Fazzini v. Thompson ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 25 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PAUL FAZZINI,
Petitioner-Appellant,
v. No. 96-6174
(D.C. No. CIV-95-1982)
RON THOMPSON; JANET RENO; (W.D. Okla.)
UNITED STATES OF AMERICA;
LARRY BARNES; CHARLES
MILNER; THOMAS JAMES;
WILLIAM JETER; BILLY
MCCORMACK; PHIL MAUNE;
DIANE MOORE; CARBONE; JOHN
DOE; FEDERAL BUREAU OF
PRISONS; FEDERAL BUREAU OF
INVESTIGATION,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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 case is therefore
ordered submitted without oral argument.
Petitioner Paul Fazzini, proceeding pro se, appeals the district court’s order
adopting the magistrate judge’s recommendation to dismiss his complaint without
prejudice. He also appeals the district court’s denial of his motion for a
temporary restraining order and his request for appointment of counsel. The
district court dismissed the complaint for failure to set out a short, plain statement
of his claims as required by Fed. R. Civ. P. 8(a)(2), and for failure to submit the
claims on the forms designated pursuant to the local rules of court.
Petitioner’s complaint contained claims that various constitutional,
statutory and common law rights were violated by prison conditions, disciplinary
proceedings, confiscation of legal materials, and other actions of prison officials
and those who supervise and train them. 1 We have reviewed the district court
record and we have considered petitioner’s arguments in light of the record and
the applicable law. We affirm the district court’s order dismissing the complaint
1
The habeas claims were brought under 28 U.S.C. § 2241. Therefore, no
certificate of appealability is required. See Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996).
-2-
without prejudice for substantially the same reasons stated in the magistrate
judge’s April 3, 1996 report and recommendation.
Petitioner’s appeal from the order denying his motion for a temporary
restraining order is moot because the detention order he sought to enjoin has been
executed. See Thournir v. Buchanan, 710 F.2d 1461, 1463 (10th Cir. 1983) (issue
of injunction is moot where event sought to be enjoined has occurred). Petitioner
asserts on appeal that he has suffered adverse consequences of the detention
order. Those claims were not before the district court; therefore, we do not
address them. See Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th
Cir. 1992). Finally, we affirm the district court’s order denying appointment of
counsel, finding no abuse of discretion. See Shabazz v. Askins, 14 F.3d 533, 535
(10th Cir. 1994).
Petitioner’s motion for appointment of counsel on appeal is denied. The
judgment of the United States District Court for the Western District of Oklahoma
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
John C. Porfilio
Circuit Judge
-3-