Carpenter v. Williams , 86 F.3d 1015 ( 1996 )

PUBLISH
UNITED STATES COURT OF APPEALS
Filed 6/18/96
FOR THE TENTH CIRCUIT
________________________
ROBERT L. CARPENTER, )
)
Plaintiff-Appellant, )
)
v. ) No. 96-1047
) (D.C. No. 95-S-2762)
JAY F. WILLIAMS, PHYLLIS HUDSON, John ) (D. Colorado)
Does 1 through 100; DEFENSE FINANCE AND )
ACCOUNTING SERVICE, Cleveland Center, )
)
Defendants-Appellees. )
__________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 95-S-2762)
_________________________
Robert L. Carpenter, Rohnert Park, California, pro se.
Henry L. Solano, United States Attorney, and Robert D. Clark, Assistant United States Attorney,
Denver, Colorado, representing Defendants-Appellees.
_________________________
Before BRORBY, EBEL and HENRY, Circuit Judges.
__________________________
BRORBY, Circuit Judge.
__________________________
Plaintiff Robert L. Carpenter, proceeding pro se and in forma pauperis, appeals the district
court's dismissal of his civil rights complaint. The district court entered its dismissal order on
January 4, 1996. On January 26, 1996, Mr. Carpenter filed a document which the district court
construed as a motion for reconsideration. Because the document was filed more than ten days after
the entry of the dismissal order, it is properly viewed as a motion for relief from judgment pursuant
to Fed. R. Civ. P. 60(b) rather than a motion to alter or amend the judgment pursuant to Fed. R. Civ.
P. 59(e). Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995); Van Skiver v. United States, 952
F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). The district court denied the
motion on January 29, 1996. Because Mr. Carpenter did not file his Rule 60(b) motion within ten
days after the district court dismissed his complaint, the time for filing notice of appeal was not
tolled pending the district court's disposition of his Rule 60(b) motion. Fed. R. App. P. 4(a)(4)(F).
Mr. Carpenter filed this notice of appeal on January 30, 1996.1
In Van Skiver, we held that if the appellant filed notice of appeal more than thirty days after
the district court entered its final decision, but less than thirty days after the district entered its order
denying the appellant's Rule 60(b) motion, and the Rule 60(b) motion was filed more than ten days
after the district court entered its final decision, we will not review the district court's final decision,
but only the order denying the Rule 60(b) motion. Van Skiver, 952 F.2d at 1243; see also Bud
Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1439 (10th Cir. 1990); United
States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988); Morris v. Adams-Millis Corp.,
758 F.2d 1352, 1356 & n.5 (10th Cir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 223-24 & n.8
(10th Cir. 1979) (stating general rule but noting denial of Rule 60(b)(4) motion asserting underlying
judgment is void necessarily requires the court of appeals to review the validity of the underlying
1
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); 10th Cir.
R. 34.1.9. The cause is therefore ordered submitted without oral argument.
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judgment). The importance of the Van Skiver rule is obvious: among other things, it prevents
appellants from circumventing Fed. R. App. P. 4(a) and extending the thirty-day period for filing
notice of appeal by filing a Rule 60(b) motion after the ten-day period specified in Fed. R. App. P.
4(a)(4)(F) has expired. In this case, however, Mr. Carpenter filed his notice of appeal within thirty
days after the district court entered its dismissal order. Accordingly, Van Skiver is distinguishable,
and we will review the district court's dismissal order, and not merely the order denying Mr.
Carpenter's Rule 60(b) motion.
Having reviewed the district court's order, we find no fault with its conclusion Mr.
Carpenter's complaint fell well short of the requirements of Fed. R. Civ. P. 8(a)(1) (pleading shall
include "a short and plain statement of the grounds upon which the court's jurisdiction depends") and
Fed. R. Civ. P. 8(a)(2) (pleading shall include "a short and plain statement of the claim showing that
the pleader is entitled to relief"). Even liberally construed, Mr. Carpenter's complaint, like his
opening brief on appeal, is incomprehensible.
AFFIRMED.
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