UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-51069
Summary Calendar
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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this opinion should not be published and is not precedent except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Cir. 8 Sept. 1999) (unpublished).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).
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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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