* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MYRON RAY CARTER,

Plaintiff-Appellant,

v. WARREN T. DIESSLIN; JOHN STARK; JON JOHNSON; WILLIAM BRUNELL; WARREN LEONARD; MARY STOUT; PATRICIA L. MCCARTHY; KENT JOHNSON; GARY CROWDER; MARCUS WARD; FRANK M. SMITH; WILLIAM TURNER; TERI REED; SUSAN MILLER; FAIRE FEAZ, “John Does” and other unnamed and unknown agents of the Buena Vista Correctional Facility, or successors in office, individually and in their official capacities,

Defendants-Appellees. No. 99-1118 (D.C. No. 93-D-2247) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.1 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

2 Plaintiff has consented to disbursement of partial payments of the filing fees from his prison account. He must pay $105.00 to the clerk of the district court. His custodian shall, within thirty days of the date of this order, deduct and pay to the clerk of the United States District Court for the District of Colorado an amount equal to twenty percent of the greater of--

A) the average monthly deposits to his account, or B) the average monthly balance in his account for the six-month period immediately preceding fil ing of the notice of appeal in this case. In either event, plaintiff’s custodian shall forwar d payments from plaintiff’s account equal to twenty percent of the preceding mo nth’s income each time the account exceeds $10.00 until the filing fees are p aid in full. The clerk of this court is directed to serve a copy of this order on plaintiff’s custodian forthwith.

-2- Plaintiff Myron R. Carter appeals from the district court ’s judgment granting summary judgment to defendants on his civi l rights claims filed pursuant to 42 U.S.C. § 1983. 1 He has also moved for leave to proceed without prepayment of fees; that motion is granted. 2 On appeal, plaintiff contends that the district court erred in granting summary judgme nt to defendants because his complaint and affidavit allege sufficient specific facts supporting his claims of denial of access to the courts, wrongful and retali atory disciplinary hearings,3 In connection with his motion to amend before the district court , plaintiff

sought to add an additional plaintiff, Ms. Betty A. James, to his suit. Although the district court denied his request, Ms. James’ name was included i n plaintiff’s notice of appeal. Upon this court’s order to show cause, Ms. James has filed a “motion to dismiss notice of appeal,” essentially a sking this court to dismiss her from the case. The motion is granted; Ms. James is dismissed as a nonparty.

4 Defendants suggest that we dismiss this appeal because plaintiff’s appendix is deficient. See Appellees’ Br. at 6. In turn, plaintiff asserts that we should (continued...) -3- failure to protect him from harm, racial harassmentand retaliation, wrongful change of cell assignment, wrongful termination, wr ongful withholding of funds, and civil conspiracy. He also contends that the di strict court erred in disallowing his discovery requests based on defendants’ qualifi ed immunity defense. Finally, he asserts error in the court’s denial of his motio n to amend his complaint to add new claims and defendants. 3 We review the district court’s grant of summary jud gment de novo, applying the same standards as the district court p ursuant to Fed. R. Civ. P. 56(c). See Dodge v. Cotter Corp., 203 F.3d 1190, 1201 (10th Cir. 2000). The district court’s rulings regarding plaintiff’s disc overy requests and his motion to amend his complaint are reviewed only for abuse of discretion. See Cole v. Ruidoso Mun. Schs. , 43 F.3d 1373, 1386 (10th Cir. 1994); Grossman v. Novell,
Inc. , 120 F.3d 1112, 1126 (10th Cir. 1997). After careful consideration of plaintiff’s argument s together with defendants’ response, the record on appeal, 4and the applicable law, we conclude4 (...continued)

strike defendants’ brief as untimely filed. See Reply Br. at 3. There is no basis for plaintiff’s assertion; defendants’ brief was ti mely filed as scheduled on our docket. We decline defendants’ invitation to dismi ss on technical grounds because their supplemental appendix provides the necessary documents. See O’Dell v. Shalala , 44 F.3d 855, 857 n.2 (10th Cir. 1994) (stating th at court chose to address case on the merits where, although recor d was inadequate, excerpts were sufficient to support the agency’s determinati on). -4- that the district court correctly decided this case. Therefore, for subst antially the same reasons as set forth in the magistrate judge’s recommendation dated January 13, 1998, and the district court ’s order dated February 12, 1999, the judgment of the United States District Court for th e District of Colorado is
AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge