[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13263 MARCH 26, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 5:08-cv-00004-WTM-JEG
ELMON MCCARROLL ELMORE, JR.,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
ASSISTANT WARDEN PEGGY ANN COOPER,
Coffee Correctional Facility,
individually and in her official capacity,
CORRECTIONS CORPORATION OF AMERICA,
a Tennessee Corporation,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 26, 2012)
Before CARNES, BARKETT, and ANDERSON, Circuit Judges.
PER CURIAM:
Elmon Elmore, Jr., a state prisoner proceeding pro se, appeals the district
court’s denial of his Federal Rule of Civil Procedure 59(e) motion to alter or
amend its grant of summary judgment in favor of Corrections Corporation of
America and Peggy Ann Cooper, who is the assistant warden of Corrections
Corporation’s Coffee Correctional Facility in Nicholls, Georgia.
I.
In January 2008, Elmore filed a 42 U.S.C. § 1983 complaint against
Corrections Corporation and Cooper, alleging that, while he was an inmate at
Coffee, Corrections Corporation and Cooper violated his constitutional right to
access the courts by not allowing him to use a special mailing allowance to mail:
(1) a presuit notice of claim under the Georgia Tort Claims Act, (2) a habeas
corpus petition, and (3) an unrelated § 1983 complaint. The district court granted
summary judgment in favor of Corrections Corporation and Cooper on September
23, 2009, finding that the constitutional right to access the courts did not
encompass Elmore’s state tort claim and that there was no genuine issue of
material fact whether Corrections Corporation or Cooper impeded Elmore’s efforts
to file a habeas corpus petition or a § 1983 complaint. Elmore then filed a motion
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to alter or amend the court’s judgment under Fed. R. Civ. P. 59(e), which the court
denied on November 6, 2009.
After Elmore requested a status update on his Rule 59(e) motion in January
2010, the court informed him that it had denied his motion more than two months
earlier. In response he filed a motion under Federal Rule of Appellate Procedure
4(a)(6), asking the court to reopen his time to appeal the court’s grant of summary
judgment and its order denying his Rule 59(e) motion. See Fed R. App. P. 4(a)(6)
(“The district court may reopen the time to file an appeal for a period of 14 days
after the date when its order to reopen is entered, but only if [certain] conditions
are satisfied . . . .”). The court denied that motion, but we vacated that denial and
remanded. Elmore v. Cooper, 427 F. App’x 831, 833 (11th Cir. 2011)
(unpublished).
On remand, the district court granted Elmore’s Rule 4(a)(6) motion to
reopen the time to file an appeal of its November 6, 2009 order denying the Rule
59(e) motion. The court, however, denied his motion to reopen the time to file an
appeal of the grant of summary judgment. Elmore then filed a notice of appeal
challenging only the court’s denial of his Rule 59(e) motion.1
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Even if we construe Elmore’s NOA to include the court’s order granting summary
judgment, see Wainwright v. Sec’y, Dep’t of Corr., 537 F.3d 1282, 1284–85 (11th Cir. 2007), we
lack jurisdiction to consider whether the district court erred in granting summary judgment. “The
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II.
Elmore contends that the district court erred in denying his Rule 59(e)
motion, arguing that he properly pleaded his access-to-the-courts claim and that he
clearly showed that Corrections Corporation and Cooper caused him actual injury.
We review for abuse of discretion the district court’s denial of a Rule 59(e)
motion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1343 n.20 (11th Cir.
2010). “The only grounds for granting a Rule 59 motion are newly-discovered
evidence or manifest errors of law or fact. A Rule 59(e) motion cannot be used to
relitigate old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.” Id. at 1344 (alterations, citation, and
quotation marks omitted).
“[P]risoners have a constitutional right of access to the courts.” Barbour v.
Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). “[I]n order to assert a claim arising
timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate
jurisdiction.” Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2002) (quotation marks
omitted). Elmore had until December 7, 2009—or 30 days after the court’s November 6, 2009
denial of his Rule 59(e) motion—to file a NOA of the court’s grant of summary judgment. See
Fed R. App. P. 4(a)(1)(A), 4(a)(4)(A)(iv); Fed. R. App. P. 26(a)(1)(C). He did not do so, and the
court later denied his Rule 4(a)(6) motion to reopen the time he had to file a NOA of summary
judgment order. Elmore does not appeal the court’s denial of his Rule 4(a)(6) motion as to the
summary judgment order. So, even if we construe his NOA to encompass the court’s grant of
summary judgment, he failed to timely file the NOA as to the summary judgment order, and we
lack jurisdiction to consider whether the district court erred in granting summary judgment. See
Moton, 631 F.3d at 1341 n.2.
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from the denial of meaningful access to the courts, an inmate must first establish
an actual injury[, which he may do] by demonstrating that [his] efforts to pursue a
nonfrivolous claim were frustrated or impeded by a deficiency in the prison library
or in a legal assistance program or by an official’s action.” Id. (citation omitted)
But only the prosecution of a direct appeal of a conviction, a habeas corpus
petition, or a civil rights suit are protected by the constitutional right to access the
courts. See Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998).
The district court did not abuse its discretion by denying Elmore’s Rule
59(e) motion. In that motion, Elmore sought to relitigate the motion for summary
judgment, which is an improper use of a Rule 59(e) motion. See Jacobs, 626 F.3d
at 1344. He failed to identify any newly discovered evidence or any manifest
errors of law or fact. Under the policy in effect at Coffee during the relevant time
period, Elmore had access to enough free postage to mail his habeas corpus
petition and his § 1983 complaint. The court did not commit a manifest error
when it concluded that, because he could have used that free postage, there was
not a genuine issue of material fact whether Corrections Corporation or Cooper
had unconstitutionally frustrated or impeded his claims. See Hoppins v. Wallace,
751 F.2d 1161, 1162 (11th Cir. 1985) (“The constitutional right to access to the
courts entitles indigent prisoners to some free stamps . . . but not unlimited free
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postage . . . .”). Nor is his state tort claim protected by his constitutional right to
access the courts. See Bass, 143 F.3d at 1445.
AFFIRMED.
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