Unpublished Disposition, 924 F.2d 1064 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1064 (9th Cir. 1989)

Andrew J. WALKER, Plaintiff-Appellant,v.STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS; Twin RiversFacility; Washington Federation of StateEmployees, Defendants-Appellees.

No. 89-35377.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 9, 1990.* Decided Jan. 30, 1991.

Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.


Andrew J. Walker appeals pro se from the magistrate's judgment in favor of the Washington State Department of Corrections and Twin Rivers Correction Center in Walker's Title VII action. We dismiss.


Walker brought a Title VII action alleging racial discrimination in his employment with the Washington State Department of Corrections and Twin Rivers Correction Center. After a bench trial, the magistrate1  found for the defendants and dismissed the action. Judgment was entered on March 13, 1989. Walker filed a post-judgment motion on March 20, 1989, labelling it as a Fed. R. Civ. P. 59(a) motion for a new trial. However, he failed to timely serve the motion upon the defendants. The magistrate denied the motion on April 25, 1989. Walker then filed a notice of appeal to this court on May 11, 1989.

Walker contends the magistrate erred by finding that Walker had failed to establish by a preponderance of the evidence that he was disciplined and discharged for racially discriminatory reasons and that he was subjected to a racially hostile work environment. As such, Walker attempts to appeal from the magistrate's judgment on the merits. We lack jurisdiction to decide this issue on appeal. Fed. R. App. P. 4(a) requires that appeals in civil cases be filed within 30 days after the date of entry of the judgment or order that is being appealed from. Walker's notice of appeal was filed almost two months after the entry of judgment, and therefore was too late unless his motion for a new trial was timely. It was not. Fed. R. Civ. P. 59(b) and Fed. R. Civ. P. 6(a) require that a motion for a new trial be served, not filed, within ten days of the judgment. Forster v. County of Santa Barbara, 896 F.2d 1146, 1147 n. 2 (9th Cir. 1990). Walker failed to serve the motion upon the defendants. Therefore, Walker's post-judgment Rule 59(a) motion cannot serve to toll the 30-day time allowance for filing the notice of appeal under the provisions of Fed. R. App. P. 4(a) (4) (iv). Accordingly, since Walker's notice of appeal was not filed within 30 days of the magistrate's judgment, we lack jurisdiction to hear Walker's appeal from this judgment.

Nonetheless, we note that this procedural issue was not raised by either party in their briefs, and that Walker is pro se in this appeal. Hence, we will comment on the merits of Walker's appeal. As to Walker's first contention, after having fully reviewed the record, we believe the magistrate was not clearly erroneous in determining that Walker had failed to establish by a preponderance of the evidence that the defendants had intentionally discriminated against him because of his race or subjected him to a racially hostile work environment.

As to Walker's second contention, alleging misrepresentation of facts and fraudulent testimony by adverse parties, we conclude that this allegation is entirely unsupported by any evidence. Walker has failed to indicate what facts and testimony were misrepresented.

Finally, Walker's third contention, alleging bias on the part of the magistrate, also is meritless. Magistrate Sweigert's handling of this case was fair and evenhanded. The magistrate showed no bias from any extrajudicial source, see United States v. Grinnell Corp., 384 U.S. 563, 583 (1966), and the comments which Walker attempts to characterize as prejudicial merely demonstrated familiarity with the evidence presented at trial. See Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1383 (9th Cir. 1984).


O'SCANNLAIN, Circuit Judge, specially concurring:

I would affirm on the merits.


The panel unanimously finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


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


The parties consented to have Magistrate Sweigert try the case