                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 15 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    ANGELA MICHELE VALDIVIA,

                Plaintiff-Appellant,

    v.                                                   No. 03-1249
                                                  (D.C. No. 00-S-592 (CBS))
    OFFICER OROSCO; KRISTINA                              (D. Colo.)
    KESSLER, MRT; MARYANNE
    ALESSI, PA; JANE CARVER, RN III,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
       Angela Valdivia, appearing pro se, appeals from summary judgment granted

in favor of defendants on her civil rights suit, brought under 42 U.S.C. § 1983, in

which she alleges violation of the Eighth Amendment. Ms. Valdivia complains

that the district court improperly granted summary judgment without giving her a

chance to respond because she did not receive notice of the magistrate judge’s

report and recommendation. Concluding that Ms. Valdivia’s notice of appeal was

not timely filed, we dismiss the appeal.

       Summary judgment was granted on February 25, 2003. The court construed

a letter from Ms. Valdivia, in which she alleged failure to receive the magistrate

judge’s report and recommendation, as a motion for reconsideration, and denied

that motion on March 17, 2003. Ms. Valdivia therefore had thirty days from

March 17 to file a notice of appeal. Fed. R. App. P. 4(a)(4)(A). Instead, Ms.

Valdivia filed a motion objecting to the denial of reconsideration, which the court

denied on April 29. Such a motion is unauthorized by the rules of civil

procedure and had no effect on the running of the appeal time. Ms. Valdivia did

not file her notice of appeal until May 29. “[S]ince the taking of an appeal within

the prescribed time is mandatory and jurisdictional,” we are without jurisdiction

to review the decision on the merits.   See Budinich v. Becton Dickinson & Co.,

486 U.S. 196, 203 (1988); and cf. Jenkins v. Burtzloff, 69 F.3d 460, 464 (10th Cir.

1995) (dismissing prisoner pro se appeal for failure to timely file notice of appeal).


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      The appeal is DISMISSED. The motion to proceed     in forma pauperis has

been granted; and Ms. Valdivia shall continue making payments toward her filing

fees until the entire balance is paid in full.



                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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