                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       November 8, 2005
                           FOR THE TENTH CIRCUIT
                                                                          Clerk of Court

    LUKE REED,

               Plaintiff-Appellant,

     v.                                                  No. 04-3477
                                                 (D.C. No. 03-CV-3492-GTV)
    DAVID R. MCKUNE, Warden,                               (D. Kan.)
    Lansing Correctional Facility;
    WILLIAM L. CUMMINGS, Secretary
    of Corrections Designee, Kansas
    Department of Corrections; PATRICK
    MCKEE, General Manager of Food
    Service/Aramark, Lansing
    Correctional Facility; MIKE NEVE,
    Deputy Warden, Lansing Correctional
    Facility; E. L. RICE, Unit Team
    Member, Lansing Correctional
    Facility; KURT HOLTHAUS, Unit
    Team Member, Lansing Correctional
    Facility; COLLETTE
    WINKELBAUER, Classification
    Member, Lansing Correctional
    Facility,

               Defendants-Appellees.


                                       ORDER *




*
       This order is not binding precedent, except under the doctrines of law of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.
Before LUCERO, ANDERSON, and BRORBY, 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.

      Luke Reed, an inmate in a Kansas correctional facility, has filed an

appellate brief contending that the district court erred in dismissing his

civil-rights action. We determine that Mr. Reed, who is proceeding pro se, has

not timely filed a document in this court which may be construed as a notice of

appeal. As a consequence, we dismiss this appeal.

                                 BACKGROUND

      In the district court, Mr. Reed brought suit under 42 U.S.C. § 1983, alleging

that defendants had violated his constitutional rights by (1) refusing to pay for

1997 damage to his property, (2) providing an inadequate diet and unsanitary

conditions, (3) retaliating for his filing prison grievances procedures, and (4)

imposing unlawful discipline. Early in the litigation, on August 13, 2004, the

district court denied Mr. Reed’s motion for appointment of counsel and motions

for service of process. Mr. Reed filed a notice of appeal of this decision. Because

the order was not a final or immediately appealable decision and no extraordinary


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circumstances were present, this court lacked jurisdiction over the proposed

appeal. See Cotner v. Mason, 657 F.2d 1390, 1392 (10th Cir. 1981).

      While Mr. Reed’s attempt at an interlocutory appeal was pending, the

district court addressed the merits of the case. It concluded that the applicable

statute of limitations barred Mr. Reed’s claim for property damages. As for issues

concerning food and unsanitary kitchen conditions, the district court dismissed

these claims because the alleged situation was unpleasant, but insufficiently

serious to amount to a civil-rights violation. Alternatively, Mr. Reed failed to

allege a culpable state of mind and, in one instance, failed to exhaust the prison

grievance process. Mr. Reed’s retaliation claim was dismissed for lack of

causation allegations, and the unlawful discipline claim was dismissed without

prejudice because the imposed fine had not been invalidated.

      The district court entered an order and separate judgment dismissing the

entire action on November 30, 2004. Mr. Reed did not file a timely notice of

appeal after that disposition. However, he filed a motion for appointment of

appellate counsel on December 20, 2005.

                                   DISCUSSION

      Under Rule 3 of the Federal Rules of Appellate Procedure, federal appellate

jurisdiction is “condition[ed] . . . on the filing of a timely notice of appeal.” Smith

v. Barry, 502 U.S. 244, 245 (1992). A notice of appeal must “specify the party or


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parties taking the appeal; . . . designate the judgment, order or part thereof being

appealed; and . . . name the court to which the appeal is taken.” Fed. R. App. P.

3(c)(1)(A)-(C). The appellate court “has jurisdiction to review only the judgment

or part of the judgment designated in the notice of appeal.” Averitt v. Southland

Motor Inn of Okla., 720 F.2d 1178, 1180 (10th Cir. 1983).

      Notices of appeal, however, are construed liberally. Smith, 502 U.S. at 248.

“[W]hen papers are technically at variance with the letter of Rule 3, a court may

nonetheless find that the litigant has complied with the rule if the litigant’s action

is the functional equivalent of what the rule requires.” Id. (internal quotation

marks and brackets omitted). The convention of liberal construction extends to an

avoidance of “denying review of issues that the parties clearly intended to

appeal.” Averitt, 720 F.2d at 1180.

      Moreover, in Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir.

1988) (en banc), the Tenth Circuit held that Rule 4(a)(2) of the Federal Rules of

Civil Procedure allows a premature notice of appeal filed from a nonfinal

judgment to ripen upon entry of a subsequent final judgment and save the appeal.

The Lewis rule, however, has its limitations. Although a subsequent order may

ripen a notice of appeal of a nonfinal order, the notice confers jurisdiction over

only those orders in existence at the time it was filed. Nolan v. U.S. Dep’t of

Justice, 973 F.2d 843, 846 (10th Cir. 1992). The filing of a final order “does not


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automatically effectuate the appeal of every judgment or order rendered in the

entire case.” Id. A second or amended notice is necessary to preserve the final

adjudication for review.

      Another limitation implicit in the Lewis standard is that the order leading to

the premature notice of appeal must have independent indicia of finality. As the

Supreme Court has explained, Rule 4(a)(2) does not “permit[] a notice of appeal

from a clearly interlocutory decision . . . to serve as a notice of appeal from the

final judgment.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S.

269, 276 (1991). Rather, it “permits a notice of appeal from a nonfinal decision to

operate as a notice of appeal from the final judgment only when a district court

announces a decision that would be appealable if immediately followed by the

entry of judgment.” Id. In such a case, “a litigant’s confusion is understandable,

and permitting the notice of appeal to become effective when judgment is entered

does not catch the appellee by surprise.” Id. See also Hinton v. City of Elwood,

Kan., 997 F.2d 774, 778 (10th Cir. 1993) (stating that the “court’s reasoning in

Lewis was that an interlocutory order disposing of less than all the claims, though

lacking in technical formal finality, would likely remain unchanged in its form and

content”) (quotation omitted).

      This court has considered whether the principles expressed in either Smith

or Lewis provide us with jurisdiction over this appeal. Mr. Reed’s motion for


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appointment of counsel on appeal provides the sole possibility for a Smith

analysis. That motion broadly refers to the violation of his constitutional rights

and his entitlement to relief. However, it does not specify the order appealed

from–the denial of appointed counsel or the entry of final judgment. Accordingly,

the motion lacks a basic requirement under Rule 3 and cannot be considered the

functional equivalent of a notice of appeal.

      It could be argued that Mr. Reed’s premature notice of appeal triggered the

ripening principle recognized in the Lewis case. We note that only one district

court order was in existence at the time Mr. Reed filed his notice. The existing

order merely denied his motion for appointment of counsel and motions for service

of process. It is apparent that this order was clearly interlocutory, with no indicia

of finality. As a consequence, the notice of appeal was ineffective to confer

jurisdiction upon this court for our review of any issue.

                                   CONCLUSION

      We DISMISS Mr. Reed’s appeal for lack of jurisdiction. We deny as moot

Mr. Reed’s motion for appointment of counsel on appeal and grant his motion to




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proceed in forma pauperis on appeal. We remind Mr. Reed of his obligation to

continue making partial payments until he has paid the entire fee.



                                      Entered for the Court



                                      Stephen H. Anderson
                                      Circuit Judge




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