JONQUIL THOMAS-WEISNER, AKA Jonquil Weisner v. PATRICK COVELLO, Warden; LANCE ESHELMAN, Community Resource Manager

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONQUIL THOMAS-WEISNER, AKA
Jonquil Weisner,
Plaintiff-Appellant,
v.
PATRICK COVELLO, Warden; LANCE
ESHELMAN, Community Resource
Manager,
Defendants-Appellees,
and
CONNIE GIPSON, Warden, Director,
CDCR; M. VOONG, Chief of Appeals,
Defendants.
No. 22-55835
D.C. No. 3:19-cv-01999-JAH-BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-55835
California state prisoner Jonquil Thomas-Weisner appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a free
exercise claim. We dismiss the appeal for lack of jurisdiction.
We lack jurisdiction to consider Thomas-Weisner’s contentions regarding
the dismissal of his action because Thomas-Weisner’s notice of appeal was
untimely as to the underlying judgment. See Fed. R. App. P. 4(a)(1)(A) (a notice
of appeal must be filed within 30 days after entry of the judgment appealed from);
Fed. R. App. P. 4(c)(1) (inmate’s notice of appeal is deemed filed when deposited
in the institution’s internal mail system if accompanied by supporting declaration
or evidence). Because Thomas-Weisner’s motion for relief under Federal Rule of
Civil Procedure 60(b) was filed more than 28 days after the entry of judgment, it
did not toll the time to file a notice of appeal. See Fed. R. App. R. 4(a)(4)(A)(vi).
To the extent Thomas-Weisner seeks to appeal the district court’s denial
without prejudice of his Federal Rule of Civil Procedure 60(b) motion, that is not
an appealable order. See Defs. of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.
2000) (order declining to entertain or grant a Rule 60(b) motion while an appeal is
pending is a procedural ruling and not a final determination on the merits).
DISMISSED.

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