No. 1:12-CV-02257-PAB-KLM (D. Colo.)
TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
has filed a Motion for Rehearing with Suggestion of
Rehearing En Banc, and has also submitted a supplement
to that Motion. We have construed the original
motion as a petition for panel rehearing with a suggestion
for rehearing en banc. The petition for panel rehearing is
denied on the merits by the original panel. The petition and
supplement were also circulated to all the judges of the
court who are in regular active service in accordance with
Rule 35(b) of the Federal Rules of Appellate Procedure. No
judge in regular active service called for a poll, so the
suggestion for rehearing en banc is denied.
panel has sua sponte modified the Order issued on September
26, 2016; the modified Order is attached. The Order dated
September 26, 2016 is hereby withdrawn, and the Clerk is
directed to file the attached modified order nunc pro tunc to
the filing date of the original order, September 26, 2016.
File Date September 26, 2016
GREGORY A. PHILLIPS CIRCUIT JUDGE.
court ordered Mr. Carbajal to show cause why his appeal
should not be dismissed because his notice of appeal was
untimely filed. The parties have fully briefed the issue. We
conclude that the notice of appeal was untimely and we
therefore lack jurisdiction to hear this appeal.
Carbajal, a Colorado state prisoner at the Arkansas Valley
Correctional Facility ("AVCF"), appears pro se. He
was arrested in Denver in August 2010. According to Mr.
Carbajal, he was roughed up by members of the Denver Police
Department during the arrest and endured forced
catheterization during treatment at St. Anthony Central
Hospital. In his subsequent suit under 42 U.S.C. § 1983,
Mr. Carbajal alleged numerous violations of his
constitutional rights by law enforcement officers and
nearly all of Mr. Carbajal's claims were dismissed with
the exception of excessive force claims against three law
enforcement officers. Mr. Carbajal went to trial on these
claims in August 2015. On August 18, 2015, the jury returned
unanimous verdicts in favor of the defendants. Judgment on
the verdicts was entered on August 20, 2015. Mr.
Carbajal's notice of appeal was due 30 days after the
entry of judgment-or September 19, 2015. See Fed. R.
App. P. 4(a)(1)(A). However, because September 19, 2015, fell
on a Saturday, the notice of appeal was not due until Monday,
September 21, 2015. See Fed. R. App. P. 26(a)(1)(C).
AVCF has a legal mail system. Nonetheless, sometime after 4
p.m. on Friday, September 18, 2015, Mr. Carbajal deposited
the notice of appeal in AVCF's regular mail system, with
a certificate of mailing to the district court and
defendants' counsel. The notice was docketed as filed on
September 24, 2015-three days beyond the September 21, 2015
question is whether Mr. Carbajal's notice of appeal
should be determined to have been filed on September 18,
2015, under the prison mailbox rule-the judicially created
rule in Fed. R. App. P. 4(c)(1), which provides that
[i]f an inmate confined in an institution files a notice of
appeal in . . . a civil . . . case, the notice is timely if
it is deposited in the institution's internal mail system
on or before the last day for filing. If an institution has a
system designed for legal mail, the inmate must use that
system to receive the benefit of this rule. Timely filing may
be shown by a declaration in compliance with 28 U.S.C. §
1746 or by a notarized statement, either of which must set
forth the date of deposit and state that first-class postage
has been prepaid.
interpreting Rule 4(c)(1), this court held that "[a]n
inmate can establish the date on which he . . . gave the
papers to be filed with the court to a prison official in one
of two ways." Price v. Philpot, 420 F.3d 1158,
1165 (10th Cir. 2005). "[I]f the prison has a legal mail
system, then the prisoner must use it as the means of proving
compliance with the mailbox rule." Id.
(internal quotation marks omitted). Alternatively, "if
the inmate does not have access to a legal mail system-or if
the existing legal mail system is inadequate to satisfy the
mailbox rule, " the inmate must "submit a
declaration in compliance with 28 U.S.C. § 1746 or
notarized statement setting forth the ...