Smith v. Sheriff's Office

Opinion

FILED

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

FOR THE TENTH CIRCUIT December 22, 2025

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Christopher M. Wolpert

Clerk of Court

NATHAN J. SMITH; HOLLY M. SMITH,

Plaintiffs - Appellants,

v. No. 25-1076 (D.C. No. 1:23-CV-01738-CNS-SBP)

SHERIFF’S OFFICE; NICOLE BRIGGS; (D. Colo.) KOPP; JASON SAWYER, SGT; WILLIAM PERRY; GRAND JUNCTION POLICE DEPARTMENT; MESA COUNTY SHERIFF; MATTHEW BARRETT; MICHAEL GRATTEN; FLYNN; BRAUHM; DISTRICT ATTORNEYS OFFICE; TEARSA OLSEN, individually and DDA & 25 other agents, unknown identities or positions & all participating police, unknown Identities & all other divisions that failed to comply with their positions/responsibilities,

Defendants - Appellees,

and

WCDTF; GJPD; THE SWAT TEAMS; TASK FORCES, both Sheriff’s and GJPD task forces, SWAT teams; CBI; FEDERAL BUREAU OF INVESTIGATION; DRUG ENFORCEMENT ADMINISTRATION, 25 other agents, all participating police, specific officers; BRECHLIN; ERICK OLSEN; JIM FOGG, LTN; RICHARD TAFOYA; PRUNTY, SGT; COREY DILKA; BRIAN PRATTY; CARP, Deputy; DAVE SANDERS; DOHENY; SANDELL; RAY; HANSEN; K STUCK; LINDSAY; TRAVIS PECK; EVERETT BLANCK; STODDER, Deputy;

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ROSALES, and her partner an African- American male; RUMBAUGH; JACOB EDMISTON; DA; DAN RUBENSTEIN; RICH TUTTLE; JENNIFER SPRINGER; WESTERN SLOPE DRUG TASK FORCE; MESA COUNTY SHERIFFS DRUG TASK FORCE; MESA COUNTY SWAT TEAM; MESA COUNTY UAV DIVISION; DAVE RANDALL; RICK TAFT; ERIC SPERBER, Lt.; GJPD INVESTIGATIONS DIVISION; JIM FULLER, Sgt.; CRIMES AGAINST PROPERTY DIVISION; CRIMES AGAINST PERSONS DIVISION; BATTLEWEST DIVISION; EVIDENCE DIVISION; MARIJUANA CODE ENFORCEMENT DIVISION; ADA COORDINATOR OF MESA COUNTY; CBI MARIJUANA DIVISION; VALARIE ROBISON; DANIEL RUBENSTEIN, DA; JENNIFER SPRINGER, SDDA; RICHARD TUTTLE, SDDA,

Defendants.

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ORDER AND JUDGMENT *

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Before HARTZ, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge.

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*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Nathan J. Smith and Holly M. Smith, proceeding pro se, appeal from the

district court’s denial of their motion to extend their time to appeal from the

dismissal of their civil rights suit. We dismiss this appeal for lack of jurisdiction

because the Smiths failed to file a timely notice of appeal.

BACKGROUND

The Smiths filed a civil rights suit against numerous defendants in 2023. They

served some, but not all, of the defendants with process. Defendants who had been

served filed motions to dismiss, which the district court granted on September 9,

2024. The district court entered a separate final judgment that same day.

The Smiths did not file a notice of appeal until December 11, 2024. This court

assigned that appeal No. 24-1490. On December 16, 2024, this court dismissed

No. 24-1490 for lack of jurisdiction because the notice of appeal was untimely.

See Smith v. Sheriff’s Office, No. 24-1490, 2024 WL 5711342, at *1 (10th Cir.

Dec. 16, 2024) (unpublished).

On January 22, 2025, the Smiths filed in the district court a request to reopen

the time to file an appeal or to file an untimely appeal. The district court denied

relief on January 28, 2025. Construing the motion as one under Fed. R. App. P.

4(a)(5)(A), the district court held the Smiths filed their motion too late. See

Fed. R. App. P. 4(a)(5)(A)(i) (providing that a party must move to extend the time to

file an appeal “no later than 30 days after” the applicable appeal period). The district

court further held the Smiths failed to establish excusable neglect or good cause, as

required by Fed. R. App. P. 4(a)(5)(A)(ii).

