Kirby, Jr. v. Ware ( 2017 )

FILED
UNITED STATES COURT OF APPEALS United States Court of Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ August 17, 2017
Elisabeth A. Shumaker
ELBERT KIRBY, JR.; CALEB Clerk of Court
MATTHEW MEADOWS,
Plaintiffs - Appellants,
No. 16-6142
v. (D.C. No. 5:14-CV-00906-M)
(W.D. Okla.)
ERIC WILLIAM ROBERTS; DERRICK
LYNN WARE; STEVEN KIRK; BILLY
FAUSETT; CHARLIE DOUGHERTY,
Lincoln County Sheriff; LINCOLN
COUNTY JAIL; LINCOLN COUNTY
SHERIFF’S DEPARTMENT,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
ELBERT KIRBY, JR.; CALEB
MATTHEW MEADOWS,
Plaintiffs - Appellants,
No. 16-6256
v. (D.C. No. 5:14-CV-00906-M)
(W.D. Okla.)
DERRICK LYNN WARE; STEVEN
KIRK; BILLY FAUSETT,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of these appeals. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
Plaintiffs Elbert Kirby, Jr. and Caleb Meadows, proceeding pro se, appeal the
district court’s grant of summary judgment and its denial of their motion for
reconsideration. In a separate appeal, they also challenge the court’s award of costs to
some of the defendants. We dismiss the appeal of the grant of summary judgment as
untimely. Exercising jurisdiction under 28 U.S.C. § 1291 over the remainder of the
appeal, we affirm the denial of Plaintiffs’ motion for reconsideration and the award of
costs.
In August 2014, Plaintiffs filed suit in the United States District Court for the
Western District of Oklahoma raising various claims against government officials arising
out of their arrest and booking on charges of obstructing an officer, speeding, and failing
to possess a valid driver’s license. The district court granted summary judgment for the
government defendants and entered judgment against Plaintiffs on March 31, 2016.
Plaintiffs filed a motion for reconsideration of the summary-judgment ruling on May 2,
2016, which the court denied on May 12, 2016. They filed a notice of appeal challenging
both rulings on May 26, 2016.
After entry of judgment the district-court clerk awarded costs for printing and
copying to some of the defendants in the amount of $52.11. Plaintiffs challenged this
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
2
award but the district court denied relief on August 4, 2016. Plaintiffs then filed another
notice of appeal—this one relating solely to the issue of costs—on August 24, 2016.
We dismiss as untimely Plaintiffs’ appeal from the grant of summary judgment.
See Lebahn v. Owens, 813 F.3d 1300, 1304 (10th Cir. 2016) (“This court has jurisdiction
only to review district court judgments from which a timely notice of appeal has been
filed.”). Although a notice of appeal ordinarily must be filed “within 30 days after entry
of the judgment or order appealed from,” Fed. R. App. P. 4(a)(1)(A), “a motion under
[Fed. R. Civ. P.] 59 or . . . 60 may toll a party’s time to file a notice of appeal,” Lebahn,
813 F.3d at 1304. But only if the motion is filed within 28 days of the judgment. See id.;
Fed. R. App. P. 4(a)(4)(A). Here, Plaintiffs’ motion for reconsideration was not filed
until May 2, 2016, more than 28 days after the entry of judgment on March 31, 2016.
They argue that they mailed their motion and that the date of mailing should constitute
the date of filing. But the date of mailing is considered the filing date only for prisoners,
see Fed. R. App. P. 4(c)(1), and Plaintiffs have not shown that they were prisoners at the
time. In any event, the record reflects that they mailed their motion on April 29, 2016—
still too late. Thus, the time to appeal the summary judgment was not tolled and their
May 26 notice of appeal is too late to challenge it.
On the other hand, Plaintiffs’ notice of appeal is timely with respect to the May 12
denial of their motion for reconsideration. See Lebahn, 813 F.3d at 1305 (“The district
court’s ruling on a Rule 60(b) motion is separately appealable from the district court’s
underlying judgment.”). But their appellate briefs, even construed liberally, see Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), do not challenge
3
this ruling. We therefore affirm the denial. See Coleman v. B-G Maint. Mgmt. of Colo.,
Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the opening brief are
deemed abandoned or waived.”).
That leaves only Plaintiffs’ timely appeal of the award of $52.11 in costs.
Plaintiffs contend that the district court erroneously awarded costs for copying expenses
relating to depositions that were not taken. Plaintiffs are correct on the law—such costs
should not be awarded. But they are wrong on the facts. Despite the district court’s
statement in its order approving costs that costs relating to depositions were awarded, the
record clearly shows that the $52.11 award was based on other costs. Although the
district court misspoke in its order, the award was correct.
We DISMISS the appeal of the district court’s grant of summary judgment,
AFFIRM the court’s denial of the motion for reconsideration, and AFFIRM the award
of costs. Plaintiffs’ request for their own costs is DENIED. Plaintiffs’ request to strike
any opposing briefs is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
4