Frazier v. Miller ( 2015 )

  •                                                                                   FILED
                                                                          United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                          Tenth Circuit
                                 FOR THE TENTH CIRCUIT                         December 2, 2015
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
          Plaintiff - Appellant,
                                                                No. 15-1231
    v.                                             (D.C. No. 1:14-CV-02766-CMA-MJW)
                                                               (D. Colorado)
    VICKI LEWIS, Librarian, CCCF,
          Defendants - Appellees.
                                 ORDER AND JUDGMENT*
    Before KELLY, LUCERO, and McHUGH, Circuit Judges.
          After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in 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.
          Plaintiff Keith Frazier, a Colorado prisoner appearing pro se,1 appeals from the
    district court’s entry of judgment in favor of Defendants Michael Miller and Vicki
             This order and judgment is not binding precedent, except under the doctrines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.
             Because Mr. Frazier appears pro se, we construe his filings liberally. See
    Garza v. Davis, 
    596 F.3d 1198
    , 1201 n.2 (10th Cir. 2010).
    Lewis. Upon review of Mr. Frazier’s appeal, the panel identified a potential defect in
    this court’s appellate jurisdiction.
           Rule 4 of the Federal Rules of Appellate Procedure requires that a party file
    notice of appeal with the district court within thirty days of entry of judgment. Fed.
    R. App. P. 4(a)(1)(A); 28 U.S.C. § 2107(a). The court of appeals normally lacks
    jurisdiction to consider an appeal if notice of appeal is not filed within the thirty days
    mandated by Rule 4. See Bowles v. Russell, 
    551 U.S. 205
    , 214 (2007). But Rule 4
    contains an exception for prisoners, such as Mr. Frazier, currently confined to an
    institution. See Fed. R. App. P. 4(c). For prisoners, Rule 4(c)(1) provides that notice
    of appeal “is timely if it is deposited in the institution’s internal mail system on or
    before the last day for filing.” It further provides that a prisoner can prove the date on
    which he deposited his notice of appeal by attaching a signed declaration that states
    the date on which the prisoner deposited the notice of appeal in the prison mail
    system, declares that first-class postage has been prepaid, and includes language
    substantially similar to the following: “I declare under penalty of perjury that the
    foregoing is true and correct. Executed on [date].” See Fed. R. App. P. 4(c)(1); 28
    U.S.C. § 1746(2).
           In this case, the district court entered final judgment in Mr. Frazier’s case on
    May 29, 2015. But Mr. Frazier’s notice of appeal was not received by the district
    court until July 1, 2015, outside the normal thirty-day limit. Mr. Frazier’s notice of
    appeal was not accompanied by a Rule 4(c)-compliant declaration. Accordingly, the
    panel issued an order to show cause directing Mr. Frazier to address the timeliness of
    his appeal within 21 days and indicating that a failure to remedy this jurisdictional
    defect would result in dismissal of the appeal without further notice. See 10th Cir. R.
            Mr. Frazier has failed to respond to the panel’s order to show cause.
    Accordingly, we dismiss the appeal for lack of jurisdiction. Mr. Frazier’s motion to
    proceed in forma pauperis is granted, but we remind him of his obligation to continue
    making partial payments until the fee has been paid in full.
                                                ENTERED FOR THE COURT
                                                Carolyn B. McHugh
                                                Circuit Judge

Document Info

DocketNumber: 15-1231

Filed Date: 12/2/2015

Precedential Status: Non-Precedential

Modified Date: 12/2/2015