UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DEAN CARBAJAL, Plaintiff - Appellant,

v. STEPHAN M. SWAN, Physician 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., Supervis ing Physician, in his individual and official capacity; THOMAS, Lieutenant, Lieutenant for the Denver Police Department, in his individual and offici al 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. No. 15-1349 (D.C. No. 1:12-CV -02257-PAB-KLM) (D. Colo.)

________________ _________________ ORDER FILED United States Court of Appeals Tenth Circuit 

### November 3, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ 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 reheari ng 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 accord ance with Rule 35(b) of th e Federal Rules of Appellate Procedure. No judge in regular active serv ice called for a poll, so the suggestion for rehearing en banc is denied. The panel has sua sponte modified the Or der issued on September 26, 2016; the modified Order is attached. The Order date d September 26, 2016 is hereby withdrawn, and the Clerk is directed to file the attached modified order nunc pro tunc to the filing date of the original or der, September 26, 2016.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkUNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DEAN CARBAJAL, Plaintiff - Appellant,

v. STEPHAN M. SWAN, Physician 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., Supervis ing Physician, in his individual and official capacity; THOMAS, Lieutenant, Lieutenant for the Denver Police Department, in his individual and offici al 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. No. 15-1349 (D.C. No. 1:12-CV -02257-PAB-KLM) (D. Colo.)

________________ _________________ ORDER FILED United States Court of Appeals Tenth Circuit 

### September 26, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ and PHILLIPS , Circuit Judges.

________________ _________________ This court ordered Mr. Carbajal to show cause why his appe al should not be dismissed because his notice of appeal was untim ely 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 rou ghed up by members of the Denver Police Department during the arrest and endured fo rced 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 constituti onal rights by law enforcement officers and hospital personnel. Eventually, nearly all of M r. Carbajal’s claims were di smissed with the exception of excessive force claims against three law en forcement officers. M r. Carbajal went to trial on these claims in August 2015. On August 18, 2015, the jury returned unanimous verdicts in favor of the defendants. Judgmen t 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 appe al was not due until Monday, September 21, 2015. See Fed. R. App. P. 26(a)(1)(C).3 The AVCF has a legal mail system. N onetheless, 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 ma iling to the district court and defendants’ counsel. The notice was docketed as file d on September 24, 2 015—three days beyond the September 21, 2015 deadline. The question is whether Mr. Ca rbajal’s notice of appeal should be de termined to have been filed on September 18, 2015, unde r 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 no tice 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 la st day for filing. If an institution has a system designed for legal mail, the inma te must use that system to receive the benefit of this rule. Timely f iling may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarize d 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 in mate can establish the date on which he . . . gave the papers to be filed with the court to a pris on official in one of two ways.” Price v. Philpot , 420 F.3d 1158, 1165 (10th Ci r. 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—o r 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. § 1 746 or notarized statement setting forth the notice’s date of4 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 C ourt 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 Septembe r 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 hi m go to the mailroom. At the same time, Mr. Carbajal says that he did not receive th e 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 we ekends. But defendants produced evidence that other prisoners used the legal mail system on Sept ember 18, and there is no evidence that the facility was on lockdown at any time duri ng the day. Moreover, we agree with defendants that a prison is not required to ha ve 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. Carbajal5 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 sy stem 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 cons equence 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.