Esnault v. Suthers, 10th Cir. (2003)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
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
Before LUCERO , McKAY , and BALDOCK , 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This order and judgment is not binding precedent, except under the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
summary judgment . After
briefing, the magistrate judge issued her recommendation to dismiss all of

plaintiffs claims except his injunctive claims against
defendant s Furlong and
Zavislan. The parties were given ten days to file objections.

Plaintiff failed to timely file objections to the magistrate judges April 16,
2002, recommendation.
Defendant s did object within the deadline, contending
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
-2-
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
defendant s objections. After reviewing plaintiffs objections as to the remaining

equitable claims de novo, the district court dismissed those claims on mootness
grounds.
On appeal, plaintiff challenges the district courts rulings on all of his
claims. We have jurisdiction over this appeal by virtue of 28 U.S.C. 1291.
Our review, however, is limited to the district courts dismissal of plaintiffs
injunctive claims against
defendant s Furlong and Zavislan. Because plaintiff did
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.
See Moore v. United States , 950 F.2d 656,
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,
-3-
and requests a reimbursement of funds in connection with his suit. These

arguments lack merit. Further, our
de novo review of the record on appeal leads
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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Esnault v. Suthers, 10th Cir. (2003)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Before LUCERO , McKAY , and BALDOCK , Circuit Judges.

summary judgment . After

briefing, the magistrate judge issued her recommendation to dismiss all of

defendant s Furlong and

Zavislan. The parties were given ten days to file objections.

Defendant s did object within the deadline, contending

defendant s objections. After reviewing plaintiffs objections as to the remaining

defendant s Furlong and Zavislan. Because plaintiff did

See Moore v. United States , 950 F.2d 656,

and requests a reimbursement of funds in connection with his suit. These

de novo review of the record on appeal leads

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