Neely v. Ortiz , 241 F. App'x 474 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 19, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R OBER T A . N EELY ,
Plaintiff-Appellant,
v. No. 06-1314
(D.C. No. 03-cv-616-EWN-PAC)
JOE O RTIZ, C.D.O.C.; OFFEND ER (D . Colo.)
SERVICES, Classification,
C.D.O.C.; JOH N D OE; CH IEF
M EDIC AL OFFICER, C.D.O.C.;
JO H N D OE; A N TH O N Y DEC ESERO,
C .D .O .C .; C OR REC TIO N A L
C ORPO RA TIO N S O F A M ER ICA,
Executive Director; H. BRILL,
K.C.C.C.; J. FUCH S, K.C.C.C.; M S.
BLAKE, K.C.C.C.; M S. W EDERSKI;
H ILL, N urse, K .C .C .C .; D R. R AND,
K.C.C.C.; DR. M CGARRY, C.D.O.C.;
DR. BLOOR, C.D.O.C.; M S. BLAIR,
K.C.C.C.; M S. BARBER, K.C.C.C.;
W ARDEN W ATKINS, F.C.F.; DR.
C REA N Y, F.C .F.; M A STER SON,
F.C.F.,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Robert A. Neely, proceeding pro se, appeals the district court’s judgments
in favor of defendants in this suit under 42 U.S.C. § 1983 and Colorado state law.
W e have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .
Defendants are employees and agents of the Colorado Department of
Corrections (CDOC) and employees of the Kit Carson Correctional Center
(KCCC), a private correctional facility. Neely’s claims primarily focus on the
denial and delay of medical treatment for H epatitis C and a hernia during his
incarceration. His amended complaint alleged violations of his constitutional
rights to due process and medical treatment and state-law claims of medical
malpractice, intentional infliction of emotional distress, and negligence.
Defendant Ortiz filed a motion to dismiss and defendant DeCesaro filed a
motion for summary judgment or, in the alternative, to dismiss. On September 1,
2004, the magistrate judge recommended granting the motions. Over Neely’s
objections, the district court ordered judgment in favor of Ortiz and DeCesaro.
Court-located volunteer counsel subsequently entered his appearance for
Neely. Neely moved for partial summary judgment, and CDOC defendants
M cGarry, Bloor, W atkins, Creany, and M asterson and KCCC defendants
W ederski, Hill, Brill, and Fuchs moved for summary judgment. On M arch 2,
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2006, the magistrate judge recommended that Neely’s motion for partial summary
judgment be denied and that the Eighth Amendment claims against M cGarry,
Bloor, Creany, and Hill be allowed to continue. She also recommended granting
judgment to all defendants on the due process and state law claims and dismissing
W atkins, M asterson, Fuchs, W ederski, Brill, Blake, and the Director of the
Corrections Corporation of America. She noted some defendants had not moved
for summary judgment and therefore concluded that any remaining claims against
them should continue. Neely did not file any objections to the magistrate judge’s
recommendation. M cGarry, Bloor, Creany, and Hill objected to the
recommendation on the Eighth Amendment claims. The district court accepted
the recommendation in part, granting judgment against Neely as recommended,
and denied it in part after determining that all defendants w ere entitled to
summary judgment on all remaining claims. It also struck Neely’s partial
summary judgment motion for failure to comply with the court’s standards.
W e review de novo the district court’s dismissal and grant of summary
judgment. Santana v. City of Tulsa, 359 F.3d 1241, 1243 (10th Cir. 2004).
Because Neely represents himself on appeal, we construe his filings liberally. Id.Neely contends (1) the district court should have handled his case more
systematically; (2) he should have had a trial because some claims were never
addressed, some defendants never moved for summary judgment, and the KCCC
defendants were not entitled to qualified immunity; (3) his counsel was
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ineffective; (4) the district court erred in holding his claim for injunctive relief
was moot; (5) the magistrate judge erred in recommending judgment for
defendant M asterson and in dismissing the due process claims; (6) the district
judge allowed anger over counsel’s failure to comply with the judge’s standards
to guide his decisions, including striking Neely’s motion for partial summary
judgment; and (7) the magistrate judge’s decision was more informed than the
district court’s ultimate ruling.