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On March 3, 2025, the district court filed the Smiths’ notice appealing the

January 28 decision. Noting the notice was filed more than 30 days after the district

court’s order, this court directed the Smiths to submit a memorandum brief

addressing timeliness. The Smiths responded. The timeliness issue was referred to

the panel assigned to hear the appeal, and the parties then submitted merits briefs.

DISCUSSION

“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional

requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). “As [the Supreme Court

has] long held, when an appeal has not been prosecuted in the manner directed,

within the time limited by the acts of Congress, it must be dismissed for want of

jurisdiction.” Id. at 213 (internal quotation marks omitted). Accordingly, “[w]e

‘routinely and uniformly dismiss untimely appeals for lack of jurisdiction.’” Bunn v.

Perdue, 966 F.3d 1094, 1097 (10th Cir. 2020) (quoting Bowles, 551 U.S. at 210).

Because the Smiths have not shown their notice of appeal was timely, we do not

reach the merits and instead dismiss this appeal for lack of jurisdiction.

Generally in a civil case a party must file a notice of appeal within 30 days.

See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). The Smiths did not meet this

time limit. Because the district court denied their motion on January 28, 2025, the

thirty-day appeal period expired on Thursday, February 27, 2025. 1 The district court

1 The Smiths incorrectly posit that February 28 was the deadline. The first day to be counted is the day after the order is entered. See Fed. R. App. P. 26(a)(1)(A). Starting January 29, the thirtieth day is February 27.

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filed the Smiths’ notice of appeal on Monday, March 3. The Smiths suggest they

were trying to upload documents on February 27, but that the uploading did not

complete until 12:10 a.m. on Friday, February 28. See Aplts. Juris. Br., Doc. 13-2

at 9. They also state they filed a notice of appeal at 7:10 p.m. on February 28, after

the court’s business hours. See id.; see also id., Doc. 13-1 at 1. Under either

scenario, however, the Smiths fail to show they filed a notice of appeal on or before

the deadline of February 27, 2025.

An exception to the general rule allows any party 60 days to appeal if the

United States, a United States agency, or a United States employee is “one of the

parties.” § 2107(b); Fed. R. App. P. 4(a)(1)(B). The Smiths invoke this provision,

asserting the 60-day appeal period applies because United States agencies and

employees were parties to this litigation.

Assuredly, the caption of the fourth amended complaint named as defendants

two federal agencies as well as unknown federal employees. Inclusion in the caption,

however, is of no avail to plaintiffs. See U.S. ex rel. Eisenstein v. City of N.Y.,

556 U.S. 928, 935 (2009) (“A person or entity can be named in the caption of a

complaint without necessarily becoming a party to the action.”). The Smiths have

not shown they ever served any of the federal defendants, 2 and we do not consider an

2 One of the agencies named in the caption was the Federal Bureau of Investigation (FBI). In their response to this court’s jurisdictional order, the Smiths state “the served papers . . . were dropped off at the FBI [office in] Grand Junction . . . . The federal defendants[] failed to appear, failed to respond to a summons, and failed to defend themselves.” Aplts. Juris. Br., Doc. 13-2 at 11; see also id. at 12 (“Bottom line is that the federal defendants . . . failed to respond to a summons.”).

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unserved defendant to be a party, see Bristol v. Fibreboard Corp., 789 F.2d 846, 847

(10th Cir. 1986) (per curiam).

The Smiths’ notice of appeal was due on February 27, 2025. 3 Because they

failed to file their notice of appeal on or before that date, their appeal is untimely and

we lack jurisdiction to consider it.

CONCLUSION

We dismiss the appeal for lack of jurisdiction. We grant the Smiths’ motion to

proceed without prepayment of fees and costs. We deny as moot the Appellees’

motion to strike the Smiths’ opening brief.

Entered for the Court

Carlos F. Lucero Senior Circuit Judge

The quoted assertions are not a proper proof of service, and nothing we can do can construe them as such. The district court’s docket does not reflect service on any federal defendant, and our careful review does not reflect such service.

3 To the extent the Smiths request this court create or apply an equitable exception to the filing deadline, see, e.g., Aplts. Juris. Br., Doc. 13-2 at 10 (asking “for a mistake exception to the rules” as a “remedy for all of us [court and parties] being in the wrong”); id. at 17 (“request[ing] special permission from the court of appeals”), we do not have the ability to do so. See Bowles, 551 U.S. at 214 (recognizing courts have “no authority to create equitable exceptions to jurisdictional requirements”).