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 pris oner proceeding pro se, appeals the district court’s order di smissing 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, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 appeals the court’s order denying his mo tion for reconsideration. We dismiss Mr. Blackburn’s appeal as it relates to the motion for r econsideration for lack of appellate jurisdiction. We affirm the dismissal of Mr. Blackburn’s cause of action. Mr. Blackburn filed his complaint on Nove mber 23, 2018. Three days later, the magistrate judge ordered Mr. Blackburn to cure these de ficiencies within thirty days, or his action would be dismissed with out further notice: (1) submit a motion to proceed IFP on the court-approved prisoner fo rm that also contai ns authorization to calculate and disburse filing fee paymen ts, 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 co mplaint and motion. But the motion still did not contain the required authoriza tion. 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 f iled the required authorization. The district court, however, dismissed the act ion, 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 f iled a pleading titled “Request for Reinstatement of the Action, Reconsiderati on for Failure to Cure Deficiencies for3 Excusable Neglect,” id . at 84, arguing he timely fi led the authorization under the prison mailbox rule, and also maintaining “the failure to cure th e deficiencies were beyond [his] control,” id . at 85. While Mr. Blackburn’ s motion for reconsideration was pending, he filed on Ma rch 15, 2019, a notice of appeal from the court’s February 14 order dismissing the acti on. The court denied the motion for reconsideration, which it cons trued as a motion under Fed. R. Civ. P. 59(e), on April 4, 2019. Mr. Blackburn did not file a se cond 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 pr emature notice of a ppeal filed on March 15, 2019, ripened when the district court resolved th e motion to reconsider. See Fed. R. App. P. 4(a)(4)(B)(i) (“If a part y files a notice of a ppeal 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 ef fective to appeal a judgment or order, in whole or in part, when the order disposin g 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 rec onsideration, 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 or der disposing of a ny motion listed in Rule 4(a)(4)(A), [which includes a motion under Rule 59], must file a notice of4 Inc. , 115 F.3d 749, 752 (10th Cir. 1997) (exe rcising jurisdiction over the underlying case but not over an order disposing of a Ru le 59(e) motion filed after the notice of appeal because the appellant did not amend his notice of a ppeal). 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 c ourt order.” Fed. R. Civ. P. 41(b); Olsen v. Mapes , 333 F.3d 1199, 1204 n.3 (10th Cir. 20 03) (“Although the language of Rule 41(b) requires that the defenda nt file a motion to dismi ss, the Rule has long been interpreted to permit courts to dismiss acti ons sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or c ourt’s orders.”). “An abuse of discretion occurs when a district cour t makes a clear error of judgment or exceeds the bounds of permissible choice in the circ umstances. This occu rs when a district court relies upon an errone ous 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 quot ation 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 paymen ts. 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. Ap p. P. 4(a)(4)(B)(ii).5 authorization was timely under the prison ma ilbox rule because he gave it to prison officials for mailing before the fi ling deadline. We disagree. The prison mailbox rule makes the date on which a pro se prisoner presents a notice of appeal to prison o fficials 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 contex t,” to apply to other filings. Id . at 1164. Assuming, without deciding, the rule applie s 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. Th at order made Mr. Bl ackburn’s response due on February 7, 2019. But the record es tablishes Mr. Blackbur n 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 cour t thus did not abuse its discretion in dismissing Mr. Blackburn’s action for failing to timely comp ly 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 mu st pay the filing fee in full. Entered for the Court

Joel M. Carson III Circuit Court Judge