Kenneth Gene Wall v. Anita Denise Wall

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 16, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15656
Non-Argument Calendar
________________________
D. C. Docket No. 09-00527-CV-2-MEF-SRW
KENNETH GENE WALL,
Plaintiff-Appellant,
versus
ANITA DENISE WALL,
a.k.a. Anita Denise Griffith,
JOHN B. BUSH, in his individual
and official capacities,
SIBLEY G. REYNOLDS, in his
individual and official capacities,
CAROL "FAIN" BUSH,
PAUL HIEBEL,
in his individual and official capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 16, 2010)

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Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Kenneth Wall appeals pro se the denial of his motion to alter or amend the
judgment that dismissed his complaint that he was denied a fair divorce hearing
because of a conspiracy between his former wife, Anita Wall, Judges John Bush
and Sibley Reynolds, court reporter Carol Bush, and Family Court Referee Paul
Hiebel. 42 U.S.C. §§ 1983, 1985. Wall moved to alter or amend on the ground
that he had not received a copy of the report and recommendation of the magistrate
judge that the district court had adopted. The district court denied Wall’s motion,
and we affirm.
The district court did not abuse its discretion by denying Wall’s motion to
alter or amend. The magistrate judge directed the clerk to serve Wall a copy of the
report and recommendation, see Fed. R. Civ. P. 72(b)(1), and that “service [was]
complete upon mailing,” Fed. R. Civ. P. 5(b)(2)(C). There is a presumption that an
item mailed has been received, Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1239
(11th Cir. 2002), and Wall failed to submit sufficient evidence to rebut that
presumption. Although Wall alleged that he did not receive the report and
recommendation, he offered nothing more than his bare assertion to overcome the
presumption. See id. at 1241. The clerk mailed the report and recommendation to
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the address provided by Wall, and the report was not returned as undeliverable by
postal officials. Wall also had received documents mailed previously to that same
address. Wall also failed to explain what objections, if any, he would have filed
had he received the report earlier, nor has Wall offered any explanation on appeal.
We AFFIRM the denial of Wall’s motion to alter or amend.
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