Michael Bartowsheski v. Sadie Lopez, Captain Waide Gloria Greenmiesal, Peggy Hiel, Department of Corrections, Colorado

42 F.3d 1406 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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. Michael BARTOWSHESKI, Plaintiff-Appellant, v. Sadie LOPEZ, Captain Waide Gloria Greenmiesal, Peggy Hiel, Department of Corrections, Colorado, Defendants-Appellees. No. 94-1076. United States Court of Appeals, Tenth Circuit. Nov. 30, 1994. ORDER AND JUDGMENT1 Before MOORE, ANDERSON and KELLY, Circuit Judges.2 [1] Mr. Bartowsheski, appearing pro se, challenges the district court's denial of his January 4, 1994 motion for an extension of time in which to file his notice of appeal from an order entered on August 13, 1993. He relies upon Fed. R.App. P. 4(a)(5) and argues that he has demonstrated excusable neglect. See City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045-47 (10th Cir.1994). Our jurisdiction to consider this appeal from the denial of Mr. Bartowsheski's motion arises under 28 U.S.C. 1291 and we must affirm because the district court was without power to grant the motion. Rule 4(a)(5) permits an extension of the time to file a notice of appeal only if the motion so requesting is "filed not later than 30 days after the expiration of the time prescribed" for filing a notice of appeal. See TBG, Inc. v. Bendis, Nos. 93-3130, 93-3131, 93-3132, 93-3173, 1994 WL 508284, * 3 (10th Cir. Sept. 19, 1994). The right to appeal has passed. See Mayfield v. United States Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir.1981). [2] AFFIRMED. We GRANT Mr. Bartowsheski leave to proceed in forma pauperis. The mandate shall issue forthwith. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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) [2] 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