Ellis v. Brown

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 4, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DARRELL ELLIS; GARY
PENNINGTON; JOHN TAYLOR;
JAM ES W ALLACE WO LFE; LARRY
CHANEY; ARLEY LEE DUNCAN;,
Plaintiffs-Appellants, No. 07-6024
v. (W .D. Oklahoma)
JAM ES M . BROW N, SR., Oklahoma (D.C. No. 06-CV-1156-R)
Pardon & Parole B oard; C LIN TON
JOHNSO N, Oklahoma Pardon &
Parole Board; RICH AR D L.
DUGGER, Oklahoma Pardon & Parole
B oard; SU SA N B. LO V IN G ,
Oklahoma Pardon & Parole Board;
LYNNELL HARKINS, Oklahoma
Pardon & Parole Board; TERRY
JENKS, Oklahoma Pardon & Parole
Board,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.
*
This order and judgment is not binding precedent except under the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 with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
After examining appellant’s brief and the appellate record, this court 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.
Proceeding pro se, Darrell Ellis and five other O klahoma state prisoners
(“Plaintiffs”) appeal the district court’s sua sponte dismissal of the civil rights
complaint they brought pursuant to 42 U.S.C. § 1983. In the complaint, Plaintiffs
challenged Oklahoma’s parole procedures. In a comprehensive Report and
Recommendation, the federal magistrate judge concluded Plaintiffs were seeking
to relitigate issues and claims that had already been decided unfavorably to them
by the Oklahoma state courts. The magistrate recommended dismissing
Plaintiffs’ complaint in its entirety for failure to state a claim upon which relief
may be granted.
The magistrate judge clearly advised Plaintiffs that the failure to make a
timely objection to the Report and Recommendation waives the right to appellate
review of the factual and legal issues addressed therein. Only Plaintiff Ellis filed
an objection to the Report and Recommendation. 1 Ellis asserted the Oklahoma
1
Ellis purported to file objections on behalf of himself and plaintiffs
Pennington, Taylor, Chaney, W olfe, and Duncan. This court has held, however,
that “[a] litigant may bring his own claims to federal court without counsel, but
not the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320,
1321 (10th Cir. 2000). Because the issues raised in this appeal come under our
firm waiver rule, we dismiss the appeals of Pennington, Taylor, Chaney, W olfe,
(continued...)
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courts failed to provide him with a full and fair opportunity to litigate his claims.
Concluding to the contrary, the district court adopted the magistrate judge’s
recommendation and dismissed the complaint.
W e have reviewed the record, the appellate brief, and the applicable law
and can discern no reversible error by the district court. Accordingly, the
dismissal of Ellis’ § 1983 complaint is affirmed for substantially the reasons
stated in the Report and Recommendation dated November 28, 2006, and the
district court’s order dated January 3, 2007.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
1
(...continued)
and Duncan. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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