joseph-w-higgins-v-louis-d-rovira-mac-danford-nicholas-r-massaro , 30 F.3d 141 ( 1994 )

30 F.3d 141
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Joseph W. HIGGINS, Plaintiff-Appellant,
v.
Louis D. ROVIRA, Mac Danford, Nicholas R. Massaro, Adam
Gollin, Thomas M. Deister, Judy Myers, David Wooley, Donice
Neal, R.W. Essert, Jerry Sylvia, C.E. Donley, J. Poole, and
John Hadely, all in their individual capacities, Defendants-Appellees.

No. 94-1085.

United States Court of Appeals, Tenth Circuit.

July 15, 1994.

Before LOGAN, SETH, and BARRETT, Circuit Judges.

ORDER AND JUDGMENT*

SETH, Circuit Judge.

1

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); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2

Appellant Joseph Higgins is a prisoner at the Colorado State Penitentiary. He filed a civil rights complaint that was interpreted by the magistrate and district court as also asserting a request for a writ of habeas corpus. The magistrate recommended that Appellant's action be dismissed and the district court agreed. In its Order of Dismissal, the district court concluded that Appellant did not file any objections to the magistrate's report and recommendation. The court adopted the magistrate's findings and conclusions.

3

On appeal, Appellant claims that he did file objections and therefore he was unjustifiably denied de novo review by the district court. Although the district court's Order of Dismissal appears to be well-reasoned, we agree with Appellant's contention.

4

It is well settled that a district court must review de novo any portion of a magistrate's recommendation to which a party objects. Docket entry seven reflects that Appellant filed objections to the magistrate's recommendation on January 1, 1994. We have reviewed this document and find that Appellant has indeed filed objections. Since the court expressly found that no such objections were filed and made no mention of de novo review, we must conclude that the district court inadvertently failed to employ de novo review.

5

Accordingly, the district court's decision is VACATED and the case is REMANDED for additional review under the applicable standard. While on remand, the court should also address Appellees' assertion that to date no Appellee has been properly served or made a party to this action. Appellant's motions to prohibit participation of the Attorney General and to enforce an injunction are DENIED. The mandate shall issue forthwith.

*

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470