# Anthony Ray Jenkins v. Jill Burtzloff and Linda Triggs

> Court of Appeals for the Tenth Circuit · October 31, 1995 · 69 F.3d 460

URL: https://www.frixlaw.com/law-library/cases/9488657

## Case

- **Full name:** Anthony Ray JENKINS, Plaintiff-Appellant, v. Jill BURTZLOFF and Linda Triggs, Defendant-Appellees
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** October 31, 1995
- **Citations:** 69 F.3d 460; 33 Fed. R. Serv. 3d 800; 1995 U.S. App. LEXIS 31068; 1995 WL 640413
- **Precedential status:** Published
- **Opinion:** Dissent by McKAY
- **Judges:** Ebel, McKay, Cook
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488657

## How later opinions describe it (automated extraction)

- holding that the prison mailbox rule does not apply to the start of the period for filing a notice of appeal
- holding that, where plaintiff failed to pursue Rule 4(a)(6) relief, "Rule 60(b)(1) cannot save his appeal"
- concluding that “date of entry” means date entered on docket, not date litigant receives notice of order

## Opinion text

McKAY, Circuit Judge,
dissenting:
After review of the relevant precedents, I respectfully must dissent. If I were counting noses in the Supreme Court, I might come to a different conclusion. However, the only sound way to predict future Supreme Court action is to apply standard interpretive principles to its past decisions. Following that practice, I am persuaded that the Third Circuit in United States v. Grana, 864 F.2d 312 (3d Cir.1989), correctly applied Houston v. Lack, 487 U.S. 266 , 108 S.Ct. 2379 , 101 L.Ed.2d 245 (1988), to a similar fact situation.
In the case before us, the court puts great emphasis on the fact that the operative and controlling word is “entry” while in Houston the operative and controlling word was “filed.” As the dissent in Houston so ably pointed out, the barriers to interpreting “filed” to mean anything other than receipt by the clerk were as formidable as the barrier to interpreting “entry” to mean anything other than the clerk’s act of lodging the *465 Judgment in its docket. Effectively, the majority in Houston acknowledged that in every situation except pro se prisoner cases, “filed” still means receipt by the clerk no matter the equities. The net effect is that the court relied on the uniqueness of the fact that prisoners are under control of the state itself to give “filed” a meaning in their cases that it did not, and still does not, have in any other litigant’s ease. That is the precise parallel for precisely the same reason for us to hold that “entry,” while retaining its “act of the clerk” meaning in all other cases, means “delivery of notice to the prisoner” in pro se prisoner cases.
It may be argued that the plain meaning of “entry” is somehow plainer or more emphatic than the plain meaning of “filed.” I believe a reading of Houston , especially the dissent, and the majority’s implicit conclusion that “filed” still really means “filed” in all but prisoner cases adequately answers any assertion that the plain meaning of the one word is more emphatic than the plain meaning of the other.
I would apply Houston , as set out in Gra-na and expanded on in this brief dissent, to the facts of this case. Thus I would partially remand to the trial court to determine the truth of the time allegations and retain jurisdiction until that task is completed. If the trial court verifies the allegations, I would proceed to the merits.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488657. Public record. Not legal advice.