Carney v. Oklahoma Department of Public Safety, 112817 FED10, 16-6276

Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
Attorney:Andrew D. Barr (Scott F. Llewellyn of Morrison & Foerster, L.L.P., with him on the brief), Denver, Colorado, for Plaintiff - Appellant. Michael K. Velchik, Assistant Solicitor General (Justin P. Grose, Assistant Attorney General, with him on the brief), Office of the Attorney General, Litigation ...
Judge Panel:Before KELLY, MURPHY, and MORITZ, Circuit Judges.
Opinion Judge:KELLY, CIRCUIT JUDGE.
Party Name:RAY NEAL CARNEY, Plaintiff - Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee. NATIONAL ASSOCIATION FOR RATIONAL SEXUAL OFFENSE LAWS; OK VOICES; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA, Amici Curiae.
Case Date:November 28, 2017
Docket Nº:16-6276
 
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RAY NEAL CARNEY, Plaintiff - Appellant,

v.

OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.

NATIONAL ASSOCIATION FOR RATIONAL SEXUAL OFFENSE LAWS; OK VOICES; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA, Amici Curiae.

No. 16-6276

United States Court of Appeals, Tenth Circuit

November 28, 2017

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:16-CV-00484-R)

          Andrew D. Barr (Scott F. Llewellyn of Morrison & Foerster, L.L.P., with him on the brief), Denver, Colorado, for Plaintiff - Appellant.

          Michael K. Velchik, Assistant Solicitor General (Justin P. Grose, Assistant Attorney General, with him on the brief), Office of the Attorney General, Litigation Division, Oklahoma City, Oklahoma, for Defendant - Appellee.

          Brady R. Henderson, ACLU of Oklahoma Foundation, Oklahoma City, Oklahoma, for Amicus Curiae American Civil Liberties Union of Oklahoma.

          John J. Korzen, Director, Wake Forest University School of Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina, for Amici Curiae NARSOL & OK Voices.

          Before KELLY, MURPHY, and MORITZ, Circuit Judges.

          KELLY, CIRCUIT JUDGE.

         Plaintiff-Appellant Ray Carney appeals from the district court's dismissal of his claims under the Eighth and Fourteenth Amendments. Carney v. Okla. Dep't of Pub. Safety, No. 5:16-CV-00484-R, 2016 WL 4250473 (W.D. Okla. Aug. 10, 2016). He also raises an additional First Amendment claim not considered by the district court. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm the district court's dismissal on the Eighth and Fourteenth Amendment claims; the First Amendment claim has been forfeited.

         Background

         Ray Carney, a state inmate appearing pro se, was convicted of sexually abusing a child in 2010. Upon his release in January 2018, 1 Mr. Carney will be required to register as an aggravated sex offender. Under Oklahoma law, this means he will have to acquire a driver's license that indicates he is a sex offender ("license requirement"). Okla. Stat. tit. 47, § 6-111(E)(1) (2017). Failing to obtain such a license results in cancellation, and continued use of a cancelled license is a misdemeanor. Id. § 6-111(E)(4).

         On August 10, 2016, the district court dismissed Mr. Carney's claims under the Eighth and Fourteenth Amendments. Mr. Carney now appeals from that order and makes an additional claim that the license requirement is unconstitutional under the First Amendment. Mr. Carney's notice of appeal was filed on September 15, 2016, six days after the 30-day deadline had lapsed.

         Discussion

         A. The Timeliness of the Appeal

         The district court granted the government's motion to dismiss on August 10, 2016. Mr. Carney's notice of appeal was due 30 days thereafter on September 9. Fed. R. App. P. 4(a)(1)(A). Although the notice of appeal is dated September 9, it was not filed until September 15. On September 16, the clerk of court issued an order to show cause regarding the untimeliness of Mr. Carney's notice of appeal. It noted that the prison mailbox rule could save the untimely notice but that Mr. Carney had not yet fulfilled its requirements. Mr. Carney later declared under penalty of perjury that his notice of appeal was placed (in an envelope marked as "Legal Mail") in the prison mail drop on September 9 with prepaid postage. We exercise our discretion under Fed. R. App. P. 4(c)(1)(B) to permit the later filing of Mr. Carney's declaration and deem the appeal timely. See Fed R. App. P. 4(c)(1) advisory committee's note to 2016 amendment.

         B. First Amendment

         Mr. Carney first argues that the license requirement violates the First Amendment because it is compelled speech. Supp. Aplt. Br. at 12-21. But "First Amendment" does not appear anywhere in the proceedings below or in Mr. Carney's opening brief. The first time any mention of the First Amendment is made is in Mr. Carney's supplemental opening brief written by court-appointed counsel. Counsel argues that we should construe Mr. Carney's complaint liberally to include such a claim because he appeared pro se in the district court and sufficient factual allegations support such a claim. Aplt. Br. at 27. As we discuss below, this proves too much - Mr. Carney's arguments under the Eighth and Fourteenth Amendments were always clear and organized, making it apparent that he never meant to include a First Amendment argument...

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