Braun v. Elliott ( 1999 )

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
March 18, 1999
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 98-6151, Braun v. Elliot
Filed on February 24, 1999
The order and judgment filed on February 24, 1999, contains two
typographical errors. On page 2, lines 12-13, first full paragraph, the sentence
should read: “ Thus, he recommended that the action be dismissed pursuant to 28
U.S.C. § 1915(g). ” Also on page 2, lines 17-18, first sentence of the last paragraph,
the sentence should read: “ On appeal, Mr. Braun raises a constitutional challenge to
28 U.S.C. § 1915(g).
A copy of the corrected order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
FEB 24 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
CONRAD J. BRAUN,
Petitioner-Appellant,
No. 98-6151
v. (D.C. 97-CV-2057)
(Western District of Oklahoma)
W. ELLIOTT, Official Capacity as
Corrections Officer for FCI
El Reno; A. M. FLOWERS, Warden,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , 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.
Plaintiff Conrad J. Braun, a federal prisoner appearing pro se, timely
*
This order and judgment is not binding precedent, except under the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.
appeals the district court's dismissal of his civil rights action pursuant to 28
U.S.C. § 1915(g) without prejudice to refiling upon full payment of the filing
fee. We deny him leave to proceed in forma pauperis and dismiss the appeal.
In his report to the district court, the magistrate judge took judicial note
that Mr. Braun had three prior actions that were dismissed on the grounds they
were frivolous, malicious, or failed to state a claim. Report and
Recommendation, Rec. doc. 10, at 2 (W.D. Okla. Feb. 13, 1998); see Green v.
Nottingham , 90 F.3d 415, 418 (10th Cir. 1996) (federal courts may take judicial
notice of proceedings in other courts if they directly relate to presently disputed
matters). The magistrate also found that Mr. Braun was not under imminent
danger of serious physical injury. Id. at 3. Thus, he recommended that the action
be dismissed pursuant to 28 U.S.C. § 1915(g). Mr. Braun did not file any
objections to the magistrate's report. Accordingly, the district court issued an
order on March 23, 1998 adopting the magistrate's report in its entirety and
dismissing the action. Rec. doc. 11.
On appeal, Mr. Braun raises a constitutional challenge to 28 U.S.C. §
1915(g). Failure to timely object to the magistrate's report and recommendation,
however, waives appellate review of both factual and legal questions determined
by the magistrate. See Moore v. United States , 950 F.2d 656, 659 (10th Cir.
1991) (adopting “firm waiver” rule). Here, the magistrate clearly informed Mr.
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Braun of the consequences of not making timely objections, and this case
presents no ends of justice that warrant making an exception. 1
See id. (holding
waiver applicable to pro se litigant only when magistrate has informed litigant of
consequences of failure to object, unless ends of justice dictate otherwise).
Accordingly, because Mr. Braun has waived appellate review, we DENY
him leave to proceed in forma pauperis and DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
1
We also note that during the pendancy of this appeal, we rejected just such
a constitutional challenge to 28 U.S.C. § 1915(g). See White v. Colorado , 157
F.3d 1226, 1232-35 (10th Cir. 1998), petition for cert. filed (U.S. Jan. 5, 1999)
(No. 98-7542).
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