Opinion
No. 08-1158.
December 22, 2008.
Appeal from the United States District Court for the District of Colorado.
Leonard Baldauf, Canon City, CO, pro se.
Andrew D. Ringel, Hall Evans, Denver, CO, for Defendants-Appellees.
Before KELLY, PORFILIO, and O'BRIEN, Circuit Judges.
ORDER AND JUDGMENT
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)(2); 10th Cir. R. 34.1(G). The case is 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
This is the third appeal in this prisoner civil rights case brought pursuant to 42 U.S.C. § 1983. We dismiss in part, and affirm in part.
Plaintiff Leonard Baldauf, a prisoner of the State of Colorado appearing pro se, brought suit under § 1983, alleging that his constitutional rights had been violated. Initially, the district court dismissed the complaint, in part for lack of jurisdiction under the Heck doctrine, see Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). R., Doc. 30, at 6-7, Doc. 32. Plaintiff appealed, and we remanded for the district court to conduct additional proceedings to resolve whether it had jurisdiction. Baldauf v. Hyatt, 120 Fed.Appx. 288 (10th Cir. 2005). On remand, the district court concluded that it did have jurisdiction to proceed, see R., Docs. 71, 75, and, on defendants' renewed motion to dismiss, dismissed all of plaintiffs claims on the merits except for his first claim for relief against defendants Fahey, Hyatt, other unnamed officers, Carreras, Davis, Fulton, Maestas, Garcia, and Archuleta, id., Doc. 92, at 10-13, Doc. 103, at 3. We dismissed plaintiffs interlocutory appeal from the district court's order.
Proceedings then continued in the district court on plaintiffs remaining claim against the remaining parties. The district court granted plaintiffs motion for appointment of counsel. Id., Doc. 130. After some discovery, defendants filed a motion for summary judgment. Id., Doc. 146. Plaintiffs counsel filed a brief in response, id., Doc. 153, but failed to object to the magistrate judge's subsequent recommendation to grant summary judgment, id., Doc. 161. The district court adopted the recommendation on January 31, 2008, 2008 WL 280839, id., Doc. 162, and entered judgment on February 21, 2008, id., Doc. 163.
On March 11, 2008, plaintiffs counsel filed a motion for relief, arguing that his failure to file objections was due to excusable neglect because he did not receive the order referring the matter to the magistrate judge or the magistrate judge's recommendation. Id., Doc. 167. The district court considered the motion for relief under Fed.R.Civ.P. 60(b), but denied it on April 8, 2008, 2008 WL 961572, because counsel had admitted that his office had had problems in the past receiving court filings through the electronic case management system, including in this case; because counsel did not move for relief promptly upon receiving the district court's January 31 order adopting the magistrate judge's recommendation; and because counsel "failed to present any argument suggesting that plaintiff may have one or more meritorious objections to the magistrate judge's recommendation." R., Doc. 176, at 2-3. The district court reasoned that counsel should have been more vigilant. Id. at 3. Plaintiff filed this appeal pro se, designating the order granting summary judgment and the order denying relief from the judgment.
We lack jurisdiction over the order granting summary judgment because plaintiffs notice of appeal was untimely as to that order. The judgment was entered on February 21, 2008. See id., Doc. 163. Plaintiff filed his notice of appeal on April 28, 2008, see id., Doc. 177, more than thirty days after the judgment was entered, and the notice of appeal was therefore untimely. See Fed.R.App.P. 4(a)(1)(A). His motion for relief was not filed within ten days of the judgment, so it did not toll the time to file an appeal. See Rule 4(a)(4)(A)(vi). To the extent that plaintiff challenges the grant of summary judgment, we dismiss the appeal.
We have jurisdiction to review the denial of plaintiffs motion for relief because plaintiffs April 28, 2008, notice of appeal was filed within thirty days of the district court's April 8, 2008, order denying that motion. See Rule 4(a)(1)(A). Plaintiff raises no arguments as to the denial of his motion for relief, however; all of his arguments on appeal relate to the grant of summary judgment. We therefore affirm the district court's denial of the motion for relief without further discussion.
The appeal is DISMISSED in part and the judgment of the district court is otherwise AFFIRMED. Appellant's motion for leave to proceed in this court without pre-payment of costs and fees is DENIED. Appellant shall pay the fees within thirty days of the date of this order.