Paulo v. Williams

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUSTIN PAULO, No. 24-1083 D.C. No. Plaintiff - Appellee, 2:19-cv-00474-CDS-NJK v. MEMORANDUM* BRIAN WILLIAMS; JULIE MATOUSEK; MONIQUE HUBBARD-PICKETT; BOB FAULKNER; Doctor ALBERT CASTELLAN; Doctor LOUISA SANDERS; HAROLD WICKHAM; JAYMIE CABRERA; JEREMY BEAN; JULIO CALDERIN; Doctor MARTIN NAUGHTON; MICHAEL MINEV; N. PERET; Doctor CRAIG ROSE; RICHARD SNYDER,

Defendants - Appellants.

Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding

Argued and Submitted June 6, 2025 Submission Withdrawn July 10, 2025 Resubmitted December 3, 2025 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HURWITZ, MILLER, and SUNG, Circuit Judges.

In this 42 U.S.C. § 1983 action, Justin Paulo asserts that Nevada Department

of Corrections (“NDOC”) officials violated the First, Eighth, and Fourteenth

Amendments and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”). The district court granted summary judgment to Defendants on

Paulo’s Eighth Amendment claim based on inadequate outdoor exercise time,

concluding that Paulo had failed to exhaust the prison’s grievance process before

he filed his initial complaint. The district court granted summary judgment to

Paulo on his Free Exercise and RLUIPA claims and denied Defendant Julio

Calderin qualified immunity from damages on Paulo’s Free Exercise claim. The

court then granted Paulo’s motion for certification of final judgment on his outdoor

exercise claim, and Paulo timely appealed (Appeal No. 24-23). Approximately two

months later, Defendants appealed the district court’s denial of qualified immunity

(Appeal No. 24-1083).

In a memorandum disposition filed on July 10, 2025, we vacated the

summary judgment to Defendants on Paulo’s outdoor exercise claim (Appeal No.

24-23) because the district court erred in holding that Paulo failed to exhaust the

prison’s grievance process as required by the Prison Litigation Reform Act

(“PLRA”). We also severed Defendants’ appeal of the district court’s denial of

qualified immunity (Appeal No. 24-1083) and held it in abeyance pending issuance

2 24-1083 of the mandate in McNeil v. Gittere, No. 23-3080. The mandate has issued in

McNeil. Accordingly, the case is returned to active status. Applying our holding

in McNeil, we conclude that Defendants’ appeal is untimely and dismiss it for lack

of jurisdiction.

“Timeliness of an appeal in a civil case is jurisdictional . . . and is defined by

28 U.S.C. § 2107.” McNeil v. Gittere, 150 F.4th 1205, 1207—08 (9th Cir. 2025)

(citing Bowles v. Russell, 551 U.S. 205, 209–10 (2007)). Section 2107(a) provides

that “no appeal shall bring any judgment, order or decree in an action, suit or

proceeding of a civil nature before a court of appeals for review unless notice of

appeal is filed[ ] within thirty days after the entry of such judgment, order or

decree.” 28 U.S.C. § 2107(a). Defendants filed their notice of cross-appeal on

February 23, 2024, more than 30 days after the district court’s September 25, 2023

summary judgment order denying qualified immunity.

Defendants argue that their appeal is nonetheless timely because the district

court never issued a “separate document” on its denial of qualified immunity.

According to Defendants, under Federal Rule of Civil Procedure 58, when the

district court does not file a “separate document” on a judgment, “entry” for the

purposes of the deadline to appeal occurs 150 days after the order was entered on

the docket. See Fed. R. Civ. P. 58(c)(2) (“[J]udgment is entered . . . if a separate

document is required, when the judgment is entered in the civil docket under Rule

3 24-1083 79(a) and the earlier of these events occurs: (A) it is set out in a separate document;

or (B) 150 days have run from the entry in the civil docket.”). Therefore,

Defendants argue, the deadline to appeal the district court’s denial of qualified

immunity was 180 days after entry of judgment on the docket—30 days after the

150 days allowed by Rule 58.

McNeil forecloses Defendants’ argument. As we explained in McNeil,

“[u]nder 28 U.S.C. § 2107(a)’s plain language, ‘entry’ of an immediately

appealable collateral order occurs when the district court files the order on the civil

docket.” 150 F.4th 1205, 1210—11 (9th Cir. 2025). “To the extent the Rules

allow more time to appeal collateral orders with no corresponding separate

document, the Rules conflict with the statute and are thus invalid.” Id. at 1209.

Because Defendants filed their notice of cross-appeal more than 30 days after entry

of the district court’s summary judgment order, the appeal is untimely, and we lack

jurisdiction to review the case.

The appeal is DISMISSED.

4 24-1083