                                                                 [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                      No. 10-12280                 MAY 27, 2011
                                                                    JOHN LEY
                                  Non-Argument Calendar               CLERK
                                ________________________

                         D.C. Docket No. 5:08-cv-00004-WTM-JEG

ELMON MCCARROLL ELMORE, JR.,

llllllllllllllllllll                                               lPlaintiff-Appellant,

                                       versus

ASSISTANT WARDEN PEGGY ANN COOPER,
Coffee Correctional Facility, individually and in
her official capacity,
CORRECTIONS CORPORATION OF AMERICA,
a Tennessee Corporation,

llllllllllllllllllll                                            lDefendants-Appellees.

                               ________________________

                         Appeal from the United States District Court
                            for the Southern District of Georgia
                               ________________________

                                       (May 27, 2011)

Before CARNES, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:
      Elmon Elmore, Jr. appeals the denial of his motion to reopen his time to

appeal under Federal Rule of Appellate Procedure 4(a)(6).

                                         I.

      Elmore, a state prisoner, filed a complaint in federal court in early 2008

against prison officials under 42 U.S.C. § 1983, claiming that he had not been

provided with sufficient free postage from the prison on at least two occasions.

The district court entered an order granting summary judgment against Elmore on

September 23, 2009. That same day the court entered final judgment dismissing

Elmore’s case. A few days later Elmore filed a timely motion to alter or amend the

judgment. On November 6, 2009, the district court entered an order denying

Elmore’s motion to alter or amend the judgment, but apparently did not send

Elmore notice of that order.

      In January 2010 Elmore requested an update on the status of his motion to

alter or amend. On January 13, 2010, the district court responded and informed

Elmore that his motion had been denied more than two months earlier in the

November 6 order. Elmore filed a motion for leave to file an out of time notice of

appeal under Rule 4(a)(6) dated January 13, 2010, requesting that the district court

reopen his time to appeal due to his lack of notice of the November 6 order.




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       Along with that motion Elmore filed a proposed notice of appeal, which

indicated that Elmore desired to appeal from the final judgment and, construing

the pro se notice liberally, the order denying his motion to alter or amend that

judgment.1 The district court denied his motion, holding that it could “find no

interpretation of [Rule] 4(a)(6) that would allow a district court to reopen the time

to file a notice of appeal based on a failure to receive notice that a [motion to alter

or amend the judgment] was denied.” Elmore moved the court to reconsider,

which the district court also denied. Elmore then filed this appeal, essentially

contending that the district court erred in its interpretation of Rule 4(a)(6).

                                                II.

       Although we review a district court’s denial of a motion to reopen the time

to appeal under Rule 4(a)(6) only for an abuse of discretion, see McDaniel v.

Moore, 292 F.3d 1304, 1305 (11th Cir. 2002), we review de novo a “district




       1
          We must construe Elmore’s pro se proposed notice of appeal liberally. See Bellizia v.
Fla. Dep’t of Corr., 614 F.3d 1326, 1329 (11th Cir. 2010) (“We construe pro se filings . . .
liberally.”); KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006) (“In
this circuit, it is well settled that an appeal is not lost if a mistake is made in designating the
judgment appealed from where it is clear that the overriding intent was effectively to appeal.”).
Elmore’s proposed notice explicitly referenced the order denying his motion to alter or amend the
final judgment in addition to referencing the final judgment itself, and thus evinced an intent to
appeal from both the final judgment and the order denying Elmore’s motion to alter or amend.


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court’s interpretation of federal procedural rules,” Vencor Hosps., Inc. v. Standard

Life & Accident Ins. Co., 279 F.3d 1306, 1308 (11th Cir. 2002).

       If a party fails to file a notice of appeal within the 30-day period required by

Rule 4(a)(1), Rule 4(a)(6) provides that:

       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:

       (A) the court finds that the moving party did not receive notice . . . 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 14 days after the moving party receives notice . . . of
       the entry, whichever is earlier; and

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

Fed. R App. P. 4(a)(6).

       The district court denied Elmore’s motions to reopen his time to appeal

without reaching the merits of his motion because it interpreted Rule 4(a)(6) not to

allow a court to reopen an order denying a motion to alter or amend the judgment.

That interpretation was incorrect. The language of Rule 4(a)(6) does not restrict

its application to the entry of a final judgment. Fed R. App. P. 4(a)(6) (“The

district court may reopen the time to file an appeal . . . but only if . . . the court

finds that the moving party did not receive notice . . . of the entry of the judgment

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or order sought to be appealed within 21 days after entry [and] the motion is filed

within 180 days after the judgment or order is entered . . . .” (emphasis added)).

Because Elmore alleged that he did not receive the order denying his motion to

alter or amend within 21 days of its entry and the motion to reopen was filed

within 180 days after that order was entered, the district court should have

considered the merits of his motion to reopen his time to appeal under Rule

4(a)(6).

      Accordingly, we vacate and remand to allow the district court to consider

the merits of Elmore’s motion to reopen his time to appeal. We express no

opinion on whether Elmore has satisfied the requirements of Rule 4(a)(6) that

must be met in order to give the district court discretion to reopen the time to

appeal from the order denying his motion to alter or amend that judgment.

Additionally, we express no opinion on whether any failure to receive notice of an

order denying a motion to alter or amend the judgment gives the district court

discretion under Rule 4(a)(6) to allow Elmore to reopen the time to appeal from

the final judgment.

      VACATED AND REMANDED.




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