Hurdsman v. Wackenhut Corr Corp

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 5, 2000
• Docket: 99-51069
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-51069 Summary Calendar ____________________

RODNEY ADAM HURDSMAN,

Plaintiff-Appellant, versus

WACKENHUT CORRECTIONS CORPORATION; J.D. WILLIAMS, Warden; ABIGAIL GONZALES, Chief of Unit Classification at the Travis County Community Justice Center; ALLAN POLUNSKY, Chairman; WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (A-97-CV-835-SS) _________________________________________________________________ June 1, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

At issue is whether the district court abused its discretion

in denying Texas prisoner Rodney Adam Hurdsman’s FED. R. APP. P.

4(a)(6) motion to reopen the time to file his appeal.

Having dismissed Hurdsman’s § 1983 action, without prejudice,

for failure to state a claim, the district court entered judgment

on 6 April 1999. Hurdsman v. Wackenhut Corrections Corp., No. A

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-CA-835 SS (W.D. Tex. 5 April 1990). Hurdsman submitted a notice

of appeal on 30 May 1999, stating his parents notified him his case

had been dismissed (apparently the court sent notice to his

parents’ residence). On 13 September 1999, our court dismissed

Hurdsman’s appeal for lack of jurisdiction, because it was untimely

filed. Hurdsman v. Wackenhut Corrections Corp., No. 99-50582 (5th

Cir. 8 Sept. 1999) (unpublished). On 30 September, Hurdsman moved

to reopen the appeal period.

The district court clerk is required to serve notice of the

entry of an order or judgment by mail to the parties immediately

upon its entry. FED. R. CIV. P. 77(d). But, lack of notice does not

relieve a party of filing a timely notice of appeal. See Latham v.

Wells Fargo Bank, N.A., 987 F.2d 1199, 1201 (5th Cir. 1993)

(“[P]arties have a duty to inquire periodically into the status of

their litigation”.)

On the other hand, a district court “may” reopen the time to

file an appeal if: the motion to reopen is filed within the

earlier of 180 days after entry of judgment or within seven days

after the moving party receives notice of such entry; the moving

party did not receive notice within 21 days after entry; and “no

party would be prejudiced”. FED. R. APP. P. 4(a)(6)(A)-(C). The

denial of such motion is reviewed for abuse of discretion. In re

Jones, 970 F.2d 36, 39 (5th Cir. 1992).

- 2 - Hurdsman contends he was unable to receive the order of

dismissal and timely file a notice of appeal because of his place

of incarceration being changed. The district court found Hurdsman

met the requirements of Rule 4(a)(6), because his having received

notice only from his family, not the court, in May 1999 was

insufficient to trigger the rule’s seven-day window, and there

would be no prejudice (defendants had not been served prior to

dismissal). But, noting that the rule does not require granting

relief, even where a movant demonstrates non-receipt of the

judgment and lack of prejudice to any party, the court denied the

motion. It did so because, despite Hurdsman’s actual notice in May

1999 of the entry, Hurdsman failed to then notify the clerk of his

address change, so that he could receive a copy of the judgment,

and only moved to reopen in September, after our court’s dismissal

of his appeal as untimely. Hurdsman, No. A 97-CA-835 SS, Slip op.

at 3. We agree. Accordingly, the district court did not abuse its

discretion. See Jones, 970 F.2d at 39. (5th Cir. 1992).

In the light of our ruling, the motion for court-appointed

counsel is DENIED as moot.

AFFIRMED; MOTION FOR APPOINTED COUNSEL DENIED AS MOOT

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