* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 11 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOSEPH ANGELO DICESARE,

Plaintiff-Appellant,

v. J.D. BALDRIDGE; CARL SLOAN; CHARLIE DAVIS; BOB HUGHES,

Defendants-Appellees. No. 97-5191 (D.C. No. 93-CV-507) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Joseph Angelo DiCesare, proceeding pro se , appeals the district court’s order granting defendants’ motion for summary judgment on his claims brought under 42 U.S.C. § 1983 for malicious prosec ution and unlawful arrest in violation of the Fourth Amendment. Plaintiff was a rrested and charged with the Oklahoma crime of cultivation of marijuana. He spe nt three days in jail. Thereafter, the charges were dismissed without prej udice. He then filed the underlying lawsuit against the police officers invo lved in bringing the criminal charges against him. We affirm the district court’ s judgment. As a threshold matter, we must determine whether th e notice of appeal was timely because the timely filing of a notice of app eal is mandatory and jurisdictional. See Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 203 (1988). Judgment was entered March 18, 1997. On J une 27, 1997, Plaintiff filed a motion for appeal out of time, pursuant to Fed. R . App. P. 4(a)(6), on the ground that he had not received notice of the judgm ent. The motion was granted, but plaintiff did not receive a copy of the order. Thereafter, on September 30, 1997, plaintiff filed another motion for appeal outof time, together with a notice of appeal. The request for additional time was gra nted on October 6, 1997. Plaintiff’s Rule 4(a)(6) motion to reopen the time for appeal was filed within 180 days of entry of the judgment, as requir ed by the rule. Even though plaintiff’s notice of appeal was filed before the O ctober 6, 1997 order granting his-3-

request for additional time, he was not required to file another notice of appeal after the order was entered. See Hinton v. City of Elwood , 997 F.2d 774, 779 (10th Cir. 1993). We find no abuse of discretion i n the district court’s decisions to grant plaintiff additional time to file a notice of appeal. See Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994). For these rea sons, we have jurisdiction over this appeal. On the merits, plaintiff claims the district court improperly granted summary judgment in favor of defendants on his mali cious prosecution and wrongful arrest claims and failed to consider as on e claim his malicious prosecution and Fourth Amendment claims, contrary t o Albright v. Oliver , 510 U.S. 266 (1994). We review de novo the district co urt’s grant of summary judgment, viewing the record in the light most favo rable to the party opposing summary judgment. See McKnight v. Kimberly Clark Corp. , No. 97-5179, 1998 WL 384608, at *1 (10th Cir. July 10, 1998). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).-4-

One of the elements of a cause of action for malici ous prosecution is a successful termination of the underlying action in favor of the plaintiff. See Parker v. City of Midwest City , 850 P.2d 1065, 1067 (Okla. 1993); see also Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996) (“[O]ur circu it takes the common law elements of a malicious prosecution as t he ‘starting point’ for the analysis of a § 1983 malicious prosecution claim, b ut always reaches the ultimate question, which it must, of whether the plaintiff h as proven a constitutional violation.”). The criminal charges filed against p laintiff for cultivation of marijuana were dismissed without prejudice. He arg ues that the case terminated in his favor once the statute of limitations expire d, preventing the charges from being refiled. The Oklahoma Supreme Court has explained that a dis missal without prejudice does not qualify as a favorable terminati on because it does not “reach the substantive rights of the cause of action and t hereby vindicate appellant as to the underlying action.” Glasgow v. Fox , 757 P.2d 836, 839 (Okla. 1988). Similarly, expiration of the statute of limitations does not depend on or reflect the merits of the underlying action. Under Oklahoma law, “[d]ismissal without prejudice is not a termination favorable to the mal icious-prosecution plaintiff.” Greenberg v. Wolfberg , 890 P.2d 895, 904 (Okla. 1994) (emphasis omitted)

.-5-

Because plaintiff has not established a prima facie case of malicious prosecution, the district court properly granted summary judgment on that claim. Plaintiff has clarified his claim based on unlawful warrants to refer to the warrant for his arrest, which he alleges was obtain ed without probable cause in violation of his Fourth Amendment rights. The warr ant was obtained and executed in August and September of 1988; plaintiff filed this action in June 1993, more than two years after the allegedly illeg al actions occurred. Therefore, this claim is barred by the two-year statute of lim itations. See Meade v. Grubbs , 841 F.2d 1512, 1522-24 (10th Cir. 1988) (adopting two-year statute of limitations for § 1983 claims in Oklahoma); Johnson v. Johnson County Comm’n Bd. , 925 F.2d 1299, 1301 (10th Cir. 1991) (“Claims arising o ut of police actions toward a criminal suspect, such as arrest, interrogation, orsearch and seizure, are presumed to have accrued when the actions actually occur.”). Finally, we reject plaintiff’s claim that the distr ict court’s ruling was contrary to Albright v. Oliver , 510 U.S. 266 (Fourth Amendment, rather than substantive due process, is the source of the const itutional protection in a claim for malicious prosecution). Plaintiff’s motion to supplement the record on appeal is DENIED. The record is sufficient for our reviewof plaintiff’s claims of error. All other pending motions are DENIED.-6-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Bobby R. Baldock Circuit Judge