*

 The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. The court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 7, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALEX HERRERA,

Plaintiff-Appellant,

v.

JOE ORTIZ, Director, Colorado

Department of Corrections; KATHY

HOLST, Head of Medical, Colorado

Department of Corrections; TED

FERGUSON, President, Corrections

Corporation of America (CCA); Head

of Medical, CCA; HOYT BRILL,

Warden, Kit Carson Correctional

Facility (KCCF) (a CCA facility);

Head of Medical, KCCF; DICK

SMELSER, Warden, Crowley County

Correctional Facility (CCCF) (a CCA

facility); JUDY BRIZENDINE, Head

of Medical, CCCF,

Defendants-Appellees.

No. 07-1253

(D.C. No. 06-CV-00334-ZLW)

(D. Colo.)

ORDER AND JUDGMENT*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
1

 Because the district court dismissed Herrera’s federal constitutional

claims, it declined to exercise supplemental jurisdiction over his state law claims.

- 2 -

Alex Herrera, a Colorado state prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint and its refusal to

grant him an “Extension of Time” to file a new complaint. Because Herrera filed

an untimely notice of appeal to challenge the district court’s dismissal of his

complaint and its denial of his motion to reconsider, we lack jurisdiction over his

attempt to appeal. To the extent that he timely appeals the district court’s denial

of his motion for an extension of time, we AFFIRM. 

On April 21, 2006, Herrera filed an amended complaint in the District of

Colorado raising claims based on state and federal law stemming from an incident

in which he slipped and fell while working in the prison kitchen. He alleges that

prison officials were negligent in failing to keep the kitchen floor free of grease,

and that they failed to provide adequate followup medical care. The district court

construed Herrera’s complaint as alleging civil rights violations under 42 U.S.C.

§ 1983 and pendant state law negligence claims. On May 2, 2006, it dismissed

the complaint without prejudice, finding that Herrera had failed to exhaust his

administrative remedies with regard to at least one of his claims.1

 The district

court failed to enter a separate judgment noting that dismissal on the docket. 
- 3 -

Herrera then made a timely Federal Rule of Civil Procedure 59(e) motion to alter

or amend judgment, which the district court denied on May 25, 2006.

Nearly a year later, Herrera filed a “Motion to Request Extension of Time

on the Filing of My 1983/1985 Prisoner Complaint” with the district court. In a

one-sentence order filed on May 15, 2007, the district court denied the motion

because it had already dismissed Herrera’s complaint. Herrera then filed a notice

of appeal on June 13, 2007, ostensibly appealing both the dismissal of his

complaint as well as the denial of his request for an extension.

Before we can reach the substance of Herrera’s claims, we must first

ascertain whether we have jurisdiction over his appeal of the district court’s

dismissal of his complaint. Although we construe Herrera’s pro se filings

liberally, he nevertheless must abide by the same rules of procedure as other

litigants, especially when the rules are jurisdictional. See Bowles v. Russell, 127

S. Ct. 2360, 2362 (2007) (holding that appellate courts lack jurisdiction to hear

civil appeals commenced after the statutory period for filing a notice of appeal);

Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007) (pro se

litigants must follow rules of procedure).

Under these rules, a notice of appeal in a civil case must be “filed with the

district clerk within 30 days after the judgment or order appealed from is

entered.” Fed. R. App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). When the

district court fails to enter its judgment in a separate document, judgment is
2

 Herrera’s appeal is also untimely to the extent that it challenges the

district court’s order disposing of his Rule 59(e) motion. A separate document is

not required for orders disposing of Rule 59(e) motions, and the time to appeal

such rulings normally begins running when the court’s judgment is entered in the

civil docket. See Fed. R. Civ. P. 58(a)(4), (c)(1); Fed. R. App. P. 4(a)(4)(A)(iv),

(a)(7)(A)(i). This case is somewhat unusual in that Herrera filed, and the district

court denied, his Rule 59(e) motion well before judgment was entered on

Herrera’s underlying complaint by operation of Rule 58(c)(2)(B). We need not

decide, however, what effect this had on Herrera’s time to appeal, as his June

2007 notice of appeal came months too late under any calculation.

- 4 -

normally not deemed entered until 150 days after the entry of the decision in the

civil docket. See Fed. R. Civ. P. 58(a), (c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). 

Because the district court did not dismiss Herrera’s complaint in a separate

document, its judgment was final 150 days after the order dismissing Herrera’s

complaint, or September 29, 2006. See Clough v. Rush, 959 F.2d 182, 185 (10th

Cir. 1992) (holding that an order did not qualify as a separate document under

Rule 58 because it contained detailed legal reasoning). Herrera then had 30 days

to file a notice of appeal; this period ended on October 29, 2006. Because

Herrera did not file his notice of appeal until June 2007, his appeal of the district

court’s substantive rulings is untimely.2

In contrast to his attempt to appeal the dismissal of his complaint, Herrera

filed a timely notice of appeal as to the district court’s denial of his “Motion to

Request Extension of Time on the Filing of My 1983/1985 Prisoner Complaint.” 

To the extent that we have jurisdiction over this aspect of his appeal, we note

only that there is no case pending in the district court from which he would be
- 5 -

able to request an extension of time. As previously explained, the judgment

dismissing his complaint had been entered long before he brought this motion and

there was no pending deadline that the district court could have extended. We

thus AFFIRM the district court’s denial of his motion.

We GRANT Herrera’s motion to proceed in forma pauperis, but remind

him of his obligation to continue making partial payments of his appellate filing

fee until the entire balance is paid in full.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge