FILED
                                                                 United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                     Tenth Circuit

                             FOR THE TENTH CIRCUIT                   September 26, 2016
                         _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DEAN CARBAJAL,

      Plaintiff - Appellant,

v.                                                          No. 15-1349
                                               (D.C. No. 1:12-CV-02257-REB-KLM)
STEPHAN M. SWAN, Physician                                   (D. Colo.)
Assistant, in his official capacity;
MICHAEL O’NEILL, Police Officer for
the Denver Police Department, in his
individual and official capacity; JAY
LOPEZ, Police Officer for the Denver
Police Department, in his individual and
official capacity; LARRY BLACK, Police
Officer for the Denver Police Department,
in his individual and official capacity; ST.
ANTHONY CENTRAL HOSPITAL, a
corporation; CENTURA HEALTH, a
corporation; APEX, a corporation;
CHUANG, Dr., Supervising Physician, in
his individual and official capacity;
THOMAS, Lieutenant, Lieutenant for the
Denver Police Department, in his
individual and official capacity; STEVEN
CARTER, Captain for the Denver Police
Department, in his individual and official
capacity; GILBERTO LUCIO, Police
Officer for the Denver Police Department,
in his individual and official capacity;
CITY AND COUNTY OF DENVER, a
political subdivision of the State of
Colorado; GREGORY J. ENGLUND;
MARCI L. HANSUE,

      Defendants - Appellees.
                      _________________________________

                                         ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and PHILLIPS, Circuit Judges.
                 _________________________________

       This court ordered Dean 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 Mr. Carbajal’s notice of appeal was untimely and we

therefore lack jurisdiction to hear this appeal.

       Mr. 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 hospital personnel.

       Eventually, 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).


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       The 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 deadline.

       The 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.
       In 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, 

, 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.” 

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 notice’s date of




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deposit with prison officials and attest that first-class postage was pre-paid.”

internal quotation marks omitted).

       It is undisputed that AVCF has a legal mail system, but Mr. Carbajal failed to use

it. Nonetheless, he argues that he can rely on the second means of complying with

Rule 4(c)(1), because he was “prevented” from using AVCF’s legal mail system on

September 18, 2015. But Mr. Carbajal, who “has the burden of proof on this issue,”

, has not established compliance with this protocol, assuming for

purposes of argument that it applies to his circumstances.

       Prisoners have access to AVCF’s mailroom for 30 minutes each day on Monday

through Friday afternoons, between either 3:00 to 3:30 or 3:30 to 4:00. Mr. Carbajal does

not dispute this fact, but argues that on Friday, September 18, 2015, two correction

officers refused to let him go to the mailroom. At the same time, Mr. Carbajal says that

he did not receive the materials he needed to file the notice of appeal until sometime after

4:00 p.m, when the mailroom was already closed. Whether Mr. Carbajal was prevented

from going to the mailroom or did not have his materials ready until after the mailroom

had closed is beside the point—he did not submit the required declaration or notarized

statement with his notice of appeal. More to the point, there is no evidence that

Mr. Carbajal was denied access to AVCF’s legal mail system on Monday, September 21,

2015—the day the notice of appeal was due.

       “The filing of a timely notice of appeal is an absolute prerequisite to our

jurisdiction.” Parker v. Bd. of Pub. Utils., 

, 1290 (10th Cir. 1996).



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Mr. Carbajal’s notice was untimely and as a consequence this appeal is dismissed for lack

of jurisdiction.1

                                                         Entered for the Court


                                                         Gregory A. Phillips
                                                         Circuit Judge




       1
           The order assessing fees entered by the clerk’s office on March 8, 2016, is
vacated.
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