                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         October 10, 2013
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 GERALD SENSABAUGH,
                Plaintiff–Appellant,                            No. 13-1217
 v.                                                  (D.C. No. 1:12-CV-02619-BNB)
 JOHN HICKENLOOPER,                                               (D. Colo.)
                Defendant–Appellee.


                                          ORDER*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Plaintiff, a pro se state prisoner, filed a complaint under 42 U.S.C. § 1983 alleging

that prison officials are violating his constitutional rights by failing to comply with a

special master’s order entered in 2006 in the case of Montez v. Hickenlooper, No. 92-cv-

00870-CMA-OES. The magistrate judge issued an order directing Plaintiff to file an

amended complaint to cure certain deficiencies in the complaint. Plaintiff did so, but the

magistrate judge concluded that the amended complaint was likewise deficient. The

magistrate judge gave Plaintiff one final opportunity to cure the deficiencies by filing a

second amended complaint. However, rather than filing a second amended complaint,

Plaintiff filed this appeal.


       *
         This order is not binding precedent, except under the doctrines of law of the case,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.
       This court issued an order directing Plaintiff to show cause why the appeal should

not be dismissed for lack of jurisdiction and advising him he could file a new appeal after

entry of a final judgment by the district court. The district court thereafter issued an order

dismissing the action based on Plaintiff’s failure to file a second amended complaint.

However, Plaintiff did not file a notice of appeal to appeal the district court’s order of

dismissal. Nor did his subsequent response to the show cause order refer to the district

court’s dismissal order. Rather, he simply “request[ed] the appeals court to order the

district court to get on with it” (“Motion to Respond to Court[’]s Order of 5-16-13” at 3

(capitalization standardized)) and “to move forward with the case at the bar and stop

friviolous [sic] delay tactics” (id. at 1 (capitalization standardized)).1

       We conclude we lack jurisdiction to review Plaintiff’s appeal because the order he

appealed, the magistrate judge’s order, was not a final order, see Phillips v. Beierwaltes,

466 F.3d 1217, 1222 (10th Cir. 2006), and Plaintiff failed to file a notice of appeal

following the district court’s final order of dismissal. The only document Plaintiff filed

within the thirty-day period for appealing this decision was his response to our show

cause order, which did not refer to the district court’s order and cannot reasonably be

construed as a notice of appeal from that decision. See Smith v. Barry, 502 U.S. 244, 248

(1992) (“[W]hen papers are technically at variance with the letter of Rule 3, a court may

nonetheless find that the litigant has complied with the rule if the litigant’s action is the


       1
        Although the district court’s dismissal order was issued before Plaintiff filed his
response, it is not clear whether Plaintiff was aware of the dismissal when he responded.

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functional equivalent of what the rule requires. This principle of liberal construction does

not, however, excuse noncompliance with the rule.” (internal quotation marks, citations,

and alterations omitted)).

       For the foregoing reasons, we DISMISS the appeal for lack of appellate

jurisdiction. To the extent Plaintiff’s response to our show cause order can be construed

as a request for a writ of mandamus to require the district court to proceed with the

litigation, we DENY it as moot. We GRANT Plaintiff’s motion to proceed in forma

pauperis on appeal and remind him of his obligation to continue making partial payments

until the entire filing fee has been paid in full.

                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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