Neely cannot now challenge the disposition of most of his claims. Under
our “firm waiver rule,” a party who fails to file timely objections to a magistrate
judge’s report and recommendation waives appellate review. See Wirsching v.
Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004) (quotation omitted). Neely did
not object to the M arch 2, 2006, report and recommendation. Therefore, the firm
waiver rule bars our consideration of all issues resolved against him by that
recommendation. 1 Neely did object to the magistrate judge’s September 1, 2004,
1
This court may decide not to apply the firm waiver rule “when the interests
of justice so dictate.” See Wirsching, 360 F.3d at 1197 (quotation omitted). W e
find no reason to apply this exception in this case, especially given that Neely
was counseled at the time.
Neely asserts on appeal that his counsel was ineffective, and we recognize
that the magistrate judge refused his request to release his counsel from the case.
See R., Vol. II, Doc. 227 at 2; id., Doc. 229 at 1. The record does not show that
Neely made any further efforts to have his counsel relieved, either by filing
objections with the district court or making any further complaints to the
magistrate judge. Because Neely did not adequately raise this issue in the district
court, he cannot now argue it on appeal. See Wirsching, 360 F.3d at 1197(discussing firm waiver rule); Walker v. M ather (In re Walker), 959 F.2d 894, 896
(continued...)
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report and recommendation, and obviously he is not required to object to
recommendations in his favor. Thus, we may still review the following issues:
(1) the disposition of the claims against Ortiz and DeCesaro; and (2) the grant of
summary judgment to M cGarry, Bloor, Creany, and Hill on the Eighth
Amendment claims. 2 W e also may review the court’s disposition of the claim for
injunctive relief and its striking of Neely’s m otion for partial summary judgment,
as those decisions did not stem from the magistrate judge’s recommendations.
The district court thoroughly analyzed Neely’s claims. Substantially for
the reasons expressed in the September 1, 2004, report and recommendation and
the September 28, 2004, district court order, we hold that the district court did not
err in granting judgment to defendants O rtiz and DeCesaro. Also, substantially
for the reasons expressed by the June 22, 2006, district court order, we hold that
the district court did not err in granting judgment to defendants M cG arry, Bloor,
Creany, and Hill on the Eighth Amendment claims. As the district court noted,
Neely did not challenge the constitutionality of the CDOC’s Hepatitis C treatment
1
(...continued)
(10th Cir. 1992) (noting this court does not generally consider issues not raised
below); see also Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002)
(discussing general rule that clients are bound by their “counsels’ inaction”)
(quotation omitted).
2
Neely contends the district court acted sua sponte in granting judgment to
Bair, Barber, and Rand. Apparently, however, Neely agreed that “the case should
be dismissed in its entirety as to Defendants Rand, Bair, and Barber.” R ., Vol.
III, Doc. 308 at 17 (district court’s June 22, 2006 order). Accordingly, he cannot
now complain about the court’s entry of judgment in their favor.
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policy. R., Vol. III, Doc. 308 at 23 n.1l.
Nor did the district court err in holding the request for injunctive relief
moot. Neely’s amended complaint requested that the court order the prison
officials to give him Interferon treatment. Before the district court ruled,
however, N eely began Interferon treatment, essentially receiving what he sought.
Because the court could no longer grant any effective relief, the request for
injunctive relief was moot. Osborn v. Durant Bank & Trust Co. (In re Osborn ),
24 F.3d 1199, 1203 (10th Cir. 1994).
Finally, we review the order to strike for abuse of discretion. See Fowler
Bros. v. Young (In re Young), 91 F.3d 1367, 1377 (10th Cir. 1996). The district
court struck the motion for non-compliance w ith the court’s practice standards,
which was within the court’s discretion. See generally M otley v. M arathon Oil
Co., 71 F.3d 1547, 1552 (10th Cir. 1995) (“W e are particularly loath to find that a
district court abused its discretion with a decision regarding the enforcement of
its own local rules.”). In any event, Neely was not prejudiced by the decision, as
the district court simultaneously granted summary judgment to defendants on all
claims and would have therefore denied the motion had it not stricken it.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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