McIntosh v. Green

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 10, 2003
• Docket: 03-6038
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 5 2003 TENTH CIRCUIT PATRICK FISHER Clerk

PATRICK LYNN McINTOSH,

Plaintiff-Appellant, v. No. 03-6038 JAMES GREEN and KENNETH (D.C. No. 99-CV-1692-HE) PALMER, Oklahoma Police Department (W.D. Oklahoma) Officers,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff Patrick McIntosh, appearing pro se, appeals the judgment entered in favor

of defendants on his excessive force claims under 42 U.S.C. § 1983. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

McIntosh filed this action pursuant to § 1983 alleging that defendants violated his

constitutional rights during a traffic stop and ensuing search and arrest. The district court

granted summary judgment in favor of defendants with respect to all of the claims

asserted in McIntosh’s complaint except his excessive force and property damage claims.

With respect to those claims, the district court appointed counsel and set the matter for

trial. At trial, the jury found in favor of defendants and against McIntosh on those claims.

Following entry of judgment, the district court allowed McIntosh’s appointed

counsel to withdraw. McIntosh filed a pro se motion asserting his intent to appeal, asking

for a copy of the trial transcript at public expense, and requesting appointment of counsel

to perfect his appeal. The district court authorized McIntosh to appeal without

prepayment of the appellate filing fee, denied his requests for appointment of counsel and

for a copy of the trial transcript at government expense, and directed him to file a notice

of appeal that complied with Federal Rule of Appellate Procedure 3. McIntosh attempted

to comply with the district court’s directive by filing a pro se supplement to his original

motion for appeal.

2 II.

Defendants assert that McIntosh never filed a timely notice of appeal as required

by Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure to invoke appellate

jurisdiction. While appellees are correct that a timely notice of appeal is mandatory and

jurisdictional, the technical requirements of the notice itself are liberally construed to

avoid injustice. See Smith v. Barry, 502 U.S. 244, 248-49 (1992). McIntosh’s motion for

appeal and his supplement to that motion, though far from perfect, conveyed his intent to

appeal from the judgment entered on the jury’s verdict and are thus sufficient for this

court to exercise jurisdiction and reach the merits of his appeal. E.g., Knox v. Wyoming,

959 F.2d 866, 867-68 (10th Cir. 1992) (treating pro se application for certificate of

probable cause as a misfiled notice of appeal); Hoover v. United States, 268 F.2d 787,

788-89 (10th Cir. 1959) (treating motion to proceed on appeal in forma pauperis as notice

of appeal).

We turn to the merits of the appeal. Although it is apparent from McIntosh’s

appellate pleadings that he disagrees with the jury’s verdict, he fails to point to any

evidentiary or other rulings by the district court that might give rise to reversible error.

We therefore find no basis for reversing the judgment of the district court. Likewise,

because McIntosh has failed to identify a substantial question deserving of appellate

review, we find no basis for granting his request for a trial transcript at government

expense. See 28 U.S.C. § 753(f) (outlining standards for provision of trial transcript at

3 government expense).

AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge