Matthews v. Potter

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 19 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TRACY MATTHEWS, an individual,
Plaintiff-Appellant,
No. 03-1203
v. (D.C. Nos. 00-M-897, 00-M-1616,
00-M-1617, 01-M-134)
JOHN POTTER, Postmaster General, (D. Colo.)
United States Postal Service,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and TYMKOVICH , 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(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This order and judgment is not binding precedent, except under the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. 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.
Appellant Tracy Matthews challenges orders of the district court
1) granting summary judgment to defendant s on all claims in his four
consolidated cases; and 2) limiting discovery. Our jurisdiction over this appeal
arises from 28 U.S.C. § 1291. We review the district court’s summary judgment
ruling de novo , applying the same standards as did the district court in
determining appellant’s claims. See Simms v. Okla. ex rel. Dep’t of Mental
Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Our
review of the court’s discovery rulings, however, is limited to determining
whether the court abused its discretion. See GWN Petroleum Corp. v. OK-Tex Oil
& Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993). Because appellant proceeds pro
se, we liberally construe his filings. Cummings v. Evans , 161 F.3d 610, 613 (10th
Cir. 1998). However, we will not imply factual allegations or create legal
theories on a pro se plaintiff’s behalf. Whitney v. New Mexico , 113 F.3d 1170,
1173-74 (10th Cir. 1997).
We have carefully reviewed the record in these consolidated cases, together
with the parties’ briefs, in light of these standards and applicable law. We note
that appellant has raised arguments and theories which were not preserved for
appeal, either because they were not raised to the district court or because they
were not preserved by inclusion in appellant’s objections to the magistrate judge’s
recommendation on his claims, later adopted by the district court. Therefore, we
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decline to consider these arguments. See Walker v. Mather (In re Walker) ,
959 F.2d 894, 896 (10th Cir. 1992); Whitehead v. Okla. Gas & Elec. Co. ,
187 F.3d 1184, 1190 (10th Cir. 1999) . In light of appellant’s remaining
arguments, we conclude that the district court correctly granted summary
judgment to defendant s in these consolidated cases and that the district court’s
discovery rulings were not an abuse of its discretion. For substantially the same
reasons contained in the magistrate judge’s thorough and careful recommendation,
adopted by the district court, the judgment of the district court is AFFIRMED.
Appellant’s “Motion to Amend” his appeal to include certain discovery rulings is
GRANTED. The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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