     Case: 10-10851          Document: 00511258452     Page: 1    Date Filed: 10/08/2010




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                           October 8, 2010

                                           No. 10-10851                     Lyle W. Cayce
                                         Summary Calendar                        Clerk



CLAY D. SANDERS,

                                                   Plaintiff–Appellant,
v.

JOHN MARTINEZ, Trooper; CLAY COFFEY,

                                                   Defendants–Appellees.




                        Appeal from the United States District Court
                         for the Northern District of Texas, Abilene
                                      No. 1:08-CV-188


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant–Appellee John Martinez has filed a motion to dismiss
plaintiff–appellant Clay Sanders’s (Texas prisoner #1467793) appeal based on
a lack of jurisdiction because Sanders did not timely file his notice of appeal.
        Sanders’s notice of appeal does not specify the judgment or order being
appealed.1 We will construe it generously to appeal both the district court’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            See FED . R. APP . P. 3(c)(1)(B).
   Case: 10-10851           Document: 00511258452       Page: 2   Date Filed: 10/08/2010

                                             No. 10-10851

denial of his motion for an extension of time to file a notice of appeal and the
district court’s summary judgment for Martinez.
       On July 29, 2010, Sanders filed a motion for extension of time to file a
notice of appeal, claiming that his transfer between prison units prevented him
from filing a timely notice of appeal. In his motion, Sanders asserted that he
was transferred between prison units on June 18, 2010, and did not regain
access to the Indigent Mail Program until June 26, 2010, on which date he
provided the court with a notice of his change of address. Sanders requested an
extension of time as “necessary for reasons beyond his control, such as unit
transfers, transient status, and use of the Uniform Access to Courts Indigent
Mail Process.” The district court found that Sanders had not provided any
explanation for why he was unable to file his notice of appeal between June 26
and July 22, 2010. The district court denied the motion, finding that Sanders
had not shown good cause for the extension of time.2 The district court did not
abuse its discretion in denying the extension motion,3 and we affirm that order.
       Sanders’s notice of appeal of the district court’s summary judgment for
Martinez was untimely; therefore, this court does not have jurisdiction to hear
his appeal of the judgment.4 Sanders had 30 days to file a notice appeal with the
district court from the date judgment was entered.5 The judgment was entered
on June 22, 2010. Sanders filed his notice of appeal on August 19, 2010, outside
of the prescribed time.

       2
           See FED . R. APP . P. 4(a)(5)(A)(ii).
       3
        See Allied Steel, Gen. Contractor v. City of Abilene, 909 F.2d 139, 142 (5th Cir. 1990)
(“We review extensions of time under FRAP 4(a) for abuse of discretion.”) (citing Chipser v.
Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979)).
       4
         Anderson v. Pasadena Ind. Sch. Dist., 184 F.3d 439, 447 (5th Cir. 1999) (holding that
the court did not have jurisdiction to hear an appeal after an untimely filing of a notice of
appeal).
       5
           FED . R. APP . P. 4(a)(1)(A).

                                                   2
  Case: 10-10851   Document: 00511258452    Page: 3   Date Filed: 10/08/2010

                                 No. 10-10851

                             *        *         *
     The order denying the extension of time to file a notice of appeal is
AFFIRMED; the motion to dismiss the appeal of the summary judgment is
GRANTED.




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