                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    CALVIN DEAN PETERS,

                Plaintiff-Appellant,

    v.                                                   No. 08-2302
                                            (D.C. No. 1:08-CV-00268-MCA-WDS)
    JOE WILLIAMS;                                         (D. N.M.)
    VINCENT WIGGINS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.



         Plaintiff-appellant Calvin Dean Peters filed a claim under 42 U.S.C. § 1983

alleging that, since 2000, the reduction in the variety of legal materials and

library facilities in New Mexico’s prisons has effectively denied him his right to

access the courts as guaranteed by the First Amendment. Holding that plaintiff



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
did not allege active interference with his preparation and filing of papers, the

district court dismissed the complaint under the authority of 28 U.S.C.

§ 1915(e)(2) and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief can be granted. We affirm.

       We first pause to examine our jurisdiction given that plaintiff’s notice of

appeal was untimely. See United States v. Gonzales, 531 F.3d 1198, 1200

(10th Cir. 2008) (“We have an independent duty to examine our appellate

jurisdiction.”) Under Fed. R. App. P. 4(a)(1)(A), the thirty-day deadline for filing

a timely appeal in this case expired on October 30, 2008. The deadline for filing

a timely Rule 4(a)(5) motion for extension of time expired on Monday, December

1, 2008. See Fed. R. App. P. 26(a)(3); see also Fed. R. App. P. 4(a)(5)(C) (“No

extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or

10 days after the date when the order granting the motion is entered, whichever is

later.”).

       Plaintiff filed a timely Rule 4(a)(5) motion in the district court on

November 5, 2008. On November 12, 2008, the district court granted the motion,

mistakenly giving plaintiff “the additional thirty (30) days provided by

Fed. R. App. P.4(a)(5)(C) to file a notice of appeal.” R. at 57. Pursuant to

Rule 4(a)(5)(C), the district court only had authority to grant an extension until

Monday, December 1, 2008, but had inadvertently granted an extension to

Monday, December 15, 2008.

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      Plaintiff’s notice of appeal was received by this court on December 16,

2008, but the postmark on the “legal mail” envelope from the prison is December

11, 2008. Thus, plaintiff’s notice was filed within the time allowed by the district

court’s order granting him an extension of time to file. See Price v. Philpot,

420 F.3d 1158, 1165 (10th Cir. 2005) (holding that “an inmate who places a

federal civil rights complaint in the prison’s internal mail system will be treated

as having ‘filed’ that complaint on the date it is given to prison authorities for

mailing to the court”).

      Despite all of this confusion, the fact remains that plaintiff’s notice of

appeal was untimely. The filing of a timely notice of appeal in a civil case is

jurisdictional. Bowles v. Russell, 551 U.S. 205, 214 (2007). Plaintiff argues that

his lateness should be excused because he filed his notice in reliance on the order

from the district court. That rationalization was rejected in Bowles, and we reject

it here. See id. at 213-14 (refusing to carve out an equitable exception to the

jurisdictional requirement that a litigant file a timely notice of appeal, even where

the litigant has relied to his detriment on an order from a district court mistakenly

giving him too much time to file his notice).

      The fact that the district court’s error will not excuse the late notice of

appeal, however, will not doom plaintiff’s cause. Because plaintiff filed a timely

Rule 4(a)(5) motion, we will construe that motion as the functional equivalent of

a timely notice of appeal that became effective when the district court entered the

                                          -3-
November 12, 2008 order granting the motion. See Smith v. Barry, 502 U.S. 244,

248-49 (1992) (noting that “[i]f a document filed within the time specified by

Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal”).

        Turning to the merits, we agree with the district court that plaintiff has

failed to state a claim for relief. In order to state a claim, plaintiff must allege

“relevant actual injury” resulting from defendants’ active interference with his

attempts to prepare and file legal documents. See Lewis v. Casey, 518 U.S. 343,

350-51 (1996). Plaintiff has not alleged such active interference. To the

contrary, we note that plaintiff’s complaint lists several cases which, while

perhaps not resulting in the outcomes plaintiff desired, clearly establish that

plaintiff has been able to prepare and file his legal claims. The law requires no

more.

        The judgment of the district court is AFFIRMED.


                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




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