470 F.3d 954 (10th Cir. 2006), 05-1210, Wardell v. Duncan

Docket Nº:05-1210.
Citation:470 F.3d 954
Party Name:Wendel R. WARDELL, Jr., Plaintiff-Appellant, v. Sondra DUNCAN, individually and officially; Gloria Masterson; Joseph G. Ortiz, officially; Toney Welch, individually and officially, Defendants-Appellees.
Case Date:November 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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470 F.3d 954 (10th Cir. 2006)

Wendel R. WARDELL, Jr., Plaintiff-Appellant,


Sondra DUNCAN, individually and officially; Gloria Masterson; Joseph G. Ortiz, officially; Toney Welch, individually and officially, Defendants-Appellees.

No. 05-1210.

United States Court of Appeals, Tenth Circuit.

Nov. 30, 2006

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Wendel R. Wardell, Jr., Pro Se.

Nicole S. Gellar, Assistant Attorney General, John W. Suthers, Attorney General of Colorado, Denver, CO, for Defendants-Appellees.

Before HENRY, ANDERSON, and McCONNELL, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff Wendel R. Wardell, Jr. appeals from a district court order granting defendants' motion for summary judgment and dismissing his pro se prison civil rights action brought under 42 U.S.C. § 1983. He also challenges the denial of motions to amend his pleadings and to compel compliance with discovery requests. We affirm for the reasons explained below. [*]

This action was prompted by prison officials' interception of three parcels mailed to plaintiff in March and April 2001, when he was incarcerated at the Fremont Correctional Facility in Canon City, Colorado. The first contained books from a "Mystery Guild" book club; the other two contained legal documents from the Colorado State Archives and the Library of Congress which had been purchased for plaintiff by a third party who was listed as another inmate's visitor and, thus, fell within a Colorado Department of Corrections (CDOC) prohibition on gifts from unauthorized sources.

In his complaint, plaintiff characterized "the nature of the case" as "a constitutional challenge" to CDOC policies requiring prisoners to "purchase all hobby work, legal materials, books and magazine subscriptions from their inmate trust fund accounts" and banning gifts of such materials from unauthorized sources. R., Doc. 3 at 3. He pled claims under (1) the First Amendment, alleging that the prohibition on gifts was not reasonably related to any penological goals and that his pursuit of other cases had been impeded by the loss of legal materials, id. at 4-4B; and (2) the Due Process Clause, alleging that he was deprived of property without recourse to challenge the deprivation, id. at 5. He also pled a claim under the Racketeer Influenced and Corrupt Organizations Act, which he has effectively abandoned.

At the outset, it is important to clarify a significant limitation on the scope of this appeal. Although the complaint suggests a broad facial attack on the regulations prohibiting gift purchases of subscriptions and the like, the case has been narrowed substantially due to a mootness consideration. While this action was pending below, plaintiff was paroled out of the state prison system. The district court consequently dismissed his claims insofar as they sought declaratory and injunctive relief invalidating the regulations. That disposition was correct, see Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir.2004) (following Green v. Branson, 108 F.3d 1296, 1299 (10th Cir.1997)), 1 and left only a damages claim based on application of the regulations to plaintiff's particular situation.

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Early in the case, the magistrate judge recommended granting a motion to dismiss the due process claim. When plaintiff did not object, the district court summarily adopted the recommendation and dismissed the claim. Defendants argue that the matter is now beyond challenge, invoking our "firm waiver rule" under which timely objection to the magistrate judge's recommendation is a condition for appellate review. See, e.g., id. at 1197. We agree.

The waiver rule applies to pro se litigants, provided they were informed of the time period for objecting and the consequences of failing to object. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005). Here, the magistrate judge specifically advised plaintiff of these conditions. R., Doc. 58 at 3, 10.

The waiver rule may be suspended when the "interests of justice" warrant, Wirsching, 360 F.3d at 1197-98, or when the aggrieved party makes the onerous showing required to demonstrate plain error, Morales-Fernandez, 418 F.3d at 1120. While plaintiff continues to argue he was denied due process, he does not even mention the procedural omission on which the district court's disposition of his due process claim was based, much less argue that this disposition was somehow unjust. Nor has he submitted a reply brief to respond to defendants' specific invocation of the waiver rule on appeal. He did argue below, after the claim was dismissed, that his failure to object was excusable because the recommendation was sent to a prison from which he had been transferred. As he had failed to notify the court of his change of address, however, he "bore some responsibility for the failure to receive the ... recommendation" and, thus, interests of justice would not warrant our suspension of the waiver rule even if he had argued this point on appeal. Wirsching, 360 F.3d at 1197 (explaining basis for enforcement of waiver rule in Theede v. United States Department of Labor, 172 F.3d 1262, 1268 (10th Cir.1999)).

We also see no basis for suspending the waiver rule under the plain error standard. "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Morales-Fernandez, 418 F.3d at 1122-23 (quotation omitted). Plaintiff's due process claim was premised on the lack of a post-deprivation remedy for the diversion and destruction of materials sent to him in the mail. R., Doc. 3 at 5. The magistrate judge concluded that this claim was not legally viable: if based on negligence, it failed under Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); if based on deliberate misconduct, it failed in light of the remedy for willful and wanton conduct by public employees provided in Colo.Rev.Stat. § 24-10-118, which encompasses damage to or loss of property, Colo.Rev.Stat. § 24-10-103(2). See R., Doc. 58 at 7. Plaintiff does not contest either part of this rationale on appeal (and did not do so below in response to the motion to dismiss), much less demonstrate an error so plain and substantial as to satisfy the other requirements for plain error review cited above. 2 We need not pursue the point any further. Indeed, to do so would undercut not only the firm waiver rule in particular but also

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general limitations on review of issues not preserved in district court and/or properly presented on appeal.



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