Kirby, Jr. v. Ware, 702 F. App'x 788

Plaintiffs Elbert Kirby, Jr. and Caleb Meadows (pro se) sued government officials in W.D. Okla. after arrests and booking on state charges; defendants moved for summary judgment.
The district court granted summary judgment for the government defendants and entered judgment on March 31, 2016.
Plaintiffs filed a motion for reconsideration on May 2, 2016; the district court denied it on May 12, 2016. Plaintiffs filed a notice of appeal on May 26, 2016.
The district-court clerk later awarded $52.11 in costs (printing/copying) to some defendants; plaintiffs challenged the costs and the district court denied relief on August 4, 2016. Plaintiffs filed a separate notice of appeal on August 24, 2016 as to costs.
The Tenth Circuit dismissed the appeal of the summary-judgment ruling as untimely, affirmed the denial of reconsideration (because plaintiffs did not challenge it on appeal), and affirmed the costs award (finding the record supported the award despite a mistaken statement in the district court’s order).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal from summary judgment	Mail date of May 2 motion should toll appeal period; mailing date counts as filing	Motion was filed after 28-day tolling window; mailing rule applies only to prisoners and plaintiffs were not shown to be prisoners	Appeal of summary judgment dismissed as untimely; tolling did not apply
Validity of motion for reconsideration to toll appeal period	Motion filed May 2 tolled time to appeal underlying judgment	Motion was filed beyond 28 days after judgment and thus did not toll	Motion filed too late to toll; underlying appeal time not extended
Appeal of denial of reconsideration (Rule 60/59)	Plaintiffs challenged denial in notice of appeal	Defendants argued plaintiffs did not brief or press that issue on appeal	Notice of appeal timely as to denial, but plaintiffs abandoned the issue by failing to brief it; denial affirmed
Award of $52.11 in costs	Costs included copying for depositions not taken; award improper	Record shows the $52.11 reflected other permissible copying/printing costs; district court wording was mistaken but award supported	Costs award affirmed; district court’s misstatement did not change the propriety of the award

Lebahn v. Owens, 813 F.3d 1300 (10th Cir. 2016) (notice-of-appeal timing and tolling by postjudgment motions)
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (liberal construction of pro se filings)
Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199 (10th Cir. 1997) (issues not raised in opening brief are abandoned)