Stengel v. NM Corrections Dept. ( 2015 )


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  •                                                                                    FILED
                                                                           United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                           Tenth Circuit
    
                                 FOR THE TENTH CIRCUIT                          December 7, 2015
                             _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
    BRIAN STENGEL,
    
          Plaintiff - Appellant,
    
    v.                                                    Nos. 15-2099 & 15-2136
                                                    (D.C. No. 2:14-CV-01058-RB-SCY)
    NEW MEXICO CORRECTIONS                                      (D. N. Mex.)
    DEPARTMENT; GERMAN FRANCO,
    Warden of Penitentiary of New Mexico;
    GARY MARCIEL, title unknown;
    MICHELLE BOYER, Grievance Officer;
    KATHY TRUJILLO, Classification
    Supervisor; JIM BREWSTER, Lead
    Counsel, sued in ther individual and
    professional capacities,
    
          Defendants - Appellees.
                          _________________________________
    
                                 ORDER AND JUDGMENT*
                             _________________________________
    
    Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                     _________________________________
    
          Pro se appellant Brian Stengel attempts to bring two appeals.1
    
    
          *
            After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
    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 This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and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.
          1
            Because Mr. Stengel is proceeding pro se, we construe his filings liberally.
    See Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (per curiam); see also United States
           The first—15-2099— concerns a complaint he filed against prison officials under
    
    42 U.S.C. § 1983 when he was a New Mexico state prisoner. The district court dismissed
    
    it as frivolous under 28 U.S.C. § 1915(e)(2) and for failure to state a claim under Federal
    
    Rule of Civil Procedure (“FRCP”) 12(b)(6). Mr. Stengel filed a notice of appeal, but not
    
    until the 30-day deadline to do so had expired under 28 U.S.C. § 2107(a) and Federal
    
    Rule of Appellate Procedure (“FRAP”) 4(a)(1)(A).
    
           The second appeal—15-2136—is from the district court’s order denying Mr.
    
    Stengel’s motion under FRAP 4(a)(6) to reopen the time to appeal the dismissal of his
    
    § 1983 complaint.
    
           Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
    
    denial of the motion to reopen in 15-2136 and dismiss the appeal in 15-2099 for lack of
    
    jurisdiction.
    
           Mr. Stengel’s appeal in 15-2099 is untimely. The district court issued its order
    
    dismissing the complaint and also entered judgment under FRCP 58 on May 26, 2015. A
    
    timely notice of appeal needed to be filed by June 25, 2015. Mr. Stengel filed his notice
    
    of appeal on July 8, 2015—13 days after the filing deadline had expired.
    
           The Supreme Court has “ma[d]e clear that the timely filing of a notice of appeal in
    
    a civil case is a jurisdictional requirement.” Bowles v. Russell, 
    551 U.S. 205
    , 214 (2007);
    
    see Allender v. Raytheon Aircraft Co., 
    439 F.3d 1236
    , 1239 (10th Cir. 2006). We
    
    therefore lack jurisdiction in 15-2099 unless Mr. Stengel can show he satisfied the
    
    v. Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009) (“[W]e must construe [a pro se
    litigant’s] arguments liberally; this rule of liberal construction stops, however, at the
    point at which we begin to serve as his advocate.”).
                                               -2-
    requirements in FRAP 4(a)(5) for an extension of time or in FRAP 4(a)(6) to reopen the
    
    time to file an appeal.
    
           Mr. Stengel did not seek an extension of time to file a notice of appeal from the
    
    district court under FRAP 4(a)(5). He did file a motion under FRAP 4(a)(6) in the
    
    district court to reopen the time to file an appeal. The court denied the motion. It noted
    
    that Mr. Stengel received notice of the order and judgment dismissing the case on June
    
    17, 2015, which complies with the FRAP 4(a)(6)(A) requirement that the court “finds
    
    that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d)
    
    of the entry of the judgment or order sought to be appealed within 21 days after entry.”2
    
           The district court further determined, however, that Mr. Stengel did not comply
    
    with the FRAP 4(a)(6)(B) requirement that “the motion is filed within 180 days after the
    
    judgment or order is entered or within 14 days after the moving party receives notice
    
    under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier.”
    
    (Emphasis added.) Mr. Stengel filed his motion on August 7, 2015, well more than 14
    
    days after he received notice of the district court’s order and judgment on June 17, 2015.
    
    The court found Mr. Stengel had provided no basis to find that his motion to reopen was
    
    filed within the 14-day period. It entered an order denying the motion. Mr. Stengel
    
    timely appealed from this order. This is appeal 15-2136.
    
    
    
           2
             In his motion to reopen, Mr. Stengel said he received the order and judgment
    on June 17, 2015. ROA at 56 (15-2136). In his “Brief Establishing Jurisdiction”
    filed in this court on July 20, 2015, he said he received the order and judgment on
    June 15, 2015. Our review is based on the June 17 date as the one most favorable to
    Mr. Stengel and on which the district court based its ruling.
                                               -3-
           This court consolidated the appeals for all appellate procedural purposes and
    
    directed Mr. Stengel to file a single, consolidated opening brief addressing all issues for
    
    both appeals. He filed his brief on November 4, 2015.
    
           We review the denial of a FRAP 4(a)(6) motion for an abuse of discretion. Ogden
    
    v. San Juan County, 
    32 F.3d 452
    , 455 (10th Cir. 1994). In his appellate brief, Mr.
    
    Stengel does not address whether the district court abused its discretion when it denied
    
    the FRAP 4(a)(6) motion. We find no basis in the record to conclude the district court
    
    abused its discretion.
    
           Based on the foregoing, we affirm the district court’s denial of the motion to
    
    reopen in 15-2136. It follows we must dismiss the appeal in 15-2099 for lack of
    
    jurisdiction as untimely filed.
    
    
                                                  ENTERED FOR THE COURT,
    
    
    
                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge
    
    
    
    
                                                -4-