                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 9, 2013
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court



 SOLOMON BOWENS,

          Plaintiff - Appellant,
                                                        No. 13-1160
 v.                                            (D.C. No. 1:13-CV-00081-LTB)
                                                          (D. Colo.)
 STERLING CORRECTIONAL
 FACILITY; THE WARDEN, in his
 individual capacity, Sterling
 Correctional [Facility],

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges. **


      Plaintiff-Appellant Solomon Bowens, a Colorado state inmate proceeding

pro se, appeals from the dismissal without prejudice of his civil rights complaint,

42 U.S.C. § 1983. Mr. Bowens sought damages for inadequate medical care of

multiple sclerosis. Pursuant to Rule 41(b), Fed. R. Civ. P., the district court

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
dismissed the complaint based upon Mr. Bowens’ failure to comply with a court

order. R. 23-24. The magistrate judge had ordered Mr. Bowens to file an

amended complaint that was legible, sued the proper parties, complied with

pleading requirements, and alleged the personal participation of each named

Defendant. R. 17-22.

      Mr. Bowens’ notice of appeal was received on April 19, 2013, two days

after the 30-day deadline. See Fed. R. App. Proc. 4(a)(1). However, Mr. Bowens

submitted a sworn affidavit stating that his notice of appeal was filed in the

correctional facility’s mail system on April 15, 2013; a statement supported by a

copy of the envelope. Based on this evidence, we conclude that Mr. Bowens’

notice of appeal was timely. See Fed. R. App. P. 4(c)(1).

      Nothing in the record demonstrates that Mr. Bowens timely filed a second

amended complaint as directed by the February 5, 2013, order. On appeal, he

argues that he requires the assistance of an attorney given his health and also

argues the merits of his claim. However, his filing to this court does not

substitute for his lack of filing in the district court. Accordingly, the district

court did not abuse its discretion in dismissing the complaint. See Cosby v.

Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003) (standard of review).

      AFFIRMED. We DENY Mr. Bowens’ motion for leave to proceed without




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prepayment of costs or fees and order immediate payment of the unpaid balance

due.




                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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