Opinion
21-3101
08-24-2021
JONATHAN MARSHALL, SR., Plaintiff - Appellant, v. N.C. ENGLISH, Former Warden, USP Leavenworth, in her individual and official capacity; J. DYER, Camp Administrator/ Unit Manager, USP Leavenworth, in his individual capacity; J. BAILY, Camp Case Manager, USP Leavenworth, in his individual capacity; (FNU) RODERICK, Camp Case Manager, USP Leavenworth, in his individual capacity; T. RAWLS, Camp Correctional Counselor, USP Leavenworth, in his individual capacity; (FNU) WELLS, Doctor, RDAP Coordinator Camp, USP Leavenworth, in his individual and official capacity; JOHN DOE (1), Regional Director, Bureau of Prisons, in his individual and official capacity; B. GRELICK, Warden of Camp FCI El Reno, in his individual and official capacity; K. ZOOK, A/W Operations Camp, FCI El Reno, in her individual capacity; K. FREEMAN, Camp Unit Manager, FCI El Reno, in her individual capacity; N. GAMBEL, Case Manager Camp, FCI El Reno, in his individual capacity; (FNU) TURNAGE, Case Manager Camp, FCI El Reno, in her individual capacity; J. LEPRID, Correctional Counselor Camp, FCI El Reno, in his individual capacity; (FNU) MCCORMICK, Retired Correctional Counselor Camp, FCI El Reno, in his individual capacity; (FNU) AVRITT, Doctor, RDAP Coordinator Camp, FCI El Reno, in his individual and official capacity; (FNU) WATSON, R&D/Receiving Officer Camp & Medium, FCI El Reno, in his individual capacity; (FNU) TOWER, R&D Receiving/Inmate System Manager Camp & Medium, FCI El Reno, in his individual capacity; JOHN DOES (1), Two Mailroom Officers Camp & Medium, FCI El Reno, in their individual capacities; JOHN DOE (2), Regional Counsel, Bureau of Prisons, FCI El Reno, in their individual and official capacity; MYRON L. BATTS, Ex-Warden, FCI Big Spring, in his individual and official capacity; GREG ABBOTT, Governor of Texas, in his individual and official capacity; KEN PAXTON, Attorney General, State of Texas, in his individual and official capacity; J. MOORE, Retired Unit Manager, FCI Big Spring, in her individual capacity; TOMMY HALE, Retired Case Manager, FCI Big Spring, in his individual capacity; A. PREITO, Retired Correctional Counselor, FCI Big Spring, in his individual capacity; ROBERT FLORES, Retired Correctional Counselor, FCI Big Spring, in his individual capacity; C. BRAMER, Supervisor of Education, FCI Big Spring, in his individual and official capacity; LOUIS WILLIAMS, Associate Warden, FCI Big Spring, in his individual and official capacity; (FNU) VIALPANDO, Unit Manager, FCI Big Spring, in his individual and official capacity; (FNU) PATTON, Unit Manager ("Unit-Team"), FCI Big Spring, in her individual and official capacity; (FNU) MONTEZ, Correctional Counselor ("Unit-Team"), FCI Big Spring, in his individual and official capacity; (FNU) STAHLEY, Unit Manager ("Unit-Team"), FCI Big Spring, in his individual and official capacity; LINDA THOMAS, Judge, Texas Appellate Court, in her individual and official capacity; WILLIAM C. MARTIN, Judge, Texas Appellate Court, in her individual and official capacity; BRENDA G. GREEN, Judge, 256th Judicial District Court-Family Court, in her individual and official capacity; DAVID LOPEZ, Judge, 256th Judicial District Court-Family Court, in his individual and official capacity; GEORGE WHITE, Private Attorney, in his individal capacity; W. J. MORRIS, Private Attorney, in his individual capacity, a/k/a Bill Morris; JOHN DOES (2), Two Deputies, Dallas County Sheriff's Department, in their individual capacities; JOHN DOES (3), Four Jail Guards, Dallas County Sheriff's Department, in their individual capacities; JOHN DOES (4), Three Jail Officials, Dallas County Sheriff's Department, in their individual capacities; SAM R. CUMMINGS, Judge, Judge, United States District Court, Northern District of Texas, in his individual and official capacity; REED C. O'CONNOR, Judge, United States District Court, Northern District of Texas, in his individual and official capacity; JOHN AND/OR JANE DOE, Clerk, United States District Court, Northern District of Texas, in their individual and official capacity; EARL LEROY YEAKEL, III, Judge, United States District Court, Western District of Texas, in his individual and official capacity, a/k/a Lee Yeakel; ROBERT PITTMAN, Magistrate Judge, United States District Court, Western District of Texas, in his individual capacity; ANDREW W. AUSTIN, Magistrate Judge, United States District Court, Western District of Texas, in his individual capacity; ELIZABETH COTTINGHAM, Assistant United States Attorney, United States Attorney's Office, Austin, Texas, in her individual capacity; MICHELLE MCELROY, Assistant United States Attorney, United States Attorney's Office, Austin Texas, in her individual capacity; WILLIAM H. IBBOTSON, Assistant Public Defender, Austin, Texas, in his individual capacity; RENEE MALDONADO, Public Defender's Investigator, Austin, Texas, in his individual capacity; JANE DOE (1), Public Defender's Investigator, Austin, Texas, in her individual capacity; JOSEPH H. GAY, JR., Assistant United States Attorney, United States Attorney's Office, San Antonio, Texas, in his individual capacity; UNITED STATES MARSHAL'S SERVICE, Alexandria, Virginia, in their individual and official capacity; JOHN DOES (5), Four U.S. Marshals, Austin, Waco and Big Spring, Texas, in their individual capacities; WILLIAM C. PUTNICKI, Clerk, United States District Court, Western District of Texas, in his individual and official capacity; BRENDA HEENEY, Special Agent of IRS, Criminal Investigation Division, Austin, Texas, in her individual capacity; JOHN CORNELIUS, IRS Special Agent, Criminal Investigation Division, Austin, Texas, in his individual capacity; ANN TIMMINS, IRS Special Agent, Criminal Investigation Division, Austin, Texas, in her individual capacity; BOBBY SMITH, IRS Undercover Informant/Special Agent, Dallas County Jail, in his individual capacity; JOHN DOES (6), IRS Undercover Informant, IRS and Dallas County Jail, in their individual capacity; JOHN DOES (7), IRS Informant, IRS and Dallas County Jail, in their individual capacity; PHILIP J. LYNCH, Assistant Public Defender, Western District Appellate-USCA5, in his individual capacity; KAREN MITCHELL, Clerk of the Court, United States District Court, Northern District of Texas, in her individual and official capacity; BILL LONG, Clerk of the District Court, Dallas County District Court, in his individual and official capacity; CHARLES FULBRUGE, III, Clerk of the Court, USCA5, in his individual and official capacity; CLAUDIA FARRINGTON, Assistant Clerk of the Court, USCA5, in her individual capacity; WILLIAM K. SUTER, Clerk, United States Supreme Court, in his individual and official capacity; ROBERT B. MALONEY, Judge, United States District Court, Northern District of Texas, in his individual and official capacity; SAM A. LINDSAY, Judge, United States District Judge, Northern District of Texas, in his individual and official capacity; JANE BOYLE, Judge, United States District Court, Northern District of Texas, in her individual and official capacity; CAROLYN D. KING, Judge, United States District Court, Northern District of Texas, in her individual and official capacity; BARABARA M.G. LYNN, Judge, United States District Court, Northern District of Texas, in her individual and official capacity; HENRY H. KENNEDY, Judge, United States District Court, District of Columbia, in his individual and official capacity; JEFF KAPLAN, Magistrate Judge, United States District Court, Northern District of Texas, in his individual and official capacity; WILLIAM F. SANDERSON, Magistrate Judge, United States District Court, Northern District of Texas, in his individual and official capacity; JOHN B. TOLLE, Magistrate Judge, United States District Court, Northern District of Texas, in his individual and official capacity; PAUL D. STICKEY, Magistrate Judge, United States District Court, Northern District of Texas, in his individual and official capacity; JOHN DOE (3), Magistrate Judge, United States District Court, in his individual and official capacity; CITY OF DALLAS, TEXAS; COUNTY OF DALLAS, TEXAS; CRAIG WATKINS, Dallas County Prosecutor, in his individual and official capacity; JIM BOWLES, Ex-Sheriff, Dallas County Sheriff's Department/Jail, in his individual and official capacity; SHIRLEY BACCUS-LOBEL, State Attorney, Dallas, Texas, in her individual capacity; PETER L. HARLAN, Assistant State Prosecutor, Dallas, Texas, in his individual and official capacity; CARL HADIGIAN, Public Defender for Family Court, Dallas, Texas, in his individual and official capacity; ROBERT G. DAVIS, Private Attorney, Dallas, Texas, in his individual capacity; THOMAS BARRON, Federal Appointed Attorney, Dallas, Texas, in his individual and official capacity; GARY A. UDASHEN, Federal Appointed Appeal Attorney, Dallas Texas, in his individual capacity; CRAIG FERRELL, IRS Employee/Undercover Person, Dallas, Texas, in his individual and official capacity; JOHN DOE (4), Blind IRS Employee/Undercover Person, in his individual and official capacity; JOHN/JANE DOES (1), Ten IRS Special Agents/Employees/Auditors, Dallas, Austin and San Antonio, Texas, in their individual and official capacities; LEE JACKSON, Judge- County Commissioner of Dallas County, in his individual and official capacity; JOHN WILEY PRICE, County Commissioner of Dallas County, in his individual and official capacity; JOHN/JANE DOES (2), Four County Commissioners of Dallas County, in their individual capacity; CHARLES B. HENDRICKS, Attorney/Lawyer for State or Federal, in his individual capacity; CINNAMON ORNELAS, Probation Office/PSI, Austin, Texas, in his individual capacity; ZELMA WILLIS, Texas Child Support Division, Dallas, Texas, in her individual and official capacity; ARTHUR H. BOELTER, Attorney/Lawyer/ Consultant/Retainer-Wizard Services/Joe Marshall's Companies, in his individual capacity; SHARON JONES, Client/ Renter/Associate-Wizard Services/Joe Marshall and Companies, in her individual capacity; GLORIA CROSS-BROWN, Cleint/Renter/Associate-Wizard Services/Wizard Services/Joe Marshall's Companies, in her individual capacity; CHARLES E. ERWIN, JR., Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; LAURIE L. CARR, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity; JOAN HONEGGER, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity; (FNU) HONEGGER, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; GLADYS GIPSONS, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity; JAMES WILLIAMS, JR., Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; RHONDA WILLIAMS, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity; CARLA ELLISON, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity; BRUCE LOGGSTON, Client/Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; LEE CARTER, Client/Turned IRS Informant-Wizard Services/Joe Marshall's Companies, in his individual capacity; CHERYL D. ABERCROMBIE, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; JACKIE ROBINSON, Client/ Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity; TRAVIS JOHNSON, Client/ Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of Travis Johnson; TOMMIE TURNER, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of Travis Johnson; FORREST RICHARDSON, Client/ Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of Forrest Richardson; STEVE WOLFSON, Lawyer/Consultant/ Retainer-Wizard Services/Joe Marshall's Companies, in his individual capacity; HOWARD WEINBERGER, Lawyer/ Criminal Defense of Wizard Services/Joe Marshall & Companies, in his individual capacity; CHARLES SHAFER, Lawyer/ Criminal Defense of Wizard Services/Joe Marshall & Companies, in his individual capacity; WILLIE BERRY, Client/ Associate/Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of Willie Berry; ALFRED HUNTSBERRY, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of Alfred Huntsberry; VICKY MCGRUDER, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity, Estate of Vicky McGruder; (FNU) WHITTLESEY, Leasor/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in his individual capacity, Estate of (fnu) Whittlesey; MATTIE COOK, Client/Associate/ Stakeholder-Wizard Services/Joe Marshall's Companies, in her individual capacity, Estate of Mattie Cook; JOHN/JANE DOES (3), Ten Clients/ Associates/Stakeholders-Wizard Services/ Joe Marshall's Companies, in their individual capacity, Estate of John and Jane Does (3); MITCHELL MARSHALL, Brother/Client/Stakeholder- Wizard Services/Joe Marshall's Companies, in his individual capacity; JOHN/JANE DOES (4), Twenty Family Members/Relatives/ Clients/Associates/Stakeholders-Wizard Services/Joe Marshall's Companies, in their individual capacity; JOHN/JANE DOES (5), Twenty-Five Relatives/Clients/ Associate/Stakeholders-Wizard Services/ Wizard Services/Joe Marshall's Companies, in their individual capacity; JAMES ARNOLD GIBSON, Client/Associate/Stakeholder-Wizard/Joe Marshall's Companies, in his individual capacity; JOHN/JANE DOES (6), Twenty Clients/Associates/Stakeholders-Wizard Services/Joe Marshall's Companies, in their individual capacity; JOHN/JANE DOES (7), Twenty Ex-CEOs/Owners/Managers of Major Corporations/Clients/Associates/ Contractors/Stakeholders-Wizard Services/Joe Marshall's Companies, in their individual capacity; STATE BAR OF TEXAS, President, in his individual and official capacity; AMERICAN BAR ASSOCIATION, President, in their individual and official capacity; STATE OF TEXAS; INTERNAL REVENUE SERVICE; BUREAU OF PRISONS; U.S. DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION; EXECUTIVE OFFICES FOR U.S. ATTORNEYS; ADMINISTRATIVE OFFICE FOR U.S. COURTS; UNITED STATES OF AMERICA, Defendants - Appellees.
D.C. No. 5:20-CV-03190-SAC, (D. Kan.)
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
ORDER
This matter is before the court on: (1) the jurisdictional show cause order it issued on June 29, 2021; and (2) pro se appellant Jonathan Marshall, Sr.'s response. Upon consideration of Mr. Marshall's response, the district court docket, and the applicable law, the court dismisses the appeal for the reasons set forth below.
Mr. Marshall seeks to appeal the district court's March 29, 2021 order denying his request for a temporary restraining order and preliminary injunction. However, the order denying Mr. Marshall's request for a temporary restraining order is not immediately appealable, and, in any event, Mr. Marshall's notice of his intent to appeal the March 29, 2021 order is untimely.
First, denial of a temporary restraining order is not generally appealable unless "the order in reality operates as a preliminary injunction, or . . . the order is appealable as a final order under 28 U.S.C. § 1291." See Populist Party v. Herschler, 746 F.2d 656, 661 n.2 (10th Cir. 1984); see also Tooele Cty. v. United States, 820 F.3d 1183, 1186 (10th Cir. 2016) ("Temporary restraining orders are not ordinarily appealable, but preliminary injunctions are appealable.").
Second, although an order denying a preliminary injunction is immediately appealable, see 28 U.S.C. § 1292(a), "[t]his Court can exercise jurisdiction only if a notice of appeal is timely filed." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006). This court has no authority to make equitable exceptions to jurisdictional requirements, see Bowles v. Russell, 551 U.S. 205, 216 (2007), and Mr. Marshall's pro se status does not affect this rule, see Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (dismissing pro se appeal filed three days late).
The district court entered its order denying Mr. Marshall's motion for preliminary injunction on March 29, 2021. [ECF No. 8]. Accordingly, Mr. Marshall's notice of his intent to appeal that order was due on or before May 28, 2021. See Fed. R. App. P. 4(a)(1)(B) (where the United States or its officer or employee is party to a civil case, notice of appeal must be filed with the district court clerk within 60 days after entry of the order appealed from).
Mr. Marshall did not sign his notice of appeal [ECF No. 9] until June 1, 2021, and the district court did not receive it until June 7, 2021-ten days after it was due. Accordingly, even giving Mr. Marshall every benefit of the prison mailbox rule, he did not timely file his notice of appeal. See Fed. R. App. P. 4(a)(1)(A); 4(c)(1).
As a result, "[t]he time limit has run and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995).
APPEAL DISMISSED.