under 28 U.S.C. § 1983 for damages based on her inability to get adequate psychological treatment in prison and a habeas corpus claim under 28 U.S.C. § 2254 for immediate release from prison to obtain the necessary treatment. See Preiser v. Rodriguez, 411 U.S. 475, 494 (1972); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1990). The Supreme Court has held that a pro se prisoner's notice of appeal is deemed timely filed for a habeas corpus action if submitted to prison authorities for forwarding to the district court within the time limit established by Fed. R. App. P. 4(a) (1). Houston v. Lack, 487 U.S. 266, 270-72 (1988). The Supreme Court reasoned that

the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise.... No matter how far in advance the pro se prisoner delivers his notice of appeal ..., he can never be sure that it will ultimately get stamped "filed" on time.

Houston, 487 U.S. at 271.

A prisoner encounters the same difficulties appealing other civil claims. Thus, we have held that a pro se prisoner's notice of appeal filed in non-habeas civil cases will also be timely if the prisoner submits the appeal to prison authorities for forwarding to the district court within the thirty days after entry of the final judgment or order, and the appeal is posted through the prison log system. Hostler v. Groves, No. 88-2734, slip op. 10107, 10113 (9th Cir. Aug. 30, 1990). Dropping the notice of appeal in a mailbox within the prison does not meet the filing exception for pro se prisoners established by the Supreme Court in Houston. Miller v. Sumner, 910 F.2d 638, 639 (9th Cir. 1990).

Neither party presents any evidence that prison authorities recorded the mailing date of Evans' appeal. Therefore, before we may consider this appeal, we must remand the case for a determination whether Evans gave her notice of appeal to prison authorities within the thirty-day requirement of Fed. R. App. P. 4(a) (1).

It is therefore ordered that this appeal is remanded for a limited purpose to the district court to enable that court, within sixty days of the date of the filing of this order, to conduct such proceedings as may be necessary and to make findings as to whether Evans' notice of appeal was posted through the prison log system within the applicable thirty-day filing period. See Miller, 910 F.2d 638, 639. This case shall be returned to this panel after the district court has made the necessary findings.