### 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Beth Morris Deputy Clerk* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. 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 Colo rado) 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 t herefore ordered submitted without oral argument. Ronald Lee Amidei (Amidei), appearing pro se and having been1 Amidei filed his notice of appeal on April 24, 1996 ;

two days before the effective date of the Prison Li tigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), which significantly amends 28 U.S.C. § 1915, the informa pauperis statute. Therefore, the new informa pauperis requirements do not apply. See White v. Gregory , 87 F.3d 429 (10th Cir. 1996). - 2 - granted leave to proceed informapauperis , 1appeals the district court’s Order of March 22, 1996, denying his March 6, 1996, Motion to Vacate the district court’s January 31, 1996, Or der dismissing his civil rights complaint for failure to prosecute
. Amidei is currently an inmate incarcerated in the c ustody of the Colorado Department of Corrections. On July 8, 1993, he filed a civil rights complaint pursuant to 42 U.S.C. § 19 83, which was amended on August 9, 1993. On June 23, 1994, the M agistrate Judge recommended that Amidei’s claims regarding his admi nistrative segregation placement, his access to the Sexual Off ender Treatment Program and educational opportunities, and interfer ence with his grievance filing be dismissed as frivolous. In add ition, the Magistrate Judge recommended that Amidei be grantedleave to file an amended complaint, which complies with Fed. R. C iv. P. 8, regarding his claims of retaliation and interferenc e with his legal mail and telephone calls. On August 25, 1995, the district court adopted the Magistrate Judge’s recommendations and ordered that Amidei fil e a second amended complaint on or before September 25, 1995. Upon motion, Amidei was subsequently granted until October 25, 1 995, to file his- 3 -

second amended complaint. On December 6, 1995, the Magistrate Judge recommend ed that Amidei’s complaint be dismissed for failure to pros ecute since he had not filed a second amended complaint nor had he sought any further extensions of time. On January 31, 1996, t he district court found that Amidei had failed to object to the Magistrate Judge’s December 6, 1995, recommendation and ordere d that Amidei’s civil rights complaint be dismissed for failure to prosecute. On March 6, 1996, Amidei filed a motion to vacate t he district court’s January 31, 1996, order based on excusable neglect pursuant to Fed. R. Civ. P. 60(b). On March 22, 1996, the d istrict 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 distr ict court decision only upon the timely filing of a notice ofappeal. 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 Ap pellate Procedure 4(a)(1) requires that a notice of appeal be filed with the clerk of the district court within 30 days afte r the date of entry of the judgment or order appealed from. The 30 day time period is mandatory and jurisdictional. Unless thi s requirement is- 4 -

met, we have no jurisdiction to review a district c ourt’s order on the merits. Because Amidei filed his notice of appeal more than30 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, o rder. We review a district court’s ruling on a Rule 60(b) motion un der 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 aff irm substantially for the reasons set forth in the dist rict court’s Order of March 22, 1996.
AFFIRMED. Entered for the Court:

James E. Barrett, Senior United States Circuit Judge