FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 23, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 WYTRICE SILER,

          Plaintiff - Appellant,
                                                        No. 08-1336
 v.                                             (D.C. No. 08-CV-01426-ZLW)
                                                          (D. Colo.)
 DENVER DEPT. OF CORRECTIONS;
 WARDEN M. BROADDUS;
 EXECUTIVE WARDEN ARISTEDES
 W. ZAVARAS,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges. **


      Plaintiff-Appellant Wytrice Siler, a state prisoner appearing pro se, appeals

from the district court dismissal of her § 1983 action alleging injuries caused by

the Denver Department of Corrections and various prison officials

(“Defendants”). The district court dismissed the action without prejudice based

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
upon a failure to cure deficiencies identified by the magistrate judge within the

time allotted. Ms. Siler then filed a notice of appeal of the order of dismissal.

She also sought reconsideration on the grounds that she had complied based upon

documents mailed to the court that predated the court’s order informing her to

cure deficiencies. R. Doc. 10. The district court construed the motion for

reconsideration as arising under Fed. R. Civ. P. 60(b) because more than ten days

had elapsed from the judgment. R. Doc. 17 at 2. The district court then denied it

on the ground that prior submissions would not have been responsive to a later

order to cure deficiencies. 

judgment of dismissal is before us, as no notice of appeal was

filed from the denial of the motion for reconsideration. Fed. R. App. P. 4(a)(1).

We find no abuse of discretion; it was incumbent upon Ms. Siler to respond to the

magistrate judge’s order after it was issued, and we find no argument on appeal as

to why the dismissal was an abuse of discretion. See Fed. R. Civ. P. 41(b); see

also Petty v. Manpower, Inc., 

, 617-18 (10th Cir. 1979).

      AFFIRMED. We DENY Ms. Siler’s application to proceed without

prepayment of the appellate filing fee and order immediate payment of the unpaid

balance due.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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