                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 9, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT




    MATTHEW K. ENDRIS,

                Plaintiff-Appellant,

    v.                                                    No. 10-8052
                                                (D.C. No. 2:09-CV-00027-CAB)
    SHERIDAN COUNTY POLICE                                 (D. Wyo.)
    DEPARTMENT; J. HILL, Sheridan
    Police Officer; K. LAMB, Sheridan
    Police Officer; J. ARZY, Sheridan
    Police Officer; HAYDEN HEAPHY,
    Sheridan Circuit Court Magistrate, in
    both their individual and official
    capacities,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and TACHA, Circuit Judges.


         Matthew K. Endris, proceeding pro se here as in the district court, appeals

the district court’s order dismissing his civil rights complaint. Because


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Endris filed his notice of appeal out of time, we do not have subject-matter

jurisdiction and must dismiss the appeal.

      This court does not have jurisdiction over an untimely appeal. See United

States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). The

appellant’s pro se status does not affect this rule. See Mayfield v. U.S. Parole

Comm’n, 647 F.2d 1053, 1054-55 (10th Cir. 1981) (per curiam) (dismissing pro se

appeal filed three days late). The deadline for Mr. Endris’s notice of appeal was

June 9, 2010, thirty days after the district court’s May 10, 2010, order denying his

postjudgment motion. See Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A). 1 But the notice

was not filed until June 11, 2010.

      An inmate confined in an institution, such as Mr. Endris, may be entitled to

the benefit of the prison-mailbox rule, which provides that a notice of appeal “is

timely if it is deposited in the institution’s internal mail system on or before the

last day for filing.” Fed. R. App. P. 4(c)(1). Mr. Endris is the party seeking to

invoke jurisdiction, so he bears the burden of establishing appellate

subject-matter jurisdiction. Ceballos-Martinez, 387 F.3d at 1143. We have

required strict compliance with the mailbox rule, a procedural rule related to the

strict time limit for filing a notice of appeal, which is jurisdictional. Thus, while


1
       The time to file a notice of appeal was tolled while Mr. Endris’s
postjudgment motion was pending because the motion was filed within 28 days
after the March 31, 2010, judgment was entered. See
Fed. R. App. P. 4(a)(4)(A)(vi).

                                          -2-
strict compliance may facially appear to impose a hardship on the prisoner,

“Congress adopted . . . Rule 4(c)(1) knowing full well that it would apply almost

exclusively to pro se parties.” Id. at 1146. Consequently, “in hewing faithfully to

the specific requirements of Rule 4(c)(1), we do nothing more than recognize that

failure to comply with a jurisdictional mandate deprives this Court of jurisdiction

to consider the merits of an appeal.” Id.

      To receive the benefit of the mailbox rule, an inmate confined in an

institution must use the institution’s “system designed for legal mail” if there is

such a system. Fed. R. App. P 4(c)(1). In his certificate of service attached to

the notice of appeal, Mr. Endris stated that he mailed the notice to the addresses

indicated via first-class mail. The certificate failed to state either that he used the

institution’s legal-mail system or that there was no legal-mail system at the

institution at which he was confined when he mailed his notice of appeal. See

Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005) (holding where an

institutional legal-mail system is available, “an inmate must establish timely

filing under the mailbox rule by . . . alleging and proving that he or she made

timely use of the prison’s legal mail system”). Therefore, the mailbox rule was

not properly invoked, Mr. Endris’s notice of appeal was untimely, and this court

lacks jurisdiction over the appeal.

      That said, it is possible that Mr. Endris could clarify that he complied with

Rule 4(c)(1) were we to issue an order to show cause to give him the opportunity.

                                            -3-
See Ceballos-Martinez, 387 F.3d at 1144 n. 4 (noting attestation complying with

Rule 4(c)(1) must be filed before the case is resolved). However, we determine

that allowing him to clarify his certificate of service would be an unwarranted

burden both on Mr. Endris and the system, because looking at the issues raised on

appeal, we find no merit to them in any event.

      Mr. Endris contends that the district court erred in refusing to allow him to

amend his complaint. But his proposed amended complaint did not address

defendants’ affirmative defense that he had failed to exhaust administrative

remedies, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C.

§ 1997e(a). See Jones v. Bock, 549 U.S. 199, 216 (2007) (holding “failure to

exhaust is an affirmative defense under the PLRA”). Furthermore, the proposed

federal claims for vindictive motive, unlawful warrant, municipal liability, and

supervisory liability were insufficient because the proposed amended complaint

did not allege any facts to support these claims, instead offering only conclusory

allegations that Mr. Endris believed he could prove one or more possible theories

of liability. See Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1281 (10th Cir.

2007) (holding where proposed amended complaint “makes out no valid new

complaint” there is no abuse of discretion in denying leave to amend); Sheldon v.

Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (stating conclusory

allegations insufficient to demonstrate entitlement to amend complaint). Finally,




                                         -4-
any state-law claims for assault and battery or mental and emotional injury 2 were

inappropriate subjects for the exercise of pendent jurisdiction where all federal

claims had been dismissed. See Brooks v. Gaenzle, 614 F.3d 1213, 1229

(10th Cir.) (stating federal district court’s exercise of pendent jurisdiction over

state-law claims is discretionary and exercise of jurisdiction should be declined if

all federal claims are dismissed before trial), cert. denied, 79 U.S.L.W. 3310,

3429, 3434 (U.S. Jan. 24, 2011) (No. 10-621).

                                     Conclusion

      Mr. Endris’s pending motion for appointment of counsel is DENIED. The

district court granted Mr. Endris leave to proceed on appeal in forma pauperis

under the PLRA; he is reminded that he remains obligated to pay the full amount

of the filing fee. The appeal is DISMISSED for lack of jurisdiction.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




2
      We express no opinion on whether Mr. Endris’s allegations stated a claim
under state law or whether he served a timely Notice of Claim, as required by
Wyo. Stat. Ann. § 1-39-113(a).

                                         -5-
