UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KARL GRANT LOSEE, 

 Plaintiff-Appellant, 

v. 

DAVID MORRELL; PAUL 

GARDNER; LARRY BUSSIO; 

STEVEN TURLEY; LOWELL 

CLARK; TOM PATTERSON; 

HOLLY NEVILLE; ALFRED 

BIGELOW; CRAIG BALLS; BILLIE 

CASPER; TOM ANDERSON; 

KERRY GALETKA; ANNA LEE 

CARLSON; WAYNE BULKLEY; 

REX TALBOT; JERRY POPE; C. 

GALLEGOS; ROBERT RIGBY; 

HEATHER HENRIE; MAYNA 

FULLER-MYER, 

 Defendants-Appellees, 

and 

WAYNE FREESTONE; DAVID 

ANGERHOFER, 

 Defendants. 

No. 14-4148 

(D.C. No. 2:11-CV-00080-TC) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

 

*

 The parties do not request oral argument, and the Court has 

determined that oral argument would not materially aid our consideration 

of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we 

have decided the appeal based on the briefs. 

(continued) 

FILED 

United States Court of Appeals

Tenth Circuit 

August 19, 2015

Elisabeth A. Shumaker 

Clerk of Court

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_________________________________ 

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

Mr. Karl Losee is a state prisoner who sued under 42 U.S.C. § 1983, 

alleging that the defendants violated his constitutional rights. The district 

court dismissed the claims against Mr. Wayne Freestone and Mr. David 

Angerhofer and granted summary judgment to the remaining defendants. 

The district court entered final judgment on April 3, 2014. Mr. Losee 

moved to alter or amend the judgment, and the district court denied the 

motion. Eight days later, Mr. Losee appealed, but did not say whether he 

was appealing the judgment or the order denying his motion to alter or 

amend. We affirm. 

Appeal of the Judgment 

The threshold issue involves the extent of our appellate jurisdiction. 

In our view, jurisdiction is confined to review of the order denying the 

motion to alter or amend. 

To appeal the underlying judgment, Mr. Losee had to file the notice 

of appeal within 30 days of the entry of judgment.1

 Mr. Losee didn’t file 

anything in this 30-day period. But 55 days after entry of the judgment, he 

 

 Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

1

 Fed. R. App. P. 4(a)(1)(A). 

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filed a motion to alter or amend the judgment, invoking Federal Rules of 

Civil Procedure 59(e) and 60(b). 

This kind of motion can toll the time to file a notice of appeal 

regarding the judgment, but only if the motion is filed within 28 days of 

the entry of judgment.2

 This 28-day period had ended long before 

Mr. Losee filed his motion. 

“Compliance with filing requirements is mandatory and 

jurisdictional.”3

 We lack jurisdiction to review the judgment because (1) 

Mr. Losee waited more than 30 days to file the notice of appeal and (2) his 

post-judgment motion was not filed within the 28-day period.4

Appeal of the Order Denying the Motion to Alter or Amend 

But Mr. Losee filed the notice of appeal within 30 days of the denial 

of his motion to alter or amend the judgment. Thus, we have jurisdiction to 

review that ruling.5

In the motion, Mr. Losee argued that the district court had 

“committed plain and fatal error in ordering the grant of summary 

 

2 See Fed. R. App. P. 4(a)(4)(A)(iv), (vi); Fed. R. Civ. P. 59(e). 

3 Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842, 845 (10th 

Cir. 2010) (internal quotation marks omitted). 

4 See id. at 848. 

5 See Servants of Paraclete v. Does, 204 F.3d 1005, 1008 (10th Cir. 

2000). 

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judgment . . . since the defendants openly admitted guilt . . . and because 

the pleadings filed, when viewed in the light most favorable to the 

petitioner, . . . [were] enough to defeat summary judgment.”6

 In response, 

the defendants argued that Mr. Losee had failed to show “an intervening 

change in the controlling law, new evidence previously unavailable, or the 

need to correct clear error or prevent manifest injustice.”7

 The district 

court denied Mr. Losee’s motion, explaining that it had “thoroughly 

revisited its Order granting summary judgment and [saw] no error, plain or 

otherwise, that call[ed] into question the correctness of its ruling.” 8

We review that ruling for abuse of discretion.9

 Applying this 

standard, we conclude that the district court did not abuse its discretion 

because (1) Rules 59(e) and 60(b) cannot be used to reargue points already 

briefed and decided,10 and (2) Mr. Losee’s argument consisted only of a 

 

6

 R., Vol. 1 at 532. 

7 Id. at 538-39. 

8 Id. at 540. Mr. Losee also asked Judge Robert Shelby to consider the 

motion to alter or amend even though his assigned judge was Judge Tena 

Campbell, rather than Judge Shelby. 

9 See Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 

1228 (10th Cir. 2009). 

10 See Servants of Paraclete, 204 F.3d at 1012 (stating that a motion to 

reconsider under Rule 59(e) “is not appropriate to revisit issues already 

addressed or advance arguments that could have been raised in prior 

briefing”); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 

(continued) 

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single conclusory sentence saying that the district court should not have 

granted the summary judgment motion.11 Accordingly, we affirm the 

district court’s order denying the motion to alter or amend the judgment. 

Appellant’s Motion for Leave to Proceed Without Prepayment of Costs or 

Fees is granted. Mr. Losee is reminded that he is obligated to continue 

making partial payments until the entire fee has been paid. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

(10th Cir. 2006) (“Rule 60(b) relief is not available to allow a party merely 

to reargue issues previously addressed to the court.”). 

11 See Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) 

(stating that the district court did not abuse its discretion in denying a 

motion under Rule 59(e) based only on conclusory statements); Barta v. 

Long, 670 F.2d 907, 909 (10th Cir. 1982) (stating that the party invoking 

Rule 60(b) could not rely on conclusory statements). 

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