Peters v. Williams , 353 F. App'x 136 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
November 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
CALVIN DEAN PETERS,
Plaintiff-Appellant,
v. No. 08-2302
(D.C. No. 1:08-CV-00268-MCA-WDS)
JOE WILLIAMS; (D. N.M.)
VINCENT WIGGINS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
Plaintiff-appellant Calvin Dean Peters filed a claim under 42 U.S.C. § 1983alleging that, since 2000, the reduction in the variety of legal materials and
library facilities in New Mexico’s prisons has effectively denied him his right to
access the courts as guaranteed by the First Amendment. Holding that plaintiff
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
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not binding precedent, except under the doctrines of law of the case, res judicata,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, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
did not allege active interference with his preparation and filing of papers, the
district court dismissed the complaint under the authority of 28 U.S.C.
§ 1915(e)(2) and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which
relief can be granted. We affirm.
We first pause to examine our jurisdiction given that plaintiff’s notice of
appeal was untimely. See United States v. Gonzales, 531 F.3d 1198, 1200
(10th Cir. 2008) (“We have an independent duty to examine our appellate
jurisdiction.”) Under Fed. R. App. P. 4(a)(1)(A), the thirty-day deadline for filing
a timely appeal in this case expired on October 30, 2008. The deadline for filing
a timely Rule 4(a)(5) motion for extension of time expired on Monday, December
1, 2008. See Fed. R. App. P. 26(a)(3); see also Fed. R. App. P. 4(a)(5)(C) (“No
extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or
10 days after the date when the order granting the motion is entered, whichever is
later.”).
Plaintiff filed a timely Rule 4(a)(5) motion in the district court on
November 5, 2008. On November 12, 2008, the district court granted the motion,
mistakenly giving plaintiff “the additional thirty (30) days provided by
Fed. R. App. P.4(a)(5)(C) to file a notice of appeal.” R. at 57. Pursuant to
Rule 4(a)(5)(C), the district court only had authority to grant an extension until
Monday, December 1, 2008, but had inadvertently granted an extension to
Monday, December 15, 2008.
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Plaintiff’s notice of appeal was received by this court on December 16,
2008, but the postmark on the “legal mail” envelope from the prison is December
11, 2008. Thus, plaintiff’s notice was filed within the time allowed by the district
court’s order granting him an extension of time to file. See Price v. Philpot,
420 F.3d 1158, 1165 (10th Cir. 2005) (holding that “an inmate who places a
federal civil rights complaint in the prison’s internal mail system will be treated
as having ‘filed’ that complaint on the date it is given to prison authorities for
mailing to the court”).
Despite all of this confusion, the fact remains that plaintiff’s notice of
appeal was untimely. The filing of a timely notice of appeal in a civil case is
jurisdictional. Bowles v. Russell, 551 U.S. 205, 214 (2007). Plaintiff argues that
his lateness should be excused because he filed his notice in reliance on the order
from the district court. That rationalization was rejected in Bowles, and we reject
it here. See id. at 213-14 (refusing to carve out an equitable exception to the
jurisdictional requirement that a litigant file a timely notice of appeal, even where
the litigant has relied to his detriment on an order from a district court mistakenly
giving him too much time to file his notice).
The fact that the district court’s error will not excuse the late notice of
appeal, however, will not doom plaintiff’s cause. Because plaintiff filed a timely
Rule 4(a)(5) motion, we will construe that motion as the functional equivalent of
a timely notice of appeal that became effective when the district court entered the
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November 12, 2008 order granting the motion. See Smith v. Barry, 502 U.S. 244,
248-49 (1992) (noting that “[i]f a document filed within the time specified by
Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal”).
Turning to the merits, we agree with the district court that plaintiff has
failed to state a claim for relief. In order to state a claim, plaintiff must allege
“relevant actual injury” resulting from defendants’ active interference with his
attempts to prepare and file legal documents. See Lewis v. Casey, 518 U.S. 343,
350-51 (1996). Plaintiff has not alleged such active interference. To the
contrary, we note that plaintiff’s complaint lists several cases which, while
perhaps not resulting in the outcomes plaintiff desired, clearly establish that
plaintiff has been able to prepare and file his legal claims. The law requires no
more.
The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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