McIntosh v. Green ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 5 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
PATRICK LYNN McINTOSH,
Plaintiff-Appellant,
v. No. 03-6038
JAMES GREEN and KENNETH (D.C. No. 99-CV-1692-HE)
PALMER, Oklahoma Police Department (W.D. Oklahoma)
Officers,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
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This order and judgment is not binding precedent, except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Patrick McIntosh, appearing pro se, appeals the judgment entered in favor
of defendants on his excessive force claims under 42 U.S.C. § 1983. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
McIntosh filed this action pursuant to § 1983 alleging that defendants violated his
constitutional rights during a traffic stop and ensuing search and arrest. The district court
granted summary judgment in favor of defendants with respect to all of the claims
asserted in McIntosh’s complaint except his excessive force and property damage claims.
With respect to those claims, the district court appointed counsel and set the matter for
trial. At trial, the jury found in favor of defendants and against McIntosh on those claims.
Following entry of judgment, the district court allowed McIntosh’s appointed
counsel to withdraw. McIntosh filed a pro se motion asserting his intent to appeal, asking
for a copy of the trial transcript at public expense, and requesting appointment of counsel
to perfect his appeal. The district court authorized McIntosh to appeal without
prepayment of the appellate filing fee, denied his requests for appointment of counsel and
for a copy of the trial transcript at government expense, and directed him to file a notice
of appeal that complied with Federal Rule of Appellate Procedure 3. McIntosh attempted
to comply with the district court’s directive by filing a pro se supplement to his original
motion for appeal.
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II.
Defendants assert that McIntosh never filed a timely notice of appeal as required
by Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure to invoke appellate
jurisdiction. While appellees are correct that a timely notice of appeal is mandatory and
jurisdictional, the technical requirements of the notice itself are liberally construed to
avoid injustice. See Smith v. Barry, 502 U.S. 244, 248-49 (1992). McIntosh’s motion for
appeal and his supplement to that motion, though far from perfect, conveyed his intent to
appeal from the judgment entered on the jury’s verdict and are thus sufficient for this
court to exercise jurisdiction and reach the merits of his appeal. E.g., Knox v. Wyoming,
959 F.2d 866, 867-68 (10th Cir. 1992) (treating pro se application for certificate of
probable cause as a misfiled notice of appeal); Hoover v. United States, 268 F.2d 787,
788-89 (10th Cir. 1959) (treating motion to proceed on appeal in forma pauperis as notice
of appeal).
We turn to the merits of the appeal. Although it is apparent from McIntosh’s
appellate pleadings that he disagrees with the jury’s verdict, he fails to point to any
evidentiary or other rulings by the district court that might give rise to reversible error.
We therefore find no basis for reversing the judgment of the district court. Likewise,
because McIntosh has failed to identify a substantial question deserving of appellate
review, we find no basis for granting his request for a trial transcript at government
expense. See 28 U.S.C. § 753(f) (outlining standards for provision of trial transcript at
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government expense).
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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