                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 4 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ANTHONY L. LEE,

                Plaintiff-Appellant,

    v.                                                   No. 00-1014
                                                     (D.C. No. 99-Z-1568)
    JOHN W. SUTHER; Mrs. S.                                (D. Colo.)
    MCGUIRER; Mrs. C. BRUNETT;
    KARL GILGE; THOMAS E. KOLLE;
    CLYDE STAHL; John Does 7 to 50,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Anthony L. Lee, a prisoner in the custody of the Colorado

Department of Corrections, brought this action asserting claims under 42 U.S.C.

§ 1983 and the Americans with Disabilities Act (ADA) against defendants, who

are Department employees. Specifically, Lee claimed that (1) defendants were

deliberately indifferent to his serious medical needs with respect to an ankle

injury and thereby violated the Eighth Amendment’s prohibition against cruel and

unusual punishment; (2) the conditions at the Buena Vista Correctional Facility,

where he was housed for a short period, violated the ADA and the Eighth

Amendment; and (3) false information in his prison file, indicating he was an

escape risk, caused him to be rejected for community corrections placement and

thus violated his right to due process.

      Following his response to the district court’s order to show cause why the

complaint should not be dismissed for failure to exhaust administrative remedies,

the district court determined that Lee had failed to exhaust properly his first two

claims. See 42 U.S.C. § 1997e(a). The district court also found that any ruling

favorable to Lee on the merits of his third claim would necessarily imply the

invalidity of his continuing confinement and was therefore barred by    Heck v.

Humphrey , 512 U.S. 477, 486-87 (1994) (to recover damages for unconstitutional

imprisonment, prisoner must show that sentence has been invalidated).     See Crow

v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996) (applying    Heck to claim implying


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alleged invalidity of parole revocation);    Butterfield v. Bail, 120 F.3d 1023, 1024

(9th Cir. 1997) (applying     Heck to claim regarding denial of parole). The court

therefore dismissed the complaint without prejudice. It also denied Lee’s motion

for reconsideration filed under Fed. R. Civ. P. 59(e). Lee appeals.

       Defendants argue that we lack jurisdiction to consider Lee’s appeal because

he filed his notice of appeal more than thirty days after the district court’s denial

of his Rule 59(e) motion.      See Fed. R. App. P. 4(a)(1). Even under the prison

mailbox rule, Lee’s notice of appeal would be untimely based on the date the

district court denied the Rule 59(e) motion. However, the district court never

entered judgment on a separate document as required by Rule 58, and thus, the

period for filing the notice of appeal never began to run.    See Clough v. Rush , 959

F.2d 182, 185 (10th Cir. 1992). Because it is clear the district court intended its

order dismissing Lee’s claims as its final decision, we will deem the separate

document requirement waived and will assert jurisdiction over the appeal.       See id.

at 186.

       We review de novo the district court’s dismissal for failure to exhaust

administrative remedies,      Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir.

2000), and its dismissal on     Heck grounds, which we construe as due to failure to

state a claim, Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

We have considered Lee’s arguments on appeal and have reviewed the record, and


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we are not persuaded that the district court erred in dismissing his complaint. We

therefore affirm the district court for substantially the same reasons as stated in

its November 8, 1999 order and judgment dismissing Lee’s complaint and its

November 24, 1999 order denying reconsideration.

      The judgment of the district court is AFFIRMED. Lee’s motion for an

order of default is DENIED. The mandate shall issue forthwith. Lee is reminded

that he remains obligated to continue making partial payments of the appellate

filing fee pursuant to 28 U.S.C. § 1915(b).



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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