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This order and judgment is not binding precedent, except under the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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