Plush v. Washington State Department of Corrections

Ninth Circuit

Plush v. Washington State Department of Corrections

72 F. App'x 709

Court of Appeals for the Ninth Circuit·Decided August 19, 2003·No. No. 02-36034; D.C. No. CV-02-05280-FDB·Published

Opinion

MEMORANDUM

**

Cyrus N. Plush, a Washington state prisoner, appeals pro se the district court’s dismissal, pursuant to 28 U.S.C. § 1915, of his 42 U.S.C. § 1983 action alleging defendants denied him access to courts. We dismiss the appeal for lack of jurisdiction.

A timely filed notice of appeal is both mandatory and jurisdictional. See Browder v. Dir., Dep’t of Corrs., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). The procedures set forth in Fed. R.App. P. 4 are strictly construed, and there is no exception for prisoners proceeding pro se. Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir.1988). The district court entered judgment in this case on September 4, 2002, and Plush filed a “Request for Certificate of Appealability,” which we construe as a notice of appeal, more than 30 days later, on October 16, 2002. See Fed. R.App. P. 4(a)(1). Because this notice of appeal is untimely, see id,., we dismiss the appeal for lack of appellate jurisdiction, see Malone, 850 F.2d at 572.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Cyrus N. Plush, a Washington state prisoner, appeals pro se the district court’s dismissal, pursuant to 28 U.S.C. § 1915, of his 42 U.S.C. § 1983 action alleging defendants denied him access to courts. We dismiss the appeal for lack of jurisdiction.

A timely filed notice of appeal is both mandatory and jurisdictional. See Browder v. Dir., Dep’t of Corrs., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). The procedures set forth in Fed. R.App. P. 4 are strictly construed, and there is no exception for prisoners proceeding pro se. Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir.1988). The district court entered judgment in this case on September 4, 2002, and Plush filed a “Request for Certificate of Appealability,” which we construe as a notice of appeal, more than 30 days later, on October 16, 2002. See Fed. R.App. P. 4(a)(1). Because this notice of appeal is untimely, see id,., we dismiss the appeal for lack of appellate jurisdiction, see Malone, 850 F.2d at 572.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Plush v. Washington State Department of Corrections, 72 F. App'x 709 (9th Cir. 2003).

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