* This order and judgment is not binding precedent, except under the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. 

** Honorable John W. Lungstrum, District Judge, United States District Court

for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 10/23/96

FOR THE TENTH CIRCUIT

GEORGE E. DAGO,

Plaintiff-Appellant,

v.

ROBERT CLARK; and an unknown

number of Marshals in the employ of

the United States Marshals Service,

individually and in their official

capacities,

Defendants-Appellees.

No. 96-1094

(D.C. No. 95-M-888)

(D. Colo.)

ORDER AND JUDGMENT*

Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM,** District

Judge.
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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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff appeals from a district court order granting defendants’ motion for

summary judgment. We affirm. 

The defendants are the United States Marshals and Assistant United States

Attorney who effected the seizure and civil forfeiture of plaintiff’s property in

connection with his prosecution on various drug trafficking charges. The

forfeiture proceeding concluded with a consent judgment, which ordered some of

the property seized to be forfeited and the rest returned to plaintiff or his wife. 

Sometime later, plaintiff commenced this action for constitutional redress under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), claiming defendants had violated his due process rights because

various items of released property allegedly had been “lost, given away, or stolen”

through their negligence, deliberate indifference, and/or conversion. See R. I

doc. 3, at 9-12. During the course of the litigation, plaintiff interjected an

additional due process claim based on the manner in which some of the property

had been seized. Ultimately, the district court granted defendants’ motion for

summary judgment on grounds of res judicata and immunity.
1 Defendants also insist plaintiff’s appeal is subject to waiver for failure to

object to the magistrate judge’s recommendation. We reject this contention, 

however, as the record contains a timely objection from plaintiff, R. I at doc. 19,

which was specifically acknowledged by the district court, id. doc. 20.

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On appeal, plaintiff has abandoned the claims regarding loss of property

and illegal seizure urged in the district court, and has turned to a completely new

attack on the legality of the forfeiture proceeding itself. He now contends the

continuation of that proceeding while the associated criminal complaint was

dismissed and then reinstated upon indictment, was unauthorized and

unconstitutional. In their answer brief, defendants point out the obvious

procedural infirmity of plaintiff’s appeal and ask us to enforce applicable waiver

principles, under which plaintiff has jeopardized both his original, abandoned

claims and his new, unpreserved contentions.1 See generally Lyons v. Jefferson

Bank & Trust, 994 F.2d 716, 720-21 (10th Cir. 1993); Dixon v. City of Lawton,

898 F.2d 1443, 1449 n.7 (10th Cir. 1990). 

In his reply brief, plaintiff makes no attempt to justify his assertion of

different claims before this court than were urged before the district court or to

offer any reason for excepting the case from the waiver consequences that

ordinarily attend such conduct. Instead, he presents yet another digression from

his original allegations, arguing such collateral matters as the inadequacy of the

field testing done on the contraband underlying his drug conviction and the
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inability to trace the property seized as proceeds from the "drug sales"--issues

clearly foreclosed in any event by his guilty plea in the criminal prosecution and

his consent to judgment in the civil forfeiture. We conclude that plaintiff has

lost, through unexcused waiver, all of the issues raised in support of this lawsuit,

both in the district court and on appeal.

There being nothing left for this court properly to review, the judgment of

the district court is AFFIRMED. The mandate shall issue forthwith. 

Entered for the Court

Mary Beck Briscoe 

Circuit Judge