                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              December 22, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


    LEONARD BALDAUF,

               Plaintiff!Appellant,

    v.                                                 No. 08-1158
                                            (D.C. No. 01-CV-01315-REB-CBS)
    JOHN HYATT; ROBERT FAHEY,                           (D. Colo.)
    Lieutenant, Fremont Corr. Facility;
    GARY NEET, Warden; GLORIA
    MASTERSON; CHARLES TAPPE,
    Hearing Officer; RICHARD
    MARTINEZ, Hearing Officer; BETTY
    FULTON, Case Manager; DAVID
    ROBERTS, Case Manager; PAUL
    CARRERAS, Lieutenant; WILLIAM
    ZALMAN, Director of Offender
    Services; CONNIE DAVIS, Sergeant;
    PATRICIA ROMERO, Mental Health
    Case Worker; KEN MAESTAS,
    Lieutenant; SERGEANT GARCIA,
    (First name unknown); LIEUTENANT
    CARR, (F.N.U.); DAVID
    ARCHULETA, Sergeant; CHAD
    NELSON, Officer; UNKNOWN
    PROPERTY OFFICER; NARD
    CLAAR, Asst. Warden; MAJOR
    HARLAN, (F.N.U.),

               Defendants!Appellees.



                           ORDER AND JUDGMENT *

*
     After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
                                                                     (continued...)
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



      This is the third appeal in this prisoner civil rights case brought pursuant to

42 U.S.C. § 1983. We dismiss in part, and affirm in part.

      Plaintiff Leonard Baldauf, a prisoner of the State of Colorado appearing pro

se, brought suit under § 1983, alleging that his constitutional rights had been

violated. Initially, the district court dismissed the complaint, in part for lack of

jurisdiction under the Heck doctrine, see Heck v. Humphrey, 512 U.S. 477 (1994).

R., Doc. 30, at 6-7, Doc. 32. Plaintiff appealed, and we remanded for the district

court to conduct additional proceedings to resolve whether it had jurisdiction.

Baldauf v. Hyatt, 120 F. App’x 288 (10th Cir. 2005). On remand, the district

court concluded that it did have jurisdiction to proceed, see R., Docs. 71, 75, and,

on defendants’ renewed motion to dismiss, dismissed all of plaintiff’s claims on

the merits except for his first claim for relief against defendants Fahey, Hyatt,

other unnamed officers, Carreras, Davis, Fulton, Maestas, Garcia, and Archuleta,




*
 (...continued)
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                          -2-
id., Doc. 92, at 10-13, Doc. 103, at 3. We dismissed plaintiff’s interlocutory

appeal from the district court’s order.

      Proceedings then continued in the district court on plaintiff’s remaining

claim against the remaining parties. The district court granted plaintiff’s motion

for appointment of counsel. Id., Doc. 130. After some discovery, defendants

filed a motion for summary judgment. Id., Doc. 146. Plaintiff’s counsel filed a

brief in response, id., Doc. 153, but failed to object to the magistrate judge’s

subsequent recommendation to grant summary judgment, id., Doc. 161. The

district court adopted the recommendation on January 31, 2008, id., Doc. 162, and

entered judgment on February 21, 2008, id., Doc. 163.

      On March 11, 2008, plaintiff’s counsel filed a motion for relief, arguing

that his failure to file objections was due to excusable neglect because he did not

receive the order referring the matter to the magistrate judge or the magistrate

judge’s recommendation. Id., Doc. 167. The district court considered the motion

for relief under Fed. R. Civ. P. 60(b), but denied it on April 8, 2008, because

counsel had admitted that his office had had problems in the past receiving court

filings through the electronic case management system, including in this case;

because counsel did not move for relief promptly upon receiving the district

court’s January 31 order adopting the magistrate judge’s recommendation; and

because counsel “failed to present any argument suggesting that plaintiff may

have one or more meritorious objections to the magistrate judge’s

                                          -3-
recommendation.” R., Doc. 176, at 2-3. The district court reasoned that counsel

should have been more vigilant. Id. at 3. Plaintiff filed this appeal pro se,

designating the order granting summary judgment and the order denying relief

from the judgment.

      We lack jurisdiction over the order granting summary judgment because

plaintiff’s notice of appeal was untimely as to that order. The judgment was

entered on February 21, 2008. See id., Doc. 163. Plaintiff filed his notice of

appeal on April 28, 2008, see id., Doc. 177, more than thirty days after the

judgment was entered, and the notice of appeal was therefore untimely. See

Fed. R. App. P. 4(a)(1)(A). His motion for relief was not filed within ten days of

the judgment, so it did not toll the time to file an appeal. See Rule 4(a)(4)(A)(vi).

To the extent that plaintiff challenges the grant of summary judgment, we dismiss

the appeal.

      We have jurisdiction to review the denial of plaintiff’s motion for relief

because plaintiff’s April 28, 2008, notice of appeal was filed within thirty days of

the district court’s April 8, 2008, order denying that motion. See Rule 4(a)(1)(A).

Plaintiff raises no arguments as to the denial of his motion for relief, however; all

of his arguments on appeal relate to the grant of summary judgment. We

therefore affirm the district court’s denial of the motion for relief without further

discussion.




                                          -4-
      The appeal is DISMISSED in part and the judgment of the district court is

otherwise AFFIRMED. Appellant’s motion for leave to proceed in this court

without prepayment of costs and fees is DENIED. Appellant shall pay the fees

within thirty days of the date of this order.


                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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