L. Romeo Hardin v. John Mathes , 344 F. App'x 290 ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3137
    ___________
    L. Romeo Hardin,                     *
    *
    Appellant,              *
    *
    Jeffrey Grafton; Saleem Hamilton;    *
    Maurice Campbell,                    *
    *
    Plaintiffs,             *
    *
    v.                            *
    *
    John Mathes; William Sperflage; John *
    Emmett; Clarence Raymond Petrie;     *
    Dave DeGrange; David Tadman; Gregg *
    Colven; Joy Kuper; Mike Cutler;      *
    Unknown Officials; Unknown           *
    Officials, Unknown Officials K9;     *
    Debra Nichols; Lt Dan George; Mike   *
    Petrie; Todd Eaves; Bill Wilke,      *
    *
    Appellees.              *
    ___________                              Appeals from the United States
    Distirct Court for the Southern
    No. 07-3140                              District of Iowa.
    ___________
    L. Romeo Hardin; Jeffrey Grafton,   *
    *    [UNPUBLISHED]
    Plaintiffs,             *
    *
    Saleem Hamilton,                       *
    *
    Appellant,                *
    *
    Maurice Campbell,                      *
    *
    Plaintiff,                *
    *
    v.                              *
    *
    John Mathes; William Sperflage;        *
    John Emmett; Clarence Raymond          *
    Petrie; Dave DeGrange; David           *
    Tadman; Gregg Colven; Joy Kuper;       *
    Mike Cutler; Unknown Officials;        *
    Unknown Officials, Unknown             *
    Officials K9; Debra Nichols; Lt Dan    *
    George; Mike Petrie; Todd Eaves;       *
    Bill Wilke,                            *
    *
    Appellees.                *
    ___________
    Submitted: August 24, 2009
    Filed: September 1, 2009
    ___________
    Before BYE, BOWMAN, and BENTON, Circuit Judges.
    ___________
    PER CURIAM.
    -2-
    In these consolidated appeals, Iowa inmates L. Romeo Hardin and Saleem
    Hamilton appeal the district court’s1 entry of adverse judgment following a jury trial
    in their 42 U.S.C. § 1983 action. In No. 07-3137, we reject Hardin’s contention that
    he did not waive his right to proceed before an Article III judge. The record shows
    that standby counsel signed a document reflecting plaintiffs’ consent to proceed
    before a magistrate judge. Further, Hardin did not identify this as an issue in his
    postjudgment motions or in his document listing numerous issues for appellate review.
    As to the merits, without a trial transcript we cannot review his challenges to the
    district court’s evidentiary rulings. See Schmid v. United Bhd. of Carpenters &
    Joiners, 
    827 F.2d 384
    , 386 (8th Cir. 1987) (per curiam).
    In No. 07-3140, Hamilton’s separately filed notice of appeal was untimely. See
    Fed. R. App. P. 4(a)(1),(3) (time limits for filing notice of appeal in civil case); Dieser
    v. Cont’l Cas. Co., 
    440 F.3d 920
    , 923 (8th Cir. 2006) (jurisdictional issues will be
    raised sua sponte if there is indication jurisdiction is lacking; timely notice of appeal
    is mandatory and jurisdictional); see also Porchia v. Norris, 
    251 F.3d 1196
    , 1198 (8th
    Cir. 2001) (inmate bears burden of proving his entitlement to benefit of prison
    mailbox rule); Burgs v. Johnson County, Iowa, 
    79 F.3d 701
    , 702 (8th Cir. 1996) (per
    curiam) (untimely notice of appeal cannot serve as motion for extension of time to file
    appeal).
    Accordingly, in Hardin’s appeal we affirm, see 8th Cir. R. 47B, and we also
    deny his pending motion. We dismiss Hamilton’s appeal for lack of jurisdiction.
    ______________________________
    1
    The Honorable Ross A. Walters, United States Magistrate Judge for the
    Southern District of Iowa, to whom the case was referred for final disposition by
    consent of the parties pursuant to 28 U.S.C. § 636(c).
    -3-