Michael Bartowsheski, Plaintiff-appellant, v. Sadie Lopez, Captain Waide Gloria Greenmiesal, Peggy Hiel,department of Corrections, Colorado, Defendants-appellees, 42 F.3d 1406 (10th Cir. 1994)

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).

AFFIRMED. We GRANT Mr. Bartowsheski leave to proceed in forma pauperis. The mandate shall issue forthwith.