Andreozzi v. Civigenics

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 18 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ARMAND ANDREOZZI,
Plaintiff - Appellant,
v.
CIVIGENICS; STEVE JAMES, No. 02-1287
Administrator; MR. MUREN, (D.C. No. 01-MK-1162 (PAC))
Assistant Administrator (FNU); (D. Colorado)
CASE MANAGER, (F & LNU);
CIVIGENICS, ADMINISTRATOR
(F & LNU); ASSISTANT
ADMINISTRATOR (F & LNU),
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , 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This order and judgment is not binding precedent, except under the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.
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.
Plaintiff-appellant Armand Andreozzi, an inmate proceeding pro se, appeals
the district court’s decision dismissing his Bivens 1 claims challenging his pretrial
detention. Because the district court has not yet entered a final, appealable
decision, however, we must dismiss this appeal for lack of appellate jurisdiction.
See 28 U.S.C. § 1291.
The magistrate judge issued her report and recommendation May 2, 2002,
giving the parties ten days to file any objections. See Fed. R. Civ. P. 72(b).
Andreozzi then filed a motion to enlarge the time he had to file his objections.
See generally Houston v. Lack , 487 U.S. 266, 268, 270, 276 (1988) (holding pro se
inmate’s notice of appeal deemed filed when he gives it to prison officials); Dunn
v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (applying Houston to inmate’s
filing objections to magistrate’s report). Because it was not yet aware that
Andreozzi had requested additional time to file his objections, however, the
district court, on May 23, 2002, adopted the magistrate judge’s report and
recommendation, after noting that neither party had filed any objections. That
same day, the district court received Andreozzi’s motion to enlarge his time to
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics ,
403 U.S. 388 (1971).
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object. The district court then granted Andreozzi’s motion, on June 14, 2002,
giving him an additional twenty days from the date of that order to file his
objections. Andreozzi, however, apparently then unaware that the district court
had granted him additional time to object, see, e.g., Appellant’s Opening Br. at 5,
filed his notice of appeal instead. This appeal followed. Even now, neither party
appears to be aware that the district court granted Andreozzi additional time to
object. See id. at 5 (arguing district court should have granted motion to enlarge
time to object); Appellant’s Reply Br. at 1-2 (same); Appellees’ Answer Br. at 3-4
(arguing district court did not have to grant motion to enlarge time to object).
Because the district court has never taken any further action in this case,
after granting Andreozzi additional time to file his objections, there is currently
no final decision from which Andreozzi can appeal. Cf. Trotter v. Regents of
Univ. of N. M., 219 F.3d 1179, 1183 (10th Cir. 2000) (noting district court clearly
did not consider final its order giving plaintiff ten days to amend her complaint).
We, therefore, must DISMISS this appeal for lack of appellate jurisdiction and
REMAND this cause to the district court.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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