Clay Sanders v. John Martinez, et al


UNPUBLISHED OPINION ORDER FILED. [10-10851 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 10/29/2010; granting motion to dismiss appeal for lack of jurisdiction filed by Appellee Mr. John Martinez [6617624-2] [10-10851]

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Clay Sanders v. John Martinez, et al Doc. 0 Case: 10-10851 Document: 00511258452 Page: 1 Date Filed: 10/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 8, 2010 N o . 10-10851 S u m m a r y Calendar Lyle W. Cayce Clerk C L A Y D. SANDERS, P la in t if f ­ A p p e lla n t , v. J O H N MARTINEZ, Trooper; CLAY COFFEY, D e fe n d a n t s ­ A p p e lle e s . A p p e a l from the United States District Court fo r the Northern District of Texas, Abilene N o . 1:08-CV-188 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e f e n d a n t ­ A p p e lle e John Martinez has filed a motion to dismiss p la in t iff­ a p p e ll a n t Clay Sanders's (Texas prisoner #1467793) appeal based on a lack of jurisdiction because Sanders did not timely file his notice of appeal. Sanders's notice of appeal does not specify the judgment or order being a p p e a le d .1 We will construe it generously to appeal both the district court's Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 * See FED. R. APP. P. 3(c)(1)(B). Case: 10-10851 Document: 00511258452 Page: 2 Date Filed: 10/08/2010 No. 10-10851 d e n ia l of his motion for an extension of time to file a notice of appeal and the d is t r ic t court's summary judgment for Martinez. O n July 29, 2010, Sanders filed a motion for extension of time to file a n o tic e of appeal, claiming that his transfer between prison units prevented him fr o m filing a timely notice of appeal. In his motion, Sanders asserted that he w a s transferred between prison units on June 18, 2010, and did not regain a c c e s s to the Indigent Mail Program until June 26, 2010, on which date he p r o v id e d the court with a notice of his change of address. Sanders requested an e x t e n s io n of time as "necessary for reasons beyond his control, such as unit t r a n s fe r s , transient status, and use of the Uniform Access to Courts Indigent M a il Process." The district court found that Sanders had not provided any e x p la n a t io n for why he was unable to file his notice of appeal between June 26 a n d July 22, 2010. The district court denied the motion, finding that Sanders h a d not shown good cause for the extension of time.2 The district court did not a b u s e its discretion in denying the extension motion,3 and we affirm that order. S a n d e r s 's notice of appeal of the district court's summary judgment for M a r t in e z was untimely; therefore, this court does not have jurisdiction to hear h is appeal of the judgment.4 Sanders had 30 days to file a notice appeal with the d is t r ic t court from the date judgment was entered.5 The judgment was entered o n June 22, 2010. Sanders filed his notice of appeal on August 19, 2010, outside o f the prescribed time. 2 See FED. R. APP. P. 4(a)(5)(A)(ii). See Allied Steel, Gen. Contractor v. City of Abilene, 909 F.2d 139, 142 (5th Cir. 1990) ("We review extensions of time under FRAP 4(a) for abuse of discretion.") (citing Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979)). Anderson v. Pasadena Ind. Sch. Dist., 184 F.3d 439, 447 (5th Cir. 1999) (holding that the court did not have jurisdiction to hear an appeal after an untimely filing of a notice of appeal). 5 4 3 FED. R. APP. P. 4(a)(1)(A). 2 Case: 10-10851 Document: 00511258452 Page: 3 Date Filed: 10/08/2010 No. 10-10851 * * * T h e order denying the extension of time to file a notice of appeal is A F F IR M E D ; the motion to dismiss the appeal of the summary judgment is GRANTED. 3

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