UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARVIN BROWN,

Plaintiff-Appellant,

v.

BRUCE McALLISTER, Detective,

Defendant-Appellee.

No. 97-2035

(D.C. No. CIV-94-936)

(D. N.M.)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

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

Plaintiff Marvin Brown, an incarcerated prisoner appearing pro se, appeals from the district court's dismissal of his 42 U.S.C. § 1983 complaint, based on the parties' stipulated motion to dismiss. Plaintiff's consolidated § 1983 complaint asserted constitutional rights violations and pendent state law claims against numerous defendants arising out of a 1992 search of his home and a later 1992 arrest of Brown for drug possession.1 The district court dismissed many of plaintiff's claims, though plaintiff filed several amended complaints. Ultimately, the district court dismissed or granted summary judgment in favor of all of the defendants except for one claim against defendant Bruce McAllister, as to which the court concluded summary judgment was inappropriate because of disputed issues of material fact.

On November 6, 1996, plaintiff signed a "Full and Final Release of All Claims and Indemnity Agreement," releasing all claims against defendant McAllister, the City of Albuquerque and all of its agents, servants and employees arising out of any of the incidents complained of in plaintiff's consolidated complaint. 2 The next day, the parties filed a stipulated motion to dismiss the consolidated complaint and, on November 8, 1996, the district court granted the motion and dismissed the complaint with prejudice.

Plaintiff then filed a notice of appeal. Although the notice was dated November 14, 1996, it was not filed until December 16, 1996, more than thirty days after the date of the district court's order. See Fed. R. App. P. 4(a). This court ordered the parties to submit briefs addressing this jurisdictional defect.

Defendant asserts that plaintiff's notice of appeal was untimely and did not comply with the requirements of Fed. R. App. P. 3(c).3 Defendant further asserts that the appeal is moot because plaintiff released all of his claims arising out of the consolidated complaint pursuant to the November 6, 1996 settlement agreement. Plaintiff responds that he filed his notice of appeal on November 14, 1996, though he does not allege when he placed the notice in the prison mail system. See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (holding a pro se prisoner's notice of appeal timely filed if deposited in the prison mail system within the applicable time limit), see also Fed. R. App. P. 4(c) (inmate notice of appeal is timely filed if deposited in prison's mail system on or before filing deadline). More significantly, however, plaintiff does not dispute that the appeal is moot because he released all of his claims pursuant to the November 6, 1996 settlement agreement and that he stipulated to the dismissal of the complaint.

Because we find that plaintiff's claims on appeal are moot, we do not reach the issue of whether the notice of appeal was timely filed under Houston v. Lack. See Tosco Corp. v. Hodel, 804 F.2d 590, 591-92 (10th Cir. 1986) (holding that mootness is a question that "a federal court must resolve before it assumes jurisdiction" because federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971).

Plaintiff signed a complete release of all claims arising out of his consolidated complaint against defendant McAllister and the other defendants. Plaintiff signed and submitted a stipulated motion to dismiss his consolidated complaint. Record, Doc. 71 and 72. Plaintiff does not dispute that he settled all claims or that he signed a stipulation to dismiss his complaint, nor does he raise any challenge with respect to his settlement or the stipulated dismissal. Plaintiff's notice of appeal challenges only the state court's consolidation of his state court claims and asserts that a hearing was held in the state court proceeding after the action was removed to federal court. Similarly, plaintiff's opening brief makes no allegations of error with respect to the district court proceedings.

After our review of the briefs, the settlement agreement, the stipulated motion to dismiss and the district court's dismissal, we conclude that the parties' settlement agreement is a full, final and complete settlement of the dispute, and renders this appeal moot. See Tosco Corp., 804 F.2d at 592 (final settlement of dispute moots action on appeal). We further conclude plaintiff's appeal presents no arguably meritorious issue for consideration and is frivolous within the meaning of 28 U.S.C. § 1915(e)(2)(B)(i). We therefore dismiss this appeal. Because this appeal is dismissed as frivolous pursuant to § 1915(e)(2)(B)(i), this appeal counts as a "prior occasion" under 28 U.S.C. § 1915(g).

We DISMISS the appeal. All other pending motions are DENIED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel

Circuit Judge