UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MERLYON BLACKBURN, 

 Plaintiff - Appellant, 

v. 

MARK BROSTROM; AMY 

HENDRICKSON; JOSEPH 

MAEHLTEENON; TODD BLUTH; 

DAVE COUTOUR; TOMAS RICHARD 

ENSOR; HERB ATCHISON; BRIAN 

FUSILAY, 

 Defendants - Appellees. 

No. 19-1098 

(D.C. No. 1:18-CV-03015-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges. 

_________________________________ 

Merlyon Blackburn, a Colorado state prisoner proceeding pro se, appeals the 

district court’s order dismissing his amended civil rights complaint, without 

prejudice, for failing to follow the court’s order to comply with the requirements to 

proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a)(2). Mr. Blackburn also 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 14, 2020

Christopher M. Wolpert 

Clerk of Court
2 

appeals the court’s order denying his motion for reconsideration. We dismiss 

Mr. Blackburn’s appeal as it relates to the motion for reconsideration for lack of 

appellate jurisdiction. We affirm the dismissal of Mr. Blackburn’s cause of action. 

Mr. Blackburn filed his complaint on November 23, 2018. Three days later, 

the magistrate judge ordered Mr. Blackburn to cure these deficiencies within thirty 

days, or his action would be dismissed without further notice: (1) submit a motion to 

proceed IFP on the court-approved prisoner form that also contains authorization to 

calculate and disburse filing fee payments, or pay the $400.00 filing fee; and 

(2) submit an amended complaint on the court-approved prisoner complaint form, 

containing a caption listing all parties. 

Mr. Blackburn timely filed an amended complaint and motion. But the motion 

still did not contain the required authorization. The court therefore issued a second 

order stating Mr. Blackburn “will have one additional opportunity to cure [the 

deficiency],” R. at 67, giving him thirty days to comply, otherwise “the action will be 

dismissed without further notice,” id. at 68. 

On February 13, 2019, Mr. Blackburn filed the required authorization. The 

district court, however, dismissed the action, without prejudice, “for failure to 

prosecute and cure the deficiencies” on time. Id. at 75. The court also certified 

under 28 U.S.C. § 1915(a)(3) that any appeal of the order would not be taken in good 

faith and so denied IFP status for purposes of appeal. 

On March 1, 2019, Mr. Blackburn filed a pleading titled “Request for 

Reinstatement of the Action, Reconsideration for Failure to Cure Deficiencies for 
3 

Excusable Neglect,” id. at 84, arguing he timely filed the authorization under the 

prison mailbox rule, and also maintaining “the failure to cure the deficiencies were 

beyond [his] control,” id. at 85. While Mr. Blackburn’s motion for reconsideration 

was pending, he filed on March 15, 2019, a notice of appeal from the court’s 

February 14 order dismissing the action. The court denied the motion for 

reconsideration, which it construed as a motion under Fed. R. Civ. P. 59(e), on April 

4, 2019. Mr. Blackburn did not file a second notice of appeal or amend his first 

notice of appeal to include the April 4 order. 

“A timely filed notice of appeal is mandatory and jurisdictional.” Yost v. 

Stout, 607 F.3d 1239, 1242 (10th Cir. 2010) (internal quotation marks omitted). 

There is no dispute that Mr. Blackburn’s premature notice of appeal filed on March 

15, 2019, ripened when the district court resolved the motion to reconsider. See

Fed. R. App. P. 4(a)(4)(B)(i) (“If a party files a notice of appeal after the court 

announces or enters a judgment—but before it disposes of any motion listed in Rule 

4(a)(4)(A) [which includes Rule 59 motions]—the notice becomes effective to appeal 

a judgment or order, in whole or in part, when the order disposing of the last such 

remaining motion is entered.”). 

But to perfect an appeal from the district court’s April 4 decision denying 

Mr. Blackburn’s motion for reconsideration, Rule 4(a)(4)(A) required him to file a 

second notice of appeal or amend his first notice.1

 See Breeden v. ABF Freight Sys., 

 1

 “A party intending to challenge an order disposing of any motion listed in 

Rule 4(a)(4)(A), [which includes a motion under Rule 59], must file a notice of 
4 

Inc., 115 F.3d 749, 752 (10th Cir. 1997) (exercising jurisdiction over the underlying 

case but not over an order disposing of a Rule 59(e) motion filed after the notice of 

appeal because the appellant did not amend his notice of appeal). Thus, although we 

have jurisdiction to consider the court’s February 14, 2019 order dismissing the 

action, we have no jurisdiction to review the court’s April 4, 2019 order denying 

Mr. Blackburn’s motion for reconsideration. 

 A district court may dismiss an action sua sponte “[i]f the plaintiff fails to 

prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b); Olsen v.

Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Although the language of Rule 

41(b) requires that the defendant file a motion to dismiss, the Rule has long been 

interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to 

prosecute or comply with the rules of civil procedure or court’s orders.”). “An abuse 

of discretion occurs when a district court makes a clear error of judgment or exceeds 

the bounds of permissible choice in the circumstances. This occurs when a district 

court relies upon an erroneous conclusion of law or upon clearly erroneous findings 

of fact.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 

(10th Cir. 2007) (citation, brackets, and internal quotation marks omitted). 

 There was no abuse of discretion. On appeal, Mr. Blackburn argues the 

district court erred in finding he failed to timely file the required authorization to 

calculate and disburse filing fee payments. According to Mr. Blackburn, his 

 

appeal, or an amended notice of appeal—in compliance with [Fed. R. App. P.] 3(c)—

within the time prescribed by this Rule.” Fed. R. App. P. 4(a)(4)(B)(ii). 
5 

authorization was timely under the prison mailbox rule because he gave it to prison 

officials for mailing before the filing deadline. We disagree. 

 The prison mailbox rule makes the date on which a pro se prisoner presents a 

notice of appeal to prison officials for mailing the filing date for timeliness purposes. 

See Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). Although the rule 

was first applied to notices of appeal, “[w]e have . . . extended [the] mailbox rule 

beyond the notice of appeal context,” to apply to other filings. Id. at 1164. 

Assuming, without deciding, the rule applies to Mr. Blackburn’s IFP authorization, it 

was untimely under the rule. 

 On January 8, 2019, the district court entered its second order to cure, giving 

Mr. Blackburn thirty days to comply. That order made Mr. Blackburn’s response due 

on February 7, 2019. But the record establishes Mr. Blackburn did not give his 

response to prison officials until February 8, 2019, at the earliest, making it untimely 

under the prison mailbox rule. See R. at 70-73. The court thus did not abuse its 

discretion in dismissing Mr. Blackburn’s action for failing to timely comply with its 

order. 

 The judgment of the district court is affirmed. We grant Mr. Blackburn’s 

motion to supplement his opening brief. We deny his motion to proceed IFP on 

appeal and remind Mr. Blackburn he must pay the filing fee in full. 

 Entered for the Court 

 Joel M. Carson III 

 Circuit Court Judge