                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 6 2002
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JAMES SHAW,

          Plaintiff-Appellant,
 v.
                                                       No. 01-1525
                                                    (D.C. No. 01-Z-636)
 COLORADO DEPARTMENT OF
                                                         (D. Colo.)
 CORRECTIONS, MEDICAL
 DEPARTMENT,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.


      We will exercise jurisdiction over this appeal despite the apparent

untimeliness of Shaw’s notice of appeal because the district court failed to enter

judgment on a separate document, as required by Federal Rule of Civil Procedure

58. Under such circumstances, judgment is not final, but we nevertheless will



      *
        After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
address the merits in the interest of efficiency and judicial economy. See Clough

v. Rush, 959 F.2d 182, 185-86 (10th Cir. 1992).

      As recognized by the district court, Shaw’s section 1983 suit against the

Colorado Department of Corrections is barred by the Eleventh Amendment. See

Griess v. State of Colorado, 841 F.2d 1042, 1045 (10th Cir. 1988). Accordingly,

the district court’s dismissal of the complaint was appropriate.

                                  CONCLUSION

      The district court’s dismissal of Shaw’s complaint is AFFIRMED. We will

not consider Shaw’s motion to amend his complaint, as it was not raised below

and thus is not properly before us on appeal. Shaw’s motion to proceed without

prepayment of the filing fee is DENIED. The unpaid balance of the filing fee is

due and should be paid immediately.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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