*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ DELMAR WAITS, Plaintiff-Appellant,
v. WILLIAM (BILL) HARTLESS; SUSAN ALLEN; C. MOSCHETTI; D. CHUMBLEY; J. GAUNT; D. COX; JANE KENNEDY; SHELLY ROBINSON, Defendants-Appellees. No. 98-1089 (D. Colo.) (D.Ct. No. 95-K-1589)

____________________________ ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Mr. Waits was then represented by counsel.
-2- Mr. Waits is a state inmate and now appears pro seappealing the dismissal of his 42 U.S.C. § 1983 civil rights action.
The Record on Appeal Mr. Waits is confined in a Colorado State penitenti ary. He commenced this action by filing his complaint June 19, 1995, claim ing various defendants (employees of the State of Colorado) over a period of fourteen months exposed him to second-hand smoke by smoking in both his working and living areas. He further alleged the smoking occurred in violation o f an executive order issued by the Governor of Colorado. He alleged “[t]he medica lly documented sinus problems of the Plaintiff were further aggravated s o that he was forced to get the sinus medication.”
Mr. Waits’ claim survived summary judgment and wentto trial. At the commencement of trial, the parties submitted exhibi ts and made opening statements. 1 The district court then ruled Defendants were ent itled to qualified immunity and dismissed the case. The transcript re veals the following statement by the district court:2Mr. Waits filed with this court a Motion for Appointment of Counsel requesting

a “Federal Public Defender” be appointed to represent him. We have previously held the -3- Court rules that Governor Roy Romer’s Executive Ord er at the time it was issued with regard to prohibiting smoki ng in State Institutions is not a Scientifically Proven Order; therefore, defendants were not deliberate or intentional in th eir actions and it is ORDERED that plaintiff cannot recover in this case. Court ORDERS that this case is dismissed without co sts to be awarded. Thereafter, the district court entered an order, st ating in part: “The Court rules as a matter of law that defendants’ actions were not d eliberate or intentional and it is ORDERED that plaintiff’s complaint is DISMISSED bas ed upon the doctrine of qualified immunity.”
Unfortunately, the above represents the entire pert inent portion of the record on appeal.
Mr. Waits appeals these rulings, asserting: (1) Th e district court erred in ruling as a matter of law that Defendant’s actions were not deliberate or intentional; (2) the district court erred in dismis sing the Plaintiff’s complaint based on the doctrine of qualified immunity; and (3 ) the district court erred in stopping the bench trial prematurely, before any wi tnesses or evidence were presented. 2Mr. Waits has also filed a Motion to Dismiss Appe llees’ OpeningSixth Amendment right to counsel is explicitly confined to criminal prosecutions, and

limited to the risk of loss of liberty. See United States v. Deninno , 103 F.3d 82, 86 (10th Cir. 1996). Even if treated as a request for appointment of counsel under 28 U.S.C. § 1915(e)(1), Mr. Waits’ failure to file a timely appeal prevents this court from addressing the merits of such a request. -4- Brief on the ground Appellees failed to file their brief within the time frame enumerated in the clerk of court’s letter.

Jurisdiction Appellees first argue we have no jurisdiction to de cide this appeal, contending the notice of appeal was not timely file d. Mr. Waits did not reply to this contention. The final judgment in this case w as entered February 6, 1998. The notice of appeal was dated and filed by counsel for Mr. Waits on March 11, 1998. This was thirty-three days after the entry o f the final judgment. Thereafter, on April 10, 1998, Mr. Waits was granted leave to p roceed on appeal by the district court by paying the filing fee in installm ents.
Rule 4(a)(1) of the Federal Rules of Appellate Proc edure provides, in part: [I]n a civil case in which an appeal is permitted b y law as of right from a district court to a court of appeals the not ice of appeal ... must be filed with the clerk of the district court withi n 30 days after the date of entry of the judgment or order appealed fro m .... An appellate court acquires jurisdiction over an ap peal from a district court-5-

decision only upon the timely filing of a notice of appeal. See Smith v. Barry , 502 U.S. 244, 244 (1992). Once an appellate court determines a notice of appeal is untimely, it is without discretion to review the merits and must dismiss the appeal. See Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 203 (1988).
The record on appeal reveals no motions that might have extended the time for filing the notice of appeal.
The requirement to file a timely notice of appeal i s both mandatory and jurisdictional and is a requirement this court is w ithout power to waive. Consequently, we have no jurisdiction to hear this appeal.
The appeal is DISMISSED
. Entered by the Court: WADE BRORBY United States Circuit Judge