                                                                FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                          January 18, 2008
                             TENTH CIRCUIT              Elisabeth A. Shumaker
                                                            Clerk of Court

FRANK MUNIZ,

           Plaintiff-Appellant,                No. 07-2054
     v.                                      (D. New Mexico)
BEN CAVAZOS, Correctional             (D.C. No. 03-30-MCA/RHS)
Officer, Central New Mexico
Correctional Facility; NEW
MEXICO DEPARTMENT OF
CORRECTIONS; STATE OF NEW
MEXICO; GARY JOHNSON,
Former New Mexico Governor;
ROBERT PERRY, Former New
Mexico Corrections Secretary;
RONALD LYTLE, Warden,
Central New Mexico Correctional
Facility; BRIAN CULP, Associate
Warden, Central New Mexico
Correctional Facility; CARLOS
TOERS-BIJNS, Associate Warden,
Central New Mexico Correctional
Facility; MAJOR WHITE, Central
New Mexico Correctional Facility;
VICTOR VALLEJOS, Lieutenant,
Central New Mexico Correctional
Facility; PITA FINCHER,
Lieutenant, Central New Mexico
Correctional Facility; JERRY
MARTINEZ, Lieutenant, Central
New Mexico Correctional Facility;
LARRY MARTINEZ, Lieutenant,
Central New Mexico Correctional
Facility; CAPTAIN RUPERT,
Central New Mexico Correctional
Facility; CENTRAL NEW
MEXICO RECEIVING AND
DIAGNOSTIC CENTER-RDC,
 unknown named authorized agent;
 LOUIS SANCHEZ, Classification
 Officer, Central New Mexico
 Correctional Facility; Ms.
 BEN-COMO, Caseworker, Central
 New Mexico; ELMER BUSTOS,
 New Mexico Director of Adult
 Prisons; NEW MEXICO ADULT
 PRISONS, CENTRAL BUREAU
 OF CLASSIFICATION - CBC,
 Unknown named authorized agents;
 JAMES DICKIE, Former New
 Mexico State Police Officer,

              Defendants-Appellees.



                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges. **



      Frank Muniz, a New Mexico state prisoner proceeding pro se, appeals the

district court’s decision denying his Motion to File Retarded Appeal. Because



      *
         This order and judgment is not binding precedent except under the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.

      **
          After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.

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Mr. Muniz filed his motion outside the period allowed by Rule 4(a)(6) of the

Federal Rules of Appellate Procedure, we affirm the district court’s decision.



                                 I. BACKGROUND

      In January 2003, Mr. Muniz filed this 42 U.S.C. § 1983 action against New

Mexico police officers and prison officials alleging that he had been wrongfully

accused of bringing contraband into the Central New Mexico Correctional

Facility. He also alleged that prison officials wrongfully removed him from the

general prison population, placed him in a disciplinary lockup, and inserted false

information in his disciplinary file.

      Adopting a magistrate judge’s report and recommendation, the district court

granted the defendant officials’ motion to dismiss and then denied Mr. Muniz’s

motion to amend the complaint. The court entered judgment for the defendants

on February 11, 2005.

      On January 29, 2007, Mr. Muniz filed a “Motion to File Retarded Appeal to

Court’s Order Denying Plaintiff’s Motion to Amend and Adopting Magistrate

Judge’s Recommended Disposition.” Mr. Muniz stated that he had not received

the district court’s rulings and entry of judgment. As a possible explanation for

the failure to receive the court documents, Mr. Muniz reported that prisoners in

the facility in which he resided had regularly been placed in lockdowns

“suspending all privileges and overlooking rights.” Rec. doc. 47, at 2. He


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reminded the court that he had filed change of address forms in December 2005

and January 2006, and he argued that these documents demonstrated his good

faith belief that the court had not yet ruled on the defendants’ motion to dismiss.

Accordingly, Mr. Muniz asked the court to allow him to file an appeal of the

district court’s rulings.

       The district court interpreted Mr. Muniz’s request as a motion to file an

appeal under Rule 4(a)(6) of the Federal Rules of Appellate Procedure and denied

the motion. Mr. Muniz now appeals that decision.



                                  II. DISCUSSION

       Mr. Muniz’s appeal involves the interpretation Rule 4(a)(6) of the Federal

Rules of Appellate Procedure. We therefore examine the district court’s decision

de novo. See Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir. 2004). Upon

considering the text of Rule 4(a)(6), we agree with the district court’s denial of

Mr. Muniz’s motion.

       Rule 4 of the Federal Rules of Appellate Procedure provides that, with

certain exceptions not applicable here, “[i]n a civil case . . . the notice of appeal .

. . must be filed with the district clerk within 30 days after the judgment or order

appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). Under Rule 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 all the following conditions are
              satisfied:

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             (A) the court finds that the moving party did not receive
             notice under Federal Rule of Civil Procedure 77(d) of the
             entry of the judgment or order sought to be appealed
             within 21 days after entry;
             (B) the motion is filed within 180 days after the judgment
             or order is entered or within 7 days after the moving party
             receives notice under Federal Rule of Civil Procedure
             77(d) of the entry, whichever is earlier; and

             (C) the court finds that no party would be prejudiced.

(emphasis added).

      Rule 4(a)(6) thus sets a 180-day deadline for filing a motion to reopen the

time to file an appeal, even though a party may not have received actual notice of

a district court ruling until after the 180 days have elapsed. See Clark v. Lavallie,

204 F.3d 1038, 1040 (10th Cir. 2000) (stating that the 180-day limit is “specific

and unequivocal”). We have explained that “[t]he essence of Rule 4(a)(6) is

finality of judgment” and that “[w]hile application of that concept infrequently

may work misfortune, it is an overriding principle which demands enforcement

without distinction between counseled and uncounseled cases.” Id. at 1041.

“[N]othing within Rule 4(a)(6) indicates it is permissive or that its limitations

may be waived for equitable reasons.” Id. at 1040.

      Mr. Muniz’s motion to reopen the time to file an appeal was filed well

beyond the 180-day period. His arguments about his lack of notice of the district

court’s rulings are therefore unavailing. Although, in certain circumstances, a




                                         -5-
prisoner’s failure to receive legal documents may support a First Amendment

claim for denial of access to the courts, such a claim is not before us here. See

Simkins v. Bruce, 406 F.3d 1239, 1242-43 (10th Cir. 2005) (noting that a plaintiff

prisoner alleging denial of access to the courts based on a failure to receive legal

mail must allege intentional conduct interfering with that mail—but not

malicious motive—and “actual injury by frustrating, impeding, or hindering his

efforts to pursue a legal claim”) (internal quotation marks and alterations

omitted).

                                 III. CONCLUSION

      Accordingly, we AFFIRM the district court’s decision denying Mr. Muniz’s

“Motion to File Retarded Appeal.”



                                 Entered for the Court,



                                 Robert H. Henry
                                 Chief Circuit Judge




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