* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 

### FEB 16 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FREDERICK MARTIN, Plaintiff-Appellant, v. CHARLES SIMMONS, Secretary of Corrections, DAVID MCKUNE, Warden, DARREL KERR, Business Manager, LISA MENDOZA, Attorney, Department of Corrections, and MARTIN ASHER, District Court Judge, Defendant-Appellees. No. 00-3294 (D.C. No. 98-CV-3259) (D. Kan.)

ORDER AND JUDGMENT *

Before EBEL, KELLY and LUCERO , Circuit Judges.
Plaintiff-Appellant Frederick Martin (“Martin”), is an inmate in the Kansas State Penitentiary in Lansing, Kansas. Because Martin’s complaint was dismissed1 This additional deduction was apparently the resultof a clerical error.

According to the district court’s order of February 2, 1999, the money was later returned to Martin’s account. - 2 - at the pleading stage, we assume the facts in his c omplaint are true. See , e.g. , Freeman v. Dep’t of Corr. , 949 F.2d 360, 361 (10th Cir. 1991). This action arises out of an earlier suit Martin fi led in Kansas state district court alleging that prison officials had unlawfully deprived him of the use of money in his prison trust account by preventing him from sending more than $30 out of the prison each month. (Complaint at 2.) C iting prison regulations, the officials had refused Martin permission to send his mother $300 to pay for living expenses. (Id. at 3.) Martin filed suit in state court seeking a n injunction to prevent prison officials from enforcing the regulat ion. (Id. ) Kansas District Judge Martin Asher (“Asher”) dismissed the case the case on the merits and denied Martin’s motion for in formapauperis status to file certain post-judgment motions. Therefore, pursuant to 28 U.S.C. § 1915(b ), prison officials deducted $55 to pay a filing fee for post-judgment motions a s well as $63.50 in “unspecified costs” associated with his case. (Id. at 4-5.) 1 Martin then filed suit against the same group of pr ison officials as well as Asher himself in federal district court. (Id. passim .) In this second suit, Martin renews his claim for injunctive relief and damages arising from the regulation limiting his use of funds in the prison trust accou nt, and he sought damages for an- 3 -

alleged conspiracy by Asher and the prison official s to deprive him of money in his prison trust account by confiscating filing fee s. (Id. ) The federal district court dismissed the action on February 18, 1999, holding that Martin’s objection to the regulation w as barred by principles of res judicata, and that he failed to allege a cause of a ction with respect to the alleged conspiracy to confiscate funds to pay filing fees i n the earlier action. (Order of 2/18/99) Martin filed a “Motion to Rescind” the or der on February 25, questioning the district court’s disposition of the case and seeking a hearing before a magistrate on the merits of his claim. Th e district court construed the filing as a motion to alter or amend a judgment pur suant to Fed. R. Civ. P. 59(e), and denied the motion in an order dated Sept. 29, 1 999. Although Plaintiff did not file timely notice of appeal of this order, he filed four additional postjudgment motions which the district court denied in an order dated July 24, 2000, incorporating the reasoning of the September 29, 19 99 order by reference. Martin did not appeal the July order, but instead f iled a “Motion for Specific Findings of Fact” which the district courtdenied on August 25, 2000. Martin filed timely notice of appeal from this orde r on September 1, 2000. DISCUSSION Because Martin has filed timely notice of appeal on ly with respect to the district court’s August 25 order denying his “Motio n for Specific Findings of- 4 -

Fact,” this court lacks appellate jurisdiction to r eview the district court’s prior orders. See Fed. R. App. P. 4 (“In a civil case . . . the noti ce of appeal required by Rule 3 must be filed with the district clerk wit hin 30 days after the judgment or order appealed from is entered.”). Moreover, wh ile Martin styled his motion as one for relief from the February 18, 1999 order pur suant to Rule 59(e), we note that it was filed far outside the ten-day deadline for such a motion. See Fed. R. Civ. P. 59(b). Therefore, we construe his filing a s a motion for relief from judgment pursuant to Rule 60(b). See Weitz v. Lovelace Heath System, Inc. , 214 F.3d 1175, 1181 (10th Cir. 2000). We review a dist rict court’s disposition of a Rule 60(b) motion for abuse of discretion. See id. In reviewing such an order, this Court typically reviews only the order denying the motion, and we do not address the merits of the underlying judgment. See Amoco Oil Co. v. United States E.P.A. , 231 F.3d 694, 697 (10th Cir. 2000). “Under this standard, we will not reverse unless the trial court has made an ‘arb itrary, capricious, whimsical, or manifestly unreasonable judgment.’” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 992 (10th Cir. 1999). We affirm the district court’s dismissal for substa ntially the reasons set forth in its orders of July 24, 2000, September 29, 1999, and February 18, 1999. While we do not rule on the merits of the district court’s order dismissing Martin’s complaint, its decisions on the merits wer e not arbitrary, capricious or- 5 -

whimsical. (Order 2/18/99.) See , e.g. , 28 U.S.C. § 1915(b) (requiring courts to assess and collect fees from prisoners filing suits informapauperis ); Hall v. Stone , 170 F.3d 706, 707-08 (7th Cir. 1999) (“Custodians must remit under § 1915 without regard to the prisoner’s wishes.”); Al len v. McCurry , 449 U.S. 90, 95 (1980) (holding that principles of res judicata will preclude parties from litigating issues in federal court that have alread y been decided in a state forum). Moreover, given that Martin had unsuccessfully chal lenged the February 18 order in a prior Rule 59(e) motion and failed to ap peal that decision, it was not an abuse of discretion for the district court to refus e to revisit those issues in a subsequent Rule 60(b) motion. Therefore, we AFFIRM the district court’s order of August 25.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge