Opinion
23-1098
12-12-2023
ROBERT NOLAN, Plaintiff - Appellant, v. JOHN HALEY, et al., Defendants - Appellees.
(D.C. No. 1:21-CV-02424-PAB-MDB) (D. Colo.)
ORDER
This matter is before the court on our own motion. The appeal was opened on March 31, 2023. The appeal was premature, so proceedings were abated. See Fed. R. App. P. 4(a)(4)(B)(i). Once the abatement was lifted, the court challenged the appellant to demonstrate that he had not waived his right to appeal by failing to file objections to the magistrate judge's recommendation to dismiss the case. After an extension of time, the appellant file a response to the show cause order. The suspension of proceedings was lifted, and by order entered July 11, 2023, the court ordered the appellant (A) to file his opening brief, and (B) either (1) pay the appellate filing fees in full to the district court, or (2) file a motion to proceed without prepayment of the filing fees, all by August 21, 2023.
The appellant failed to file either a brief or a fees motion by the deadline. The court issued a deficiency notice on August 28, 2023, directing him to file the brief and fees motion by September 5, 2023.
On September 11, 2023, the appellant filed a motion for extension of time to file the opening brief and fees motion. The clerk granted 30 additional days to file these required documents. The appellant also asked the court to appoint free counsel for him to prosecute this prisoner civil rights appeal, which was denied in by order of the Chief Judge.
The appellant has requested free appointed counsel, or to reconsider the earlier denial of free appointed counsel, twice more. The most recent request was referred to a panel of judges that would be assigned later at the conclusion of briefing in an order entered October 2, 2023. The appellant was expressly advised that the court would not address the appellant's request for free appointed counsel until it reviewed a pro se brief describing his appeal.
The appellant filed two additional requests for extensions of time to file the opening brief and fees motion. The court granted the second request by order entered October 2, 2023, directing the opening brief and fees motion to be filed by November 6, 2023. A judicial panel of this court granted the appellant's third request by order entered November 6, 2023. The final due date for the opening brief and fees motion set by the court was December 6, 2023.
To date, the appellant has submitted two more letters but has not filed either an opening brief or a motion to proceed on appeal without prepayment of the filing fees.
Because the appellant has failed to take the necessary steps for this appeal to continue, and the final extended deadline to do so has expired, he has failed to prosecute the appeal. This appeal is therefore dismissed pursuant to Tenth Circuit Rule 42.1. A copy of this order shall stand as and for the mandate of this court.