UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

September 25, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED ORDER & JUDGMENT

RE: 96-1184 Amidei v. Cooper

 September 23, 1996 by The Honorable James E. Barrett

Please be advised of the following correction to the

captioned decision:

Due to technical problems, the last line of page one

reappears at the top of page two. 

Please make the appropriate corrections.

Very truly yours,

Patrick Fisher, Clerk

Beth Morris

Deputy Clerk
*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/23/96

FOR THE TENTH CIRCUIT

______

RONALD LEE AMIDEI, )

)

Plaintiff-Appellant, )

)

v. ) No. 96-1184

) (D.C. No. 93-Z-1436)

THOMAS I. COOPER, FCF, Warden, ) (Dist. of Colorado)

CAPTAIN GORDON ROETKER, FCF )

Housing Supervisor, LT. RICHARD )

DEGROOT, FCF Case Manager, DOREEN )

TRUMAN, DOC Communications Officer,)

all in their individual and )

official capacities, )

)

Defendants-Appellees. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Ronald Lee Amidei (Amidei), appearing pro se and having been
1 Amidei filed his notice of appeal on April 24, 1996;

two days before the effective date of the Prison Litigation

Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,

1996), which significantly amends 28 U.S.C. § 1915, the in forma

pauperis statute. Therefore, the new in forma pauperis

requirements do not apply. See White v. Gregory, 87 F.3d 429

(10th Cir. 1996).

- 2 -

granted leave to proceed in forma pauperis,

1 appeals the district

court’s Order of March 22, 1996, denying his March 6, 1996, Motion

to Vacate the district court’s January 31, 1996, Order dismissing

his civil rights complaint for failure to prosecute.

Amidei is currently an inmate incarcerated in the custody of

the Colorado Department of Corrections. On July 8, 1993, he filed

a civil rights complaint pursuant to 42 U.S.C. § 1983, which was

amended on August 9, 1993. On June 23, 1994, the Magistrate Judge

recommended that Amidei’s claims regarding his administrative

segregation placement, his access to the Sexual Offender Treatment

Program and educational opportunities, and interference with his

grievance filing be dismissed as frivolous. In addition, the

Magistrate Judge recommended that Amidei be granted leave to file

an amended complaint, which complies with Fed. R. Civ. P. 8,

regarding his claims of retaliation and interference with his legal

mail and telephone calls.

On August 25, 1995, the district court adopted the Magistrate

Judge’s recommendations and ordered that Amidei file a second

amended complaint on or before September 25, 1995. Upon motion,

Amidei was subsequently granted until October 25, 1995, to file his
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second amended complaint.

On December 6, 1995, the Magistrate Judge recommended that

Amidei’s complaint be dismissed for failure to prosecute since he

had not filed a second amended complaint nor had he sought any

further extensions of time. On January 31, 1996, the district

court found that Amidei had failed to object to the Magistrate

Judge’s December 6, 1995, recommendation and ordered that Amidei’s

civil rights complaint be dismissed for failure to prosecute.

On March 6, 1996, Amidei filed a motion to vacate the district

court’s January 31, 1996, order based on excusable neglect pursuant

to Fed. R. Civ. P. 60(b). On March 22, 1996, the district court

denied Amidei’s motion. On April 24, 1996, Amidei filed his notice

of appeal.

On appeal, Amidei contends that the district court abused it

discretion by dismissing his complaint for failure to prosecute and

by denying his motion to vacate the dismissal.

We acquire jurisdiction over an appeal from a district court

decision only upon the timely filing of a notice of appeal. See

Smith v. Barry, 502 U.S. 244, 245 (1992); TBG, Inc. v. Bendis, 36

F.3d 916, 920 (10th Cir. 1994). Federal Rule of Appellate

Procedure 4(a)(1) requires that a notice of appeal be filed with

the clerk of the district court within 30 days after the date of

entry of the judgment or order appealed from. The 30 day time

period is mandatory and jurisdictional. Unless this requirement is
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met, we have no jurisdiction to review a district court’s order on

the merits.

Because Amidei filed his notice of appeal more than 30 days

after the district court’s January 31, 1996, Order, we are without

jurisdiction to review that order. However, Amidei’s notice of

appeal is timely with respect to the district court’s order of

March 22, 1996, which was entered on March 28, 1996, denying his

Rule 60(b) motion to vacate the January 31, 1996, order. We review

a district court’s ruling on a Rule 60(b) motion under an abuse of

discretion standard. See Dowell ex rel, Dowell v. Board of Educ.

of Okla. City Pub. Schs. Indep. Dist. No. 89, 8 F.3d 1501, 1509

(10th Cir. 1993).

After a careful review of the record, we hold that the

district court did not abuse its discretion and affirm

substantially for the reasons set forth in the district court’s

Order of March 22, 1996.

AFFIRMED.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge