Dean Clifton Gilbert, Plaintiff-appellant, v. State of Arizona, et al., Defendants-appellees, 999 F.2d 542 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 999 F.2d 542 (9th Cir. 1993) Submitted July 6, 1993. *Decided July 9, 1993

Before TANG, POOLE and NORRIS, Circuit Judges.


Dean Clifton Gilbert appeals pro se the district court's judgment dismissing his 42 U.S.C. § 1983 prisoner civil rights action without prejudice. We have jurisdiction under 28 U.S.C. § 1291, and we review for an abuse of discretion. See Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989). We affirm.

Gilbert failed to file a timely notice of appeal from the district court's judgment. See Fed. R. App. P. 4(a) (1); Alexander v. Sacha, 439 F.2d 742 (9th Cir. 1971) (requirement of a timely notice of appeal is jurisdictional). Consequently, this court's appellate jurisdiction is limited to review of the denial of the motion for reconsideration. See Wages v. Commissioner, 915 F.2d 1230 (9th Cir. 1990) (appeal from denial of a motion to reconsider does not reach underlying judgment).

Gilbert contends that the district court erred in denying his motion to reconsider the district court's judgment dismissing his action without prejudice. We disagree. The district court dismissed appellant's action because he made no factual allegations as to appellees' personal involvement in his claim that prison officials were deliberately indifferent to his serious medical needs. Appellant cannot state a 42 U.S.C. § 1983 claim against appellees based on a respondeat superior theory. See Rizzo v. Goode, 423 U.S. 362, 376-77 (1976). An essential element of a § 1983 action is an allegation that the defendant's conduct deprived plaintiff of a federally protected right. See Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). Gilbert's complaint contains no such allegation. Absent such an allegation that the named prison officials were personally involved, Gilbert failed to state a claim under § 1983. Accordingly, the district court did not abuse its discretion in denying Gilbert's motion for reconsideration.



The panel finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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