Waylon Gene Majeski v. Doctor Neufeld and Doctor Carlson , 51 F.3d 286 ( 1995 )

51 F.3d 286

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Waylon Gene MAJESKI, Plaintiff-Appellant,
v.
Doctor NEUFELD and Doctor Carlson, Defendants-Appellees.

No. 94-1295.

United States Court of Appeals, Tenth Circuit.

March 29, 1995.

Before TACHA, LOGAN and KELLY, Circuit Judges.*

ORDER AND JUDGMENT**

PAUL KELLY, Jr., Circuit Judge.

1

Mr. Majeski, appearing pro se and in forma pauperis, appeals from the dismissal of his civil rights complaint against the Defendants based on alleged inadequate medical care, 42 U.S.C. Sec. 1983. Upon the magistrate judge's recommendation, the district court dismissed the case with prejudice pursuant to 28 U.S.C. Sec. 1915(d). More than sixty days later, Mr. Majeski moved to file an amended complaint. The district court denied the motion because the case had been dismissed. Mr. Majeski now appeals.

2

We are without jurisdiction over the judgment of dismissal because Mr. Majeski failed to take a timely appeal. See Fed.R.App.P. 4(a)(1) & (5); TBG, Inc. v. Bendis, 36 F.3d 916, 921-22 (10th Cir.1994); Sooner Products Co. v. McBride, 708 F.2d 510, 511 (10th Cir.1983). As for the denial of the motion to file an amended complaint, the district court did not abuse its discretion; the amended complaint not only was untimely, but also substantially similar to the original complaint. See Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir.1985).

3

AFFIRMED. The mandate shall issue forthwith.

*

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); 10th Cir.R. 34.1.9. The cause therefore is 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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order. 151 F.R.D. 470 (10th Cir.1993)