Denoyer v. Walker ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 16 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DALE ERNEST DENOYER,
Plaintiff-Appellant,
v. No. 98-1211
(District of Colorado)
RON WALKER, Chaplains (D.C. No. 96-S-2177)
Department, United States
Penitentiary, Florence, Colorado,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, 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. 34.1.9. The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Dale Ernest Denoyer, proceeding pro se, appeals the district court’s
dismissal of Denoyer’s civil right’s complaint against Ron Walker, a chaplain at
the United States Penitentiary in Florence, Colorado. This court exercises
jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
Denoyer filed this civil right complaint in 1996, naming Walker and several
other defendants. 1 Denoyer requested money damages and injunctive relief,
asserting Walker had interfered with Denoyer’s right to practice his Native
American religion. The matter was referred to a magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) for preparation of a Report and Recommendation (the
“R & R”). In the R & R, the magistrate judge recommended as follows: (1)
Denoyer’s claims against Walker in his official capacity for money damages were
barred under the Federal Tort Claims Act because Denoyer had failed to
adequately exhaust his administrative remedies, see 28 U.S.C. § 2675; (2)
Denoyer’s claims against Walker in his individual capacity were barred under the
Prison Litigation Reform Act because Denoyer failed to adequately exhaust his
1
The district court dismissed Denoyer’s claims as to one of the additional
original defendants because Denoyer failed to provide necessary information to
affect service of process on that defendant. As to all of the other additional
original defendants, the district court dismissed Denoyer’s claims as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) on the grounds that
those defendants were not personally involved in the incidents giving rise to the
lawsuit. Denoyer has not challenged on appeal the district court’s dismissal of
the additional original defendants.
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administrative remedies, see 42 U.S.C. § 1997e(a); and (3) to the extent Denoyer
was not obligated to exhaust his administrative remedies on his claim for money
damages against Walker in his individual capacity under this court’s decision in
Garrett v. Hawk, 127 F.3d 1263 (1997), Walker was entitled to qualified
immunity. After de novo review, the district court adopted the R & R and
dismissed the appeal.
Upon de novo review of the parties’ briefs and contentions, the magistrate
judge’s R & R, the district court’s order, and the entire record on appeal, this
court AFFIRMS for substantially those reasons set forth in the magistrate judge’s
thorough R & R dated January 8, 1998, and the district court Order dated May 20,
1998.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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