F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 5, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
DWIGHT A. WILLIAMS,
Plaintiff-Appellant,
v. No. 04-6161
(D.C. No. 03-CV-47-R)
JODY BRADLEY, Individual and (W.D. Okla.)
official capacity; JOHN DOE,
Assistant Warden Thomas, Individual
and official capacity; DONALD
JACKSON, Assistant Warden, Official
and individual capacity; JOHN DOE,
Captain Scott, Official and individual
capacity; JOHN DOE, Security Officer
Cassida, Official and individual
capacity; OTIS D. SIMMONS,
Security officer, Official and
individual capacity; FIELDS, Officer,
Security officer, Official and
individual capacity; R. FUENTES,
Security Officer, Official and
individual capacity; J. VIDAURI,
Grievance Coordinator, Official and
individual capacity; P. SANDERS,
Grievance Coordinator, Official and
individual capacity; JANE DOE, Ms.
Bruener, Medical Director, Official
and individual capacity; AMY
LAMBERT, Nurse, Official and
individual capacity; JANE DOE, Ms.
McElroy, Official and individual
capacity; NANCY WHIPKEY,
Nurse, Official and individual
capacity; JANE DOE, Ms.
Calverley, Nurse, Official and
individual capacity; JANE DOE, Ms.
Kee, Nurse, Official and individual
capacity; JOHN DOE, Dr. Basinger,
Official and individual capacity;
JOHN DOE, Dr. Pruess, Official and
individual capacity; BRIAN
LAMBERT,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY , and McCONNELL , 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.
Plaintiff Dwight A. Williams, a prison inmate proceeding pro se, appeals
the district court’s adverse judgment on his claims brought pursuant to 42 U.S.C.
§ 1983. The district court adopted the report and recommendations of a
magistrate judge, and granted summary judgment to some of the defendants and
*
This order and judgment is not binding precedent, except under the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.
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dismissed others under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted. We affirm.
I. Appellate Jurisdiction - Timely Notice of Appeal
We first address the timeliness of Mr. Williams’ appeal. The notice of
appeal, due by May 6, 2004, was not filed until May 10, 2004. See
Fed. R. App. P. 4(a)(1)(A) (requiring notice of appeal to be filed within 30 days
of judgment). “The filing of a timely notice of appeal is an absolute prerequisite
to our jurisdiction.” United States v. Ceballos-Martinez , 387 F.3d 1140, 1143
(10th Cir. 2004) (further quotation omitted), cert. denied , 125 S. Ct. 624 (2004).
An inmate confined in an institution may be entitled to the benefit of the prison
mailbox rule, which provides that a notice of appeal “is timely if it is deposited in
the institution’s internal mail system on or before the last day for filing.” Fed. R.
App. P. 4(c)(1). This court has jurisdiction if Mr. Williams’ notice of appeal
complies with Rule 4(c)(1) or “if he has subsequently filed a declaration or
notarized statement that does.” Ceballos-Martinez , 387 F.3d at 1143.
In response to this court’s show cause order, Mr. Williams submitted a
statement with attachments demonstrating that he placed his notice of appeal in
the prison mail system on May 2, and that he authorized prepayment of postage
from his prison account, prior to the deadline of May 6. His pleading includes a
declaration under 28 U.S.C. § 1746 stating that the information is true and correct
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under penalty of perjury. We conclude that Mr. Williams’ statement conforms
with our requirements to show that the notice of appeal was filed timely. See
Price v. Philpot , 420 F.3d 1158, 1166-67 (10th Cir. 2005); Ceballos-Martinez ,
387 F.3d at 1145. Accordingly, we have jurisdiction to consider Mr. Williams’
appeal, and we proceed to the merits.
II. Merits
Mr. Williams’ first claim is based on his placement in administrative
segregation after contraband was found in a visiting room he had used shortly
before the discovery. He contends that defendants denied him his due process
rights in placing him and keeping him in segregation. He further asserts that the
conditions of his confinement there constituted cruel and unusual punishment. He
next complains that his due process rights were again violated when he was
placed in disciplinary segregation after having been found guilty of a misconduct
charge. He also alleges that defendants were deliberately indifferent to his
serious medical needs because of disputes over his medications. He further
charges that his various administrative grievances were not treated properly, and
that various defendants conspired to deprive him of his constitutional rights. 1
1
For the first time on appeal, Mr. Williams challenges the district court’s
dismissal, under § 1915(e)(2)(B)(ii), of his claims against four defendants who
were served with process, but who did not file a responsive pleading in the
district court. He also argues that he should have had more procedural
(continued...)
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We review de novo both the district court’s dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii) and its grant of summary judgment. McBride v. Deer , 240
F.3d 1287, 1289 (10th Cir. 2001). We liberally construe Mr. Williams’ pleadings
because he is proceeding pro se. Id.
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
judgment substantially for the reasons stated in the magistrate judge’s
February 20, 2004 recommendation, as adopted by the district court, and for the
reasons given by the district court in its April 6, 2004 order.
1
(...continued)
protections at his disciplinary hearing, but he did not present those arguments to
the district court. These issues are deemed waived on appeal because they were
not raised in the district court. Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d
1274, 1280 (10th Cir. 2003).
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The district court granted Mr. Williams’ motion to proceed on appeal
without prepayment of costs and fees. Mr. Williams is reminded that he is
obligated to continue making partial payments until the entire fee has been paid.
The jurisdictional show cause order is discharged. The judgment of the
district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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