Harper v. Guthrie , 695 F. App'x 416 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROBERT J. HARPER, JR.,
Plaintiff - Appellant,
v. No. 17-8001
(D.C. No. 1:15-CV-00082-ABJ)
SCOTT M. GUTHRIE; MARK M. (D. Wyo.)
GIFFORD, individually, and in his official
capacity as Wyoming State Bar
Association Counsel; SHANNON
HOWSHAR, individually, and in her
official capacity as Wyoming State Bar
Association Assistant; JENNIFER
CALKINS-SCOGGINS; DONNA CAY
HEINZ, individually, and in her official
capacity on Wyoming’s Commission on
Judicial Conduct and Ethics; MATTHEW
H. MEAD, individually, and in his official
capacity as Wyoming State Governor,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.**
*
This order and judgment is not binding precedent, except under the doctrines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.
**
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-Appellant Robert J. Harper, Jr., a Wyoming state inmate proceeding
pro se, appeals from the district court’s denial of his motion for an extension of time
to file a notice of appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
The district court dismissed Mr. Harper’s 42 U.S.C. § 1983 complaint against
various Wyoming officials on October 20, 2015. Under Fed. R. App. P. 4(a)(1)(A),
Mr. Harper had thirty days to file a notice of appeal. His notice of appeal was not
filed until November 25, 2015, which he conceded was untimely. Mr. Harper then
filed a motion for an extension of time with the district court, which the court denied
as moot. A panel of this court vacated and remanded that decision so the district
court could consider the motion on the merits. Harper v. Guthrie, 660 F. App’x 620,
623 (10th Cir. 2016) (unpublished). On remand, the district court concluded that Mr.
Harper had not made an adequate showing of excusable neglect or good cause to
justify the granting of an extension. R. 17–23. We review that decision for an abuse
of discretion. Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004).
A district court “may extend the time to file a notice of appeal” if a “party
shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(ii). We have
explained that among the factors relevant to an excusable-neglect decision include
“the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.” Bishop, 371 F.3d at 1206
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(citation omitted). Good cause, on the other hand, occurs when there is no fault by
the party at all, “excusable or otherwise.” Id. at 1207 (citation omitted).
Mr. Harper argued before the district court that he was unable to file his notice
of appeal on time because (1) the notary public at his prison was unavailable, (2) he
lacked legal materials and services at the prison, (3) he did not know when his notice
of appeal was due, and (4) the district court did not tell him how or when to file his
notice of appeal. The district court rejected his arguments that these reasons
constituted unique and extraordinary circumstances to qualify as excusable neglect
because Fed. R. App. P. 4(c)(1)(A)(i) specifically provided a way for Mr. Harper to
file his notice of appeal without a notarized statement. R. 21.
On appeal, Mr. Harper repeats these underlying arguments for delay.
Specifically, he contends that even though it turned out that no notary was required,
he did not know that at the time and should not be penalized for his general
unfamiliarity with the law. See Aplt. Br. at 16; Aplt. Reply Br. at 3. Additionally, he
seems to argue that the fact that a panel of this court previously held that the district
court abused its discretion in dismissing his initial motion for an extension of time
necessarily demonstrates that his neglect was excusable. See Aplt. Br. at 17–18.
In this court’s previous decision, however, the panel held that the district court
abused its discretion “by denying Mr. Harper’s motion without addressing whether he
had shown excusable neglect or good cause.” Harper, 660 F. App’x at 623. Here,
the district court expressly considered Mr. Harper’s reasons for his motion and
concluded that they did not demonstrate excusable neglect or good cause. “Although
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we construe [Mr. Harper’s] pleadings liberally because he is a pro se litigant, he
nevertheless must follow the same rules of procedure that govern other litigants.”
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). It was not an abuse of
discretion for the district court to follow this settled rule.
AFFIRMED. We GRANT Mr. Harper leave to proceed in forma pauperis on
appeal and remind him of his obligation to make partial payments until the entire
amount is paid in full.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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