Porter v. Stickley ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 2 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH E. PORTER,
Plaintiff-Appellant,
No. 97-4022
v. (D.C. No. 95-CV-538-C)
(District of Utah)
JEFFREY T. STICKLEY,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRORBY, EBEL and KELLY, Circuit Judges.
Joseph Porter (“Porter”) brought suit under 42 U.S.C. § 1983 against his probation
officer, Jeffrey Stickley (“Stickley”), alleging that Stickley had violated Porter’s
constitutional rights by insisting that Porter remain employed during his probation and by
allowing a camera crew to film Porter’s arrest for probation violations. (R. 12.) The
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
district court granted Stickley summary judgment. (R. 46.) Porter appeals and seeks to
proceed in forma pauperis. We deny him permission to proceed in forma pauperis and
dismiss the appeal as frivolous.
Below, the district judge referred the case to a magistrate judge for a report and
recommendation. (R. 6.) The magistrate judge recommended that Stickley’s motion for
summary judgment be granted. (R. 44 at 7.) The report and recommendation directed
parties to file objections to its findings and conclusions and warned that failure to do so
would constitute a waiver of issues on appeal. (R. 44 at 7-8.) Porter’s sole objection was
that the magistrate judge did not grant his motion for a default judgment (which Porter
filed after Stickley failed to reply to Porter’s response to Stickley’s motion for summary
judgment). (R. 45.) The district court found Porter’s objection meritless, adopted the
magistrate judge’s report and recommendation, and granted summary judgment for
Stickley. (R. 46.)
“Failure of a plaintiff to object to a magistrate judge’s recommendations results in
a waiver of appellate review. This remains true for pro se litigants if the plaintiff was
properly informed of the consequences of his failure to object.” Fottler v. United States,
73 F.3d 1064, 1065 (10th Cir. 1996) (internal citations omitted). The report and
recommendation warned Porter that he must submit objections to preserve issues for
appeal. (R. 44 at 7-8.) Consequently, the only issue Porter preserved for appeal is
whether the court should have granted his motion for a default judgment. Given that the
District of Utah does not require a party moving for summary judgment to file a reply
brief opposing the non-movant’s response, see District of Utah Rule 202(b)(3), it was not
an abuse of discretion for the court to deny Porter’s motion.
Porter’s appeal is frivolous. Thus, we DENY him permission to proceed in forma
pauperis and, pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) (1996),
DISMISS the appeal. This appeal counts as a “strike” pursuant to the Prison Litigation
Reform Act. See 28 U.S.C. § 1915(g) (1996).
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge