                                                                             FILED
                                                                 United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                     Tenth Circuit

                             FOR THE TENTH CIRCUIT                    November 3, 2016
                         _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DEAN CARBAJAL,

      Plaintiff - Appellant,

v.                                                          No. 15-1349
                                               (D.C. No. 1:12-CV-02257-PAB-KLM)
STEPHAN M. SWAN, Physician                                   (D. Colo.)
Assistant, in his official capacity;
MICHAEL O'NEILL, Police Officer for
the Denver Police Department, in his
individual and official capacity; JAY
LOPEZ, Police Officer for the Denver
Police Department, in his individual and
official capacity; LARRY BLACK, Police
Officer for the Denver Police Department,
in his individual and official capacity; ST.
ANTHONY CENTRAL HOSPITAL, a
corporation; CENTURA HEALTH, a
corporation; APEX, a corporation;
CHUANG, Dr., Supervising Physician, in
his individual and official capacity;
THOMAS, Lieutenant, Lieutenant for the
Denver Police Department, in his
individual and official capacity; STEVEN
CARTER, Captain for the Denver Police
Department, in his individual and official
capacity; GILBERTO LUCIO, Police
Officer for the Denver Police Department,
in his individual and official capacity;
CITY AND COUNTY OF DENVER, a
political subdivision of the State of
Colorado; GREGORY J. ENGLUND;
MARCI L. HANSUE,

      Defendants - Appellees.
                      _________________________________

                                         ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
                 _________________________________

       Appellant has filed a Motion for Rehearing with Suggestion of Rehearing

En Banc, and has also submitted a supplement to that Motion. We have construed the

original motion as a petition for panel rehearing with a suggestion for rehearing en banc.

The petition for panel rehearing is denied on the merits by the original panel. The

petition and supplement were also circulated to all the judges of the court who are in

regular active service in accordance with Rule 35(b) of the Federal Rules of Appellate

Procedure. No judge in regular active service called for a poll, so the suggestion for

rehearing en banc is denied.

       The panel has sua sponte modified the Order issued on September 26, 2016; the

modified Order is attached. The Order dated September 26, 2016 is hereby withdrawn,

and the Clerk is directed to file the attached modified order nunc pro tunc to the filing

date of the original order, September 26, 2016.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                              2
                                                                             FILED
                                                                 United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                     Tenth Circuit

                             FOR THE TENTH CIRCUIT                   September 26, 2016
                         _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DEAN CARBAJAL,

      Plaintiff - Appellant,

v.                                                          No. 15-1349
                                               (D.C. No. 1:12-CV-02257-PAB-KLM)
STEPHAN M. SWAN, Physician                                   (D. Colo.)
Assistant, in his official capacity;
MICHAEL O'NEILL, Police Officer for
the Denver Police Department, in his
individual and official capacity; JAY
LOPEZ, Police Officer for the Denver
Police Department, in his individual and
official capacity; LARRY BLACK, Police
Officer for the Denver Police Department,
in his individual and official capacity; ST.
ANTHONY CENTRAL HOSPITAL, a
corporation; CENTURA HEALTH, a
corporation; APEX, a corporation;
CHUANG, Dr., Supervising Physician, in
his individual and official capacity;
THOMAS, Lieutenant, Lieutenant for the
Denver Police Department, in his
individual and official capacity; STEVEN
CARTER, Captain for the Denver Police
Department, in his individual and official
capacity; GILBERTO LUCIO, Police
Officer for the Denver Police Department,
in his individual and official capacity;
CITY AND COUNTY OF DENVER, a
political subdivision of the State of
Colorado; GREGORY J. ENGLUND;
MARCI L. HANSUE,

      Defendants - Appellees.
                      _________________________________

                                         ORDER
                          _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
                 _________________________________

       This court ordered Mr. Carbajal to show cause why his appeal should not be

dismissed because his notice of appeal was untimely filed. The parties have fully briefed

the issue. We conclude that the notice of appeal was untimely and we therefore lack

jurisdiction to hear this appeal.

       Mr. Carbajal, a Colorado state prisoner at the Arkansas Valley Correctional

Facility (“AVCF”), appears pro se. He was arrested in Denver in August 2010.

According to Mr. Carbajal, he was roughed up by members of the Denver Police

Department during the arrest and endured forced catheterization during treatment at

St. Anthony Central Hospital. In his subsequent suit under 42 U.S.C. § 1983,

Mr. Carbajal alleged numerous violations of his constitutional rights by law enforcement

officers and hospital personnel.

       Eventually, nearly all of Mr. Carbajal’s claims were dismissed with the exception

of excessive force claims against three law enforcement officers. Mr. Carbajal went to

trial on these claims in August 2015. On August 18, 2015, the jury returned unanimous

verdicts in favor of the defendants. Judgment on the verdicts was entered on August 20,

2015. Mr. Carbajal’s notice of appeal was due 30 days after the entry of judgment—or

September 19, 2015. See Fed. R. App. P. 4(a)(1)(A). However, because September 19,

2015, fell on a Saturday, the notice of appeal was not due until Monday, September 21,

2015. See Fed. R. App. P. 26(a)(1)(C).


                                            2
       The AVCF has a legal mail system. Nonetheless, sometime after 4 p.m. on

Friday, September 18, 2015, Mr. Carbajal deposited the notice of appeal in AVCF’s

regular mail system, with a certificate of mailing to the district court and defendants’

counsel. The notice was docketed as filed on September 24, 2015—three days beyond

the September 21, 2015 deadline.

       The question is whether Mr. Carbajal’s notice of appeal should be determined to

have been filed on September 18, 2015, under the prison mailbox rule—the judicially

created rule in Fed. R. App. P. 4(c)(1), which provides that

       [i]f an inmate confined in an institution files a notice of appeal in . . .
       a civil . . . case, the notice is timely if it is deposited in the institution’s
       internal mail system on or before the last day for filing. If an institution has
       a system designed for legal mail, the inmate must use that system to receive
       the benefit of this rule. Timely filing may be shown by a declaration in
       compliance with 28 U.S.C. § 1746 or by a notarized statement, either of
       which must set forth the date of deposit and state that first-class postage has
       been prepaid.
       In interpreting Rule 4(c)(1), this court held that “[a]n inmate can establish the date

on which he . . . gave the papers to be filed with the court to a prison official in one of

two ways.” Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005). “[I]f the prison has a

legal mail system, then the prisoner must use it as the means of proving compliance with

the mailbox rule.” Id. (internal quotation marks omitted). Alternatively, “if the inmate

does not have access to a legal mail system—or if the existing legal mail system is

inadequate to satisfy the mailbox rule,” the inmate must “submit a declaration in

compliance with 28 U.S.C. § 1746 or notarized statement setting forth the notice’s date of




                                              3
deposit with prison officials and attest that first-class postage was pre-paid.”

Id. (brackets and internal quotation marks omitted).

       It is undisputed that AVCF has a legal mail system, but Mr. Carbajal failed to use

it. In the declaration he filed with this Court in response to the order to show cause,

Mr. Carbajal stated that he placed the notice of appeal in the regular mail on September

18, 2015, first-class postage prepaid. He eventually developed an argument that AVCF’s

legal mail system was inadequate on September 18. Mr. Carbajal “has the burden of

proof on this issue.” Price, 420 F.3d at 1165. He has not met this burden.

       Prisoners have access to AVCF’s mailroom for 30 minutes each day on Monday

through Friday afternoons, between either 3:00 to 3:30 or 3:30 to 4:00. Mr. Carbajal does

not dispute this fact, but argues that on Friday, September 18, 2015, two correction

officers, out of spite, refused to let him go to the mailroom. At the same time,

Mr. Carbajal says that he did not receive the materials he needed to file the notice of

appeal until sometime after 4:00 p.m., when the mailroom was already closed. He also

argues that prisoners do not have access to the mailroom when the facility is on

lockdown, and in any event, AVCF’s legal mail system is inadequate because it closes at

4 p.m. and is not open on weekends. But defendants produced evidence that other

prisoners used the legal mail system on September 18, and there is no evidence that the

facility was on lockdown at any time during the day. Moreover, we agree with

defendants that a prison is not required to have a system that is available 24-hours-a-day,

seven days a week. Here, it is enough that Mr. Carbajal had access to the system for

some portion of the day on which his court papers were due. Moreover, Mr. Carbajal

                                              4
does not suggest, nor is there any evidence that he was denied access by the guards to

AVCF’s legal mail system or that the system was closed on Monday, September 21,

2015—the day the notice of appeal was due.

       “The filing of a timely notice of appeal is an absolute prerequisite to our

jurisdiction.” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir. 1996).

Mr. Carbajal’s notice was untimely and as a consequence this appeal is dismissed for lack

of jurisdiction.1

                                                  Entered for the Court


                                                  Gregory A. Phillips
                                                  Circuit Judge




       1
           The order assessing fees entered by the clerk’s office on March 8, 2016, is
vacated.
                                              5
