Esnault v. Suthers, 10th Cir. (2003)
Esnault v. Suthers, 10th Cir. (2003)
APR 1 2003
PATRICK FISHER
Clerk
ALVIN D. ESNAULT,
Plaintiff-Appellant,
v.
JOHN SUTHERS; DONA
ZAVISLAN; JEFF REVORD;
SCOTT DUDEN; ROBERT
FURLONG, each in their individual
capacity, singularly, jointly and
severally,
No. 02-1298
(D.C. No. 01-B-15 (PAC))
(D. Colo.)
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
This order and judgment is not binding precedent, except under the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.
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.
Plaintiff-appellant Alvin Esnault, Jr., appeals from the district courts
rulings dismissing civil rights claims arising out of his termination from the
religious diet program at the Sterling Correctional Facility. His complaint alleged
violations of his First Amendment right to the free exercise of his religion and his
Eighth Amendment right to be free of cruel and unusual punishment, and sought
both injunctive relief and monetary damages. He was later allowed to amend his
complaint to include claims under the Religious Land Use and Institutionalized
Persons Act and a Colorado statute. Defendants filed a motion to dismiss, which
the magistrate judge converted into a motion for
that any equitable claims remaining should be dismissed as moot because plaintiff
had been reinstated to the religious diet program several months earlier. On
May 6, 2002, the district court issued its first order, noting plaintiffs failure to
file timely objections, and dismissing all claims except the injunctive claims
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against defendant s Furlong and Zavislan. As to these claims, the district court
allowed plaintiff another ten-day period to file objections to
defendant s argument
that the claims should be dismissed as moot. On May 9, 2002, plaintiff filed both
objections to the magistrate judges recommendation and a response to the
not timely file objections to the magistrate judges recommendation, and because
he does not demonstrate just cause for his untimeliness, he has waived appellate
review of those issues and arguments.
659 (10th Cir. 1991). We review de novo the district courts dismissal of
plaintiffs injunctive claims as moot, as a matter of federal jurisdiction.
F.E.R. v. Valdez , 58 F.3d 1530, 1532-33 (10th Cir. 1995).
Plaintiff does not present arguments on the district courts ruling that his
injunctive claims are moot. He does contend that the district court abused its
discretion in failing to rule on his motion for injunctive relief for over a year,
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us to agree with the district courts conclusion that the injunctive claims were
mooted by plaintiffs reinstatement to the religious diet program. Therefore, the
district court correctly dismissed these claims. The judgment of the United States
District Court for the District of Colorado is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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