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Walker v. Whitley

filed*fn*: August 28, 1992.

ANDREW JOHN WALKER, PLAINTIFF-APPELLANT,
v.
H. L. WHITLEY, CHARLES L. WOLFF, AND LYNN DAILY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-86-508-ECR. Edward C. Reed, Jr., District Judge, Presiding

Before: Brunetti, Rymer, and Kleinfeld, Circuit Judges.

MEMORANDUM

Andrew John Walker, a federal prisoner housed in Nevada, appeals pro se the district court's summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action. We dismiss this appeal for lack of jurisdiction.

Notices of appeal by pro se prisoners are deemed filed when delivered to prison authorities. See Houston v. Lack, 487 U.S. 266, 275 (1988). For Houston v. Lack to apply, a prisoner must deliver his notice of appeal to prison authorities so that authorities may post it through the prison log system. Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990) (evidence that notice of appeal was mailed in regular mailbox, instead of the prison mail log system, is insufficient).

Here, the district court gave Walker the opportunity to submit evidence that the notice of appeal was posted through the prison log system. Walker provided evidence only that some document was mailed to the defendants' attorneys, not to the district court. The district court concluded that Walker had not provided sufficient evidence that his notice of appeal was logged through the prison mail system. We hold that the district court did not err by finding that Walker's notice of appeal was not timely. See id.

Walker contends that the prison logs only correspondence to attorneys and particular court officials, but does not log mail addressed to courts generally. This contention has some support in the record. The district court noted that "according to documentation provided by plaintiff . . . the mailroom at the prison only records addresses of mail sent to a specific attorney or court official but not to courts in general." Regardless, even if Walker did produce evidence that his notice of appeal was timely filed, we would affirm the district court's summary judgment for the reasons stated in the district court's order.

DISMISSED.

Disposition

DISMISSE ...


